Facing a Divorce or Custody Case? Things You Need to Know
1. Get Help From an Experienced Attorney
Make sure your interests are protected and that you are informed regarding your rights.
Divorce does not have to be messy or nasty, but there does need to be a fair dissolution. If you are clear that you are getting divorced, one of the first steps is to start looking for representation.
This can be a confusing time where most feel lost and many clients don’t know what to do first. While there is no set formula to get the ball rolling, meeting with an attorney who can help you understand your rights is definitely going to be your biggest initial step forward.
There are so many pieces to the divorce process that it is impossible to know everything at the outset. Moving towards a divorce should always involve talking it over with an attorney.
You don’t have to do it alone.
2. Consider the Cost of Not Getting Help
What will it cost you to not to hire an attorney? Divorce is an event that will impact you for years.
Even if you do not foresee a high conflict resolution, there are a lot of important, life changing decisions that must be made. You need a personal advocate to help navigate through this process, one who is fully focused on your needs and concerns and has the experience and foresight to consider situations that may not have even crossed your mind.
Utah requires that every couple facing divorce attempt mediation before going to trial and a lot of people think they don’t need to be represented initially. A meditator’s goal is to get a settlement. They represent neither side and will take advantage of the weakest link in order to get a quick resolution. They do not necessarily have your best interest in mind and when kids and money are involved, it is imperative that you have your own advocate in your own corner. Otherwise, you risk being governed by a law that dictates the rest of your life without knowing if it can stand the test of time, is ultimately fair or in your best interest.
You would be surprised how many of our clients come to us looking for help in altering divorce decrees that were mediated without representation and who now realize have serious oversights and mistakes. It is often-times much more expensive to go back and fix a decree than it would have been to make sure it was done right the first time.
3. No One Size Fits All
How do you tell your family? What about the kids? Also,what kind of schedule are you going to have? What does parenting look like going forward?
As you might imagine, the answers to these questions are slightly different for every situation. The way you break it to your family will depend on a number of factors, such as:
- The age of your children. The conversation you have with college-aged kids will obviously be different then the one you have with a five year old. Keep it age appropriate and let them know it wasn’t at all their fault.
- Children are smart and know more than we think they do. You may think you have done your best to hide your marital problems from your children might have seen you and your spouse argue. You can acknowledge this and explain why this decision is best for the family. Avoid placing blame upon anyone.
It is best if you and your spouse are there to break the news together. This avoids your family hearing just one side of the story which can add to their confusion.
The State of Utah requires divorcing parents to take a mandatory parenting course designed to educate them their children’s needs during and after a divorce.
You should get legal advice so you are fully informed about these issues.
4. Utah Is a No-Fault State
Have you had an affair or have you been cheated on? What if your spouse does not want the divorce?
In Utah, it does not matter. Utah is a no-fault state meaning only one of you needs to file for divorce – and it does not matter who files first.
There is no need to prove who is ‘to blame.’ However, if there is serious transgression by one spouse, this can affect court decisions regarding alimony.
To file for a no-fault divorce, at least one of you must have been resident in Utah for a minimum of three months. You will be subject to Utah’s 30-day waiting period between your initial filing and the granting of the final divorce decree.
This time period is meant to be a ‘cooling-off’ period so that you and your spouse can reach a settlement without needing to go to trial. If it does go to trial, the judge will make a decision which is fair for everyone involved.
5. Child Custody
You should try to resolve child custody arrangements yourselves before going to court.
Utah law sets forth considerations for determining custody.
There are two elements of custody to consider:
- Do you want sole legal custody or joint-legal custody?
- Do you want sole physical custody or joint-physical custody?
In Utah, there is a presumption of both parties being awarded legal custody so joint-legal custody is common. Joint legal custody means that both parties have the right to give imput on decision-making and receive information regarding their children on things such as healthcare, education, schools, religion, child’s actibities etc.
Any request or award of joint custody requires the inclusion of a parenting plan, because it outlines parameters for legal decision making for the children and should include conflict resolution process if the parties are unable to come to an agreement. See UCA 81-9-203 https://le.utah.gov/xcode/Title81/Chapter9/81-9-S203.html?v=C81-9-S203_2024090120240501
The Utah code outlines the provisions to which the Court should consider joint custody arrangements. See https://le.utah.gov/xcode/Title81/Chapter9/81-9-S205.html?v=C81-9-S205_2024090120240501
Physical custody, refers to who and where the children will spend their time. This element of custody tends to be contentious, which is why is important to have an attorney well educated and experienced on the impacts these types of arrangeents with have on you and your children.
There are several types of Physical Custody:
- Sole custody– refers a one parent having the child the majority of time. The non-custodial parent has parent-time with the children, every other weekend (Friday -Sunday evening) and a mid week visit of 3 hours on a designated day during the week. See UCA 81-9-302 https://le.utah.gov/xcode/Title81/Chapter9/81-9-S302.html
- Joint custody 60/40 arrangement- is hybrid of sole and 50/50 joint custody. The non-custodial parent’s parent’s schedule for this arrangement is usually every other weekend (Friday -Monday) and the mid-week visit is an overnight visit. See UCA 81-9-303 https://le.utah.gov/xcode/Title81/Chapter9/81-9-S303.html
- Joint custody -Equal Parent-time (50/50 schedule). The weekly parent-time schedule for this arrangement can be a variety of different options depending upon the parents’ and children’s needs. See UCA 81-9-304 https://le.utah.gov/xcode/Title81/Chapter9/81-9-S304.html However, the two most popular schedules are:
- Each parent having 2 overnight days during the week (MT or WTh) and then alternating weekends Friday -Monday morning; OR
- Week on/ Week Off (a full week with each parent on alternate weeks).
- Split custody arrangement. This is rare, but may occur when there are multiple children and they have different physical custody and parent-time schedules. For example: there are three kids, A, B & C. The parties decide for any number of reasons, that Child A lives primarily with Mom (sole custody) and Children B & C live primarily with Dad (60/40 joint custody). Often times parents will have all the children on the same weekend schedule, with a differing weekday schedule.
Child support is calculated based upon the type of physical custody a parent is awarded.
The guiding principle in determining child custody disputes is what is in the “best interests of the child”.
6. Alimony
How is alimony decided?
Under Utah law, alimony may be awarded to either spouse. It can be granted on a temporary or a long-term basis. Utah law provides that alimony can not be awarded for a term longer than the actual marriage (but often times the term is negotiated to be a shorter period of time) and should terminate upon the receiving party either: getting married or cohabiting with another person (in an intimate relationship) or upon the death of that person.
During the discovery phase, each party will provide the other party with all financial information (the income, personal property, debts, assets).
Alimony is determined by taking into account the requesting spouse’s financial needs, balanced against the alimony payer’s ability to pay. This is based on the lifestyle the requesting spouse enjoyed during the marriage.
7. Child Support
How is child support awarded?
Your divorce decree will set out rules that you and your ex-spouse will need to abide for years to come. It is going to govern how you look after your children and your finances.
In Utah, child support is calculated based on the number of overnight stays the child has with each parent and each parent’s gross monthly income.
Within the first three years, if there is a significant and unforeseeable change in circumstances (such as losing a job) which significantly impacts a party’s income, a party may file to have the Court recalculate income. Three years after the child support has been established, a parent may request the Court recaculate the child support by filing a Motion with the Court.
There are no higher stakes than your kids and your finances. Get professional legal advice to ensure you are protected.
8. Asset Division – What’s Yours?
How is property divided?
During the marriage, parties acquired assets, property & debts. All of these things acquired during the marriage are generally referred to as the “Marital Estate.”
The marital estate should be divided in a “fair and equitable” manner. Does this mean that everything is divided exactly 50/50 ? Theoretically, yes! However, it is never really this simple. The values of assets/property often differ between parties. The date of separation could be considered by the Court as the date of value, rather than the Divorce date. If an asset has a debt, and both parties are jointly obligated, the party getting the asset will need to remove the other party from the debt. As in so many aspects of domestic law, there are many things to consider when trying to negotiate a final settlement or going to trial.
The exceptions to assets/property being included in a “marital estate” would be if a person had “separate property” such as:
- If a party received an inheritance or gift from someone, intended exclusively for that specific person; OR
- If a party had assets/property that a party owned prior to the marriage.
However, in order for the above to remain or be considered separate property, a party making this claim would need to proof and ensure that the property remained separate (titled solely in that party’s name or bank account to which no marital money or assets have been used or co-mingled to maintain or included during the marriage). Often people with premarital assets or inheritances have a “pre-nuptial agreement” drafted and signed by both parties prior to the marriage, which detail these assets to protect a party in the event of a divorce.
Clearly these issues can be complex and it is important to consult with an experienced Utah legal professional to discuss your rights and options.
9. How you lived or had arrangements with the other party during a marriage or your relationship may determine what a Court will Order.
How you’ve lived during the course of the marriage (or relationship) sets a precedent.
For example, if the father and mother have been equally involved with the children, there is going to be a presumption of joint custody.
If there is conflict after filing a divorce petition, your attorney will file a motion for temporary orders on your behalf, and a hearing will decide the temporary living situation.
If the order places the children on a schedule where they are primarily under your care, a judge making the final decision will turn to that precedent.
The longer the order is in effect and the better the kids are doing, the stronger the precedent. Establish a precedent that will help you later. If you want joint-custody of your kids, then show up. Be involved.
10. Don’t let the turmoil distract you from what is important
Think of the future.
Divorce is an emotionally and financially stressful time. Don’t get swept away by the here and now – think of the future. Avoid spending your energy on winning little arguments. Focus on making the best decisions for your finances and your children. If you find yourself getting overwhelmed, try writing down your feelings or speaking to a trusted friend or counselor that will support you, rather than trying to tell you what you need to do.
Remember that once you have come to a final agreement and/or the Court enters a final determination in your case, there are very few circumstances in which you can change these terms in the future. So it is important that you have good legal advice to ensure you have protected your legal rights and obligations, both now and in the future.
BONUS – Schedule a Consultation
We can help you know where to start and guide you through every step of the process. With over 35 years’ combined experience, we have seen it all. Your first step is to call us to set up an appointment.
During the initial consultation, we will get a feel for the situation:
Do you have children? Do you want custody? What do you want that custodial arrangement to look like?
Do you own a home? Do you want to stay in your house? What is the next step after the divorce is filed?
First step: call Schmidt Law Firm.
During your initial consultation, you will have the opportunity to discuss:
- Grounds for divorce
- Distribution of marital assets (home, cars, financial and retirement accounts)
- Child custody and visitation Child support and alimony Relocation after divorce
- The general divorce process and timeline
- The cost of hiring our firm to represent you
Should we both decide working together is a good fit, there will be other documentation requested (any documents you have been served with, your marriage certificate, a copy of your prenuptial or postnuptial agreement).