- Divorce Process
- Residency Requirements
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
Mediation (See Utah Code § 30-3-39)
If, after the filing of an answer to a complaint of divorce, there are any remaining contested issues, the parties must participate in a good faith in at least one session of mediation. This requirement does not preclude the entry of pretrial orders before mediation takes place.
The parties must use a mediator recognized by the court as qualified to mediate domestic disputes. Unless otherwise ordered by the court or the parties agree upon a different payment arrangement, the cost of mediation shall be divided equally between the parties. Either party may be excused from the requirement to mediate if they show the court, director of dispute resolution programs for the courts, or the mediator good cause.
Unlike a divorce that dissolves a valid marriage, an annulment is a legal decree that a marriage is void. In addition, an annulment proceeding can resolve some of the same issues that would be the subject of a divorce proceeding, such as child custody and support and alimony. Annulments are granted only in limited and special situations and cannot be granted merely because the marriage is of short duration or because the parties would prefer an annulment over a divorce.
A settlement agreement is a written contract between the parties that sets forth their rights, duties and obligations in their separation or divorce action by which the parties agree to dispose of the case without a trial. A settlement agreement may include such provisions for the division of their property, apportionment of responsibility for debt, spousal support, attorney’s fees, custody of their children and child support. Such agreements are encouraged since they usually resolve the disputes between the husband and wife more quickly, cheaply, and amicably than by trial.
If you seek to file a divorce in Utah, it is important to be aware of the residency requirements prior to filing for your divorce. In order to file for divorce you must have been a resident for at least 3 months. The complaint for divorce must also be filed in a county where either of the spouses resides. (See Utah Code § 30-3-1)
Grounds for Divorce
The grounds for seeking a divorce are (See Utah Code § 30-3-1) impotency of the respondent at the time of marriage; adultery committed by the respondent subsequent to marriage; willful desertion of the petitioner by the respondent for more than one year; willful neglect of the respondent to provide for the petitioner the common necessaries of life; habitual drunkenness of the respondent; conviction of the respondent for a felony; cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner; irreconcilable differences of the marriage; incurable insanity; or when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
A divorce based on irreconcilable differences of the marriage can mean a multitude of things, but ultimately it means that there is no reasonable hope that the marriage can continue. The court may approve or reject a marital settlement agreement of the spouses. Standard financial disclosure forms may be required to be filed.
To receive a court-approved divorce it is not necessary to show that either one of the parties was at fault in the decline of the marriage. All that is necessary to prove is a breakdown in the marital relationship to the extent that the objects and goals of marriage have been destroyed and that no reasonable possibility remains that the marriage can be saved.
The assignment of fault may make a difference in terms of a court’s final determination of the division of the marital estate and an alimony award, although the court does not “punish” a party for fault when dividing property. If a party’s fault caused the innocent party financial hardship, then that can affect how much of an award property or alimony a court makes to the innocent party.
Division of Property
Utah law provides for the “equitable” (which is essentially synonymous with “fair” and “impartial”) distribution of the marital property of the marriage at the time of the final divorce between the parties. “Marital Property” is not defined in the Utah Code for divorce purposes. “Separate property” is defined for probate purposes in the Utah Uniform Probate Code at §75-2-208. Property is separate property if:
(a) owned at the date of the most recent marriage of the decedent and the decedent’s surviving spouse;
(b) acquired by gift or disposition at death from a person other than the decedent or the decedent’s surviving spouse;
(c) acquired in exchange for or with the proceeds of other separate property;
(d) designated as separate property by written waiver under Section 75-2-213; or
(e) acquired as a recovery for personal injury but only to the extent attributable to expenses paid or otherwise satisfied from separate property.
Utah case law defines marital property extensively. See Elman v. Elman 45 P.3d 176 (Utah Ct. App. 2002): All assets acquired by the parties during marriage are to be considered by the trial court when making an equitable distribution, unless the law specifically prevents the court from considering a particular asset. Dunn v. Dunn (802 P.2d 1314, 1317-18 (Utah Ct. App. 1990)) broadly defines marital property as ordinarily all property acquired during marriage and it encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived.
The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property.” Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct. App. 1990). Such separate property can, however, become part of the marital estate if (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it, or (2) the property has been consumed or its identity lost through commingling or exchanges or where the acquiring spouse has made a gift of an interest therein to the other spouse. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (citation omitted). Child v. Child, 194 P.3d 205, 210 (Utah App., 2008). Even when neither of these elements is met to bring separate property into the marital estate, under an equitable property division, an interest in a spouse’s separate property may still be awarded to the spouse “in lieu of alimony or in other extraordinary situations where equity so demands.” (Id. citing Burt V. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990).
In making its equitable distribution awards the courts are not only authorized to make monetary awards to one of the parties, but may also divide or order sold or transfer jointly owned marital property to one of the parties., but may also divide or order sold or transfer jointly owned marital property to one of the parties. The court in making its equitable distribution awards is not required to divide the marital property on an equal basis.
(See Utah Code § 30-3-5(8 – 10)
The court shall consider at least the following factors in determining alimony:
- the financial condition and needs of the recipient spouse;
- the recipient’s earning capacity or ability to produce income;
- the ability of the payor spouse to provide support;
- the length of the marriage;
- whether the recipient spouse has custody of minor children requiring support;
- whether the recipient spouse worked in a business owned or operated by the payor spouse; and
- whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage.
The court may consider the fault of the parties in determining alimony. As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony. However, the court must consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no children have been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage. The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.
When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony. In determining alimony when a marriage of short duration dissolves, and no children have been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of marriage.
Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time. Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and his rights are determined.
Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is living with another person and is in a sexual relationship.
Spouse support is not awarded to punish a guilty spouse but rather is to lessen the financial impact of divorce on the other spouse.
(See Utah Code §§ 30-3-10, -10.1, -10.2, -10.3, -10.4, -10.7, -10.8, -10.9, -10.10)
This is the most crucial issue in most divorces. In determining the custody of minor (under eighteen) children, the court is guided by one standard – the best interest of the child. Custody will not be given to a parent as a reward or as punishment to the guilty parent, but rather to the one most adaptable to the task of caring for the child and able to control and direct the child.
Other factors considered may include the age of the parent and child, the physical and mental condition of the parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live and the child’s wishes if the child is of sufficient age, intelligence and maturity to make such a decision. Custody may be changed if there is a material and substantial change in circumstances necessitating or warranting a change in the custody award. Child custody is not easily modified, and the material substantial change in circumstances that causes a change in custody are not easily established.
Visitation (See Utah Code §§ 30-3-32, 30-3-33, 30-3-34, 30-3-35, 30-3-35.5, 30-3-36, and 30-3-37)
The court will normally set visitation rights (also called “parent-time”) if the parents cannot voluntarily agree upon a visitation schedule of their own.
Normally the party not having custody of the child(ren) will be required to contribute financially to the support of the minor child. This could be an obligation of the mother as well as the father. The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state Child Support Guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change if there is a material and substantial change in a parent’s income upward or downward, or if material and substantial change occurs in the circumstances of the child.