Please note: Divorce is one of the most complex legal actions anyone can engage in. It affects parental rights, property rights, income, taxes, insurance, retirement, and may even affect certain freedoms. Also, there are exceptions to almost every general rule. For these reasons you should always consult an attorney about your specific situation. The following information is presented for educational purposes only.
Before filing a Divorce Complaint or beginning any action involving custody of children, the petitioner must ensure Utah has jurisdiction to hear the case. For divorce, one of the parties must be living in Utah for at least three months immediately prior to filing. Also, for jurisdiction over anything but the marriage, both parties must have lived in Utah as a married couple or the respondent must have committed an act in Utah that led to the divorce. In other words, after three months Utah can grant a divorce, but cannot issue orders regarding alimony, property, debts, etc., unless both parties lived in Utah as a married couple or the respondent committed an act in Utah that led to the divorce.
Regarding children, Utah has jurisdiction over children if both parents live here, one parent lives here and the children have lived here for at least six months prior to filing, one parent lives here and the children have not lived outside of the state for more than six months, or both parents consent to Utah having jurisdiction. There are exceptions to these general rules in emergency situations.
Child custody is determined based on a best-interest analysis. In other words, what type of custody arrangement is in the best interest of the children. This can include sole custody to one parent, joint custody, or split custody, meaning one child lives with one parent and another child lives with the other parent.
There are two types of custody in Utah, legal and physical. Legal custody involves making life decisions for your children. For example, medical, religious, educational, and other types of major life decision will be made be the parent with legal custody. Utah law creates an automatic presumption that joint legal custody is in the best interest of the children. Meaning both parents will maintain a say in major life designs for the children. This requires the parents to communicate with on another and make decisions together. The presumption that joint legal custody is in the best interest of the children can be overcome if one parent has problems that prevent him or her from acting and making decisions on behalf of the children.
Physical custody simply refers to which parent the children will live with most.
Generally, parents will share joint legal custody and one parent will be awarded primary physical custody. There can, of course, be variations if the situation warrants it. For example, one parent can be awarded sole legal and physical custody, the parents can be awarded joint legal and joint physical custody, or the parents can be awarded split custody, meaning each parent has primary physical custody of at least one child.
The factors to determine which custody arrangement is in the best interest of the children are extensive. They include which parent is the primary caretaker of the children, which parent has a stronger bond with the children, the children’s preference, existing custody arrangements (both formal and informal), and the parent’s willingness and ability to act as custodial parent. Often, a judge will request the help of a professional custody evaluator before making a custody determination. This evaluator will come into both parents’ homes, interview them and the children, and write a report giving his or her professional opinion about which custody arrangement is best for the children.
Below are the basic rules and Utah statutory sections detailing the factors used in determining custody:
Rules of Judicial Administration 4-903: (5) The purpose of the custody evaluation will be to provide the court with information it can use to make decisions regarding custody and parenting time arrangements that are in the child's best interest. This is accomplished by assessing the prospective custodians' capacity to parent, the developmental, emotional, and physical needs of the child, and the fit between each prospective custodian and child. Unless otherwise specified in the order, evaluators must consider and respond to each of the following factors: (5)(A) the child's preference; (5)(B) the benefit of keeping siblings together; (5)(C) the relative strength of the child's bond with one or both of the prospective custodians; (5)(D) the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted; (5)(E) factors relating to the prospective custodians' character or status or their capacity or willingness to function as parents, including: (5)(E)(i) moral character and emotional stability; (5)(E)(ii) duration and depth of desire for custody; (5)(E)(iii) ability to provide personal rather than surrogate care; (5)(E)(iv) significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes; (5)(E)(v) reasons for having relinquished custody in the past; (5)(E)(vi) religious compatibility with the child; (5)(E)(vii) kinship, including in extraordinary circumstances stepparent status; (5)(E)(viii) financial condition; and (5)(E)(ix) evidence of abuse of the subject child, another child, or spouse; and (5)(F) any other factors deemed important by the evaluator, the parties, or the court. Utah Code Section 30-3-10: (a) In determining any form of custody, including a change in custody, the court shall consider the best interests of the child without preference for either the mother or father solely because of the biological sex of the parent and, among other factors the court finds relevant, the following: (i) the past conduct and demonstrated moral standards of each of the parties; (ii) which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent; (iii) the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child; and (iv) those factors outlined in Section 30-3-10.2. Utah Code Section 30-3-10.2: (2) In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court shall consider the following factors: (a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody; (b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest; (c) whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent; (d) whether both parents participated in raising the child before the divorce; (e) the geographical proximity of the homes of the parents; (f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody; (g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents; (h) the past and present ability of the parents to cooperate with each other and make decisions jointly; (i) any history of, or potential for, child abuse, spouse abuse, or kidnaping; and (j) any other factors the court finds relevant.
Parent-time, or visitation, is awarded to the parent not awarded primary physical custody of minor children. Utah law has a minimum parent-time schedule that can be awarded in most situations, with the hope the parents can work together on a more frequent schedule that works best for them and the children.
If the parents are living within 150 miles of each other, the minimum parent-time is every other weekend from Friday evening to Sunday evening, and every Wednesday evening for approximately three hours. The parents will also rotate major holidays and one-half of the summer break.
If the parents are living more than 150 miles from one another, the minimum parent-time includes one weekend each month and extended holidays such as Spring Break, Fall Break, Christmas, and one-half of the summer break.
If the children are under five years old, minimum parent-time is less-frequent to accommodate the children’s younger age. This ranges from just a few hours a week to one overnight a week depending on the ages involved.
There are numerous other arrangements that can be agreed to by the parents or can be ordered by a judge. This can include a more specific parent-time schedule to accommodate a specific work schedule, supervised or restricted visitation for a parent with an alcohol, drug, or violence problem, or a complete cessation of parent-time if it is determined such an order is in the best interests of the children.
In Utah, child support must be ordered in every divorce involving minor children. In fact, child support should be paid as soon as parents separate, even before an order is entered by the court. Of course, knowing how much should be paid is always the issue.
Generally, both parents’ incomes are factored into the support table that has been created by the Utah legislature, and the support figure is automatically generated from there. What should be included as “income” has also been defined by the legislature, and simply includes the equivalent of one, full-time job. Seasonal work or regular overtime pay can be included in certain situation. Also, if a parent has no income he or she will generally be imputed at least a full-time minimum wage for calculation purposes.
Other factors that affect the child support calculation include child support or alimony being paid to or from a former spouse, other children living in either parent’s home, and if there is a split or joint custody arrangement.
The custodial parent (or parent that has the children most) is usually entitled to receive child support, even if he or she makes more money than the noncustodial parent. Child support can be waived in some circumstances, but any such waiver is permanent and should only be considered in very special circumstances. Of course, a noncustodial parent not wanting to pay is not special.
A child support order generally lasts until the children are emancipated, meaning reach 18 years old or graduates from high school, whichever is later. If there is more than one child under the support order, the support figure should be adjusted as each child is emancipated. The new figure is simply calculated by using the same income figures listed in the most recent court order, but with one less child. If the parents’ incomes have changed since the last order, a Petition to Modify should be filed so the judge can adjust the income figures and child support order.
Spousal Support, Alimony
Spousal support, or alimony, is regularly awarded in Utah divorce cases if the circumstances warrant it. Generally, a marriage must be of long duration, meaning 10 years or more, and the recipient spouse must have a need for support and the payor spouse must have an ability to pay. Maintaining a current lifestyle and equalizing the divorcing spouses estates are also factors. On the other hand, fault for the divorce is no longer a consideration. The spousal support analysis should be purely based on economics. If support is awarded, it can be for the length of the marriage.
More specifically, before spousal support is ordered, the judge must view the recipient spouse’s reasonable and expected expenses and weigh those against his or her earning ability. If he or she can pay his or her own expenses, then there is no need for support. However, if there is a deficit, then the judge must view the same information for the payor spouse; that is his or her reasonable and expected expenses versus his or her earning ability. If there is a surplus, then the payor spouse should be ordered to pay spousal support. If the payor spouse’s monthly surplus is less than the recipient spouse’s deficit, the support figure may not be as much as the recipient spouse needs, but some support should be ordered nonetheless.
There are other forms of temporary spousal support that can be awarded in certain circumstances. For example, if one spouse supported the other through school or work advancements, the supporting spouse may be entitled to reimbursement. Also, one spouse being ordered to pay more than half of the parties’ marital debt can be considered a form of spousal support.
Spousal support generally has a specific duration, for example the same length as the marriage. However, it will generally automatically stop early if either spouse dies or if the recipient spouse remarries or cohabitats, meaning living with another person in a marriage-like relationship. Spousal support can also be adjusted if either spouses economic situation change in the future.
Property and Debt Division
In Utah, marital property is generally divided equally between divorcing spouses. Anything that was acquired by a married couple using the couple’s time or resources is marital property. Anything that was owned prior to marriage or acquired by one spouse through gift or inheritance is that spouse’s separate property and should remain separate. However, if separate property has been commingled with marital property, it may be considered marital property and divided accordingly.
Somewhat unique from other states, Utah law allows a judge to consider all property when dividing property between spouses, meaning he could award separate property of one to the other. However, this is generally only done in very special circumstances, such as one spouse specifically depleting the marital estate, concealing assets, or otherwise committing fraud.
Property that should be divided include: homes/real-estate, vehicles, cash, household furnishings, stocks/bonds, retirement accounts, commodities, business interests, tax losses, and anything else of value owned by the parties.
Unlike marital property, marital debt is divided equitably between divorcing spouses. This means debt can be divided equally, or it can be divided according to which spouse is in a better position to pay the debt. Also, as noted above, more debt can be awarded to one spouse as a form of spousal support or as a means of equalizing the estates of the divorcing spouses.
Other issues that should be resolved through a divorce action include: who claims the children for tax purposes, parent-time transportation costs, child healthcare, daycare, insurance, the need for any restraining orders, a parenting plan, and name change.