Divorce

A marriage may only be terminated through the Courts.  There are different ways to end a marriage either temporarily or permanently, such as a legal separation, an annulment or a divorce.  Although there are some minor differences, the process for ending a marriage is very similar. 

Some of the most frequently asked questions about divorce are:

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There is no way to prevent a divorce in Utah if one spouse wants it even if the other doesn’t.

A legal separation, called separate maintenance in Utah, does not end your marriage.  You remain legally married, but intend to live separately from each other.  Since you are no longer living together, you may ask the court to enter an order establishing custody, visitation, child support, property division, debt payment and other issues.

An annulment is an order from the court not only ending the marriage but which says that the marriage never happened.  Like a legal separation, the judge may enter an order as to custody, visitation, child support, property division, debt payment and other issues. An annulment may be the most difficult to prove unless the marriage is clearly void under Utah law (such as where your spouse was already married to someone else when you married). In most cases, you must prove that your spouse intentionally withheld information or told you a lie to induce you to marry, and that had you known the truth, you would never have married.

A divorce simply terminates the marriage. Again, the court may enter an order as to custody, visitation, child support, property division, pensions, alimony and other issues.

No, you do not need an attorney to end your marriage.  However, unless both you and your spouse may agree on all the provisions of the divorce, we would recommend that you have one.  It is a good idea to have someone who is familiar with the law and the court system to help you.  You may be able to get help free of charge from the Legal Aid Society of Salt Lake if you are in Salt Lake County, or from Utah Legal Services in all other areas of the state.  You should contact them to see if they may help. If they can't help you, you may still hire an attorney to help you.

No. There is always a conflict of interest in a divorce and one lawyer cannot represent both sides. But the Respondent could decide not to fight, in which case he/she would not need an attorney.

Yes.  However, it is best if you notify the other person, especially if there are children involved.  While the Courts will usually not prevent you from moving, they will take a move into consideration when determining where the children should reside, etc.  There can be consequences to the person moving children in that transportation costs will go up and the one moving usually has to pay them.

The answer to this question depends upon the circumstances.  Some ideas follow: 

Uncontested divorce with or without children.  Utah law imposes a 90-day waiting period after filing for a divorce before it may be granted so even if you and your spouse may agree on all the issues, it would take a minimum of 90 days.  However, you may try to waive the waiting period. Divorcing parents are required to take two (2) classes:  the Divorce Orientation class and the Divorce Education for Parents Class. 

Contested divorce.  If you and your spouse cannot agree on the terms of the divorce, then it could take months or even years.

The only advantage to filing first is that if you may be able to affect where the case is within the state if you and your spouse live in different areas of the state.  Otherwise, there generally will not be any advantage to being the first to file.

Utah has a residency requirement for filing for divorce.  You or your spouse will have to reside in the county that you want to file in for at least three months before you may file.  In addition, if you have children, you may need to reside in the state for at least six (6) months before filing.

No.  You will only have to go to Court if you can not agree on the terms.  In fact, the vast majority of cases are resolved without going to Court.

Mediation is a process that may help you and your spouse talk about the issues in the divorce and come to an agreement.  If you do not agree on your own, Utah law requires you to go through the mediation process before you may go to trial.  This requirement may be waived, however, for good cause such as having had domestic violence in the relationship.

Any relationship with someone else before you are divorced may hurt your case. Also, this situation may anger your spouse and make settlement more difficult. If you have children, this is especially true, and you should get some professional advice about how much your children should know about your adult relationships.

Yes.  The Utah Courts have put the forms on their Online Court Assistance Program (OCAP) (www.utcourts.gov/ocap).  After having you input all the needed information, this program will personalize and prepare all the paperwork needed to file a divorce.

You may ask the Court to have a hearing to establish temporary orders that will last while the divorce is pending.  You may ask for a hearing at the same time that you file.  However, they are not immediate.  The court will not enter temporary orders without a hearing.  However, they will usually try and schedule a hearing as soon as they may.  This may be especially helpful if you have children so they may be taken care of with child support orders, etc.

After filling out and filing the paperwork, your spouse must be “served” meaning s/he must get a copy of the paperwork and any notice of hearing for temporary orders signed so they are aware of what you are asking.  “Service” is generally done by the sheriff’s and/or a constable.  Your spouse will have 20 days to respond if they reside within the state of Utah.  If they live outside of Utah, they will have 30 days to respond once they are served.

Yes.  Utah does require a reason to get divorced.  The easiest and usually most appropriate ground for divorce is irreconcilable differences.  However, there are other grounds such as impotency at the time of the marriage; adultery; abandonment for a period in excess of one year; willful failure to provide the common necessities of life; habitual drunkenness; conviction of a felony offense; cruel treatment (to the extent of causing bodily injury or great mental distress and suffering); the parties living separately under a decree of separate maintenance for three consecutive years without cohabitation; and incurable insanity.

There is no one way that property, debts and other issues are divided.  You may do it anyway that makes sense in your situation.  However, here are some general guidelines:

Debt.  The general rule is that if there debt associated with property, the person who gets to keep the property will also have to pay the debt.  However, where the person getting the property has no money or is disabled and the other party makes lots of money, then the person with money might be responsible for the debt.

In addition, a spouse is generally not responsible for the other’s debt unless they have signed a loan agreeing to pay for your spouse’s debt or if the debt was for a family purpose (i.e., kids’ clothes, kitchen appliances, or anything that benefits the whole family).

Personal Property.  Personal property is property that is generally considered to be moveable.  This includes items like cars, furniture, dishes, etc.  The general rule for property division is to divide it equally allowing each person to be able to go forward and set up a separate home.  However, as with debts, a person generally gets to keep personal property he or she brought into the marriage, or property that was a gift to one person, or that was inherited by one person, unless that property has been combined with other marital property or is used in a way that it takes on the legal status of marital property. 

In dividing personal property, it is best to sit down with your spouse and agree on who gets what.  Each should then take the property as agreed, remembering to change titles and names on accounts as necessary. It may be helpful to include the Vehicle Identification Numbers and/or any existing serial numbers for any property in your divorce decree.  However, remember that it is a public document so consider any confidentiality/identity issues that may exist.

If you cannot decide on your own how to divide the personal property, the Judge will commonly have one party make two lists and allow the other party to choose which list of items she wants.

Real property.  Real property is land and anything permanently attached to land, such as a house or buildings.  Generally, you will get to keep any real property you brought it into the marriage, it was a gift, or it was inherited so long as you have not commingled it with marital property or otherwise changed the nature of your real property so that it takes on the legal status of marital property.  If the home was purchased during the marriage, it will generally be considered marital property even if only one name is on the deed.

Often the real property is sold and the money from the sale is divided equally between the parties.  However, one person may “buy” out the other by giving them what they would have gotten had the property been sold.  The person giving up the house should sign a Quit Claim Deed to the other person once the divorce is final. It may be helpful to include a property description in the decree itself so that you may record the order at the County Recorder’s Office or otherwise use the order to prove change of title to lenders, purchasers, title insurance companies and the like.

If you may not agree on who should get the house, the court will do its best to enter an equitable order. The court may award the home to one party and award to the other party other marital assets of equal value. The court could order the home sold and the equity split, if you have no children. If you have kids, the home might go to the party with custody of the children, at least until the youngest child turns 18, or graduates from high school in the normal course, or the custodial parent remarries, cohabits with someone else or is no longer in the home. At that time the house will be sold and the party who did not reside in the home will get half of the equity as of the time of the divorce; or one party, usually the person who has been in the home, may buy out the other party, usually by paying the cost of half the equity calculated at the time of the divorce. However, remember to do the calculation during the divorce process and include in the final order the amount of equity that will be owing upon the occurrence of one of the events named above.

Alimony.  Alimony generally will not be given unless there has been a long term marriage meaning at least ten (10) years.  In addition, alimony will generally be awarded for the same time as the length of the marriage (i.e., if the marriage was 10 years long, then alimony would only be awarded for 10 years).  However, there are some exceptions to this rule.

Retirement/Pension Plans.  If both parties have retirement plans, each will generally be awarded their own retirement.  However, each spouse is generally entitled to half of any retirement benefits that were earned during the marriage.  If you are not the contributor to the plan and get some of the benefits, you must get a Qualified Domestic Relations Order or QDRO.  Until a QDRO is signed and approved by the pension/retirement plan, it will not be split. In fact, if you do not successfully complete the QDRO, your share of the pension may not be available when you need it for your retirement, and indeed, may be lost entirely.

Yes, you may change your name as part of your divorce. The party wishing to change his or her name needs to include a paragraph indicating that their name is being changed. We recommend that you include the full new name that will be used after the divorce.

Yes.  If you feel that the other party to a divorce is harassing you, you may ask the court to enter a restraining order and specify what she wants the other party to be restrained from doing. A typical order might state:  “John Doe should be restrained from bothering, harassing, annoying, threatening or harming Jane Doe at any time or any place.”  Note:  Unlike the protective order discussed above, violation of a restraining order is not a crime. 

If you disagree with the Judge’s order on one or more issues in your divorce, you have the right to appeal. This means having a higher court review your case. You must file your appeal within 30 days of the final entry of the decree of divorce. Appealing a case is a complex and technical process and you should consider hiring an attorney to help you.

Once the court enters a divorce decree, it may be modified only if the parties may show that there has been a substantial and material change in circumstances since the divorce was entered. For example this might mean a large change in one party’s income, or the fact that one party moves from the state. Once the court finds that there is a substantial and material change in circumstances, then it needs to determine what the order should be. When reviewing a custody or visitation order, the court will always base its decision on the best interest of the children. In the event of a substantial change, a petition is filed with the court asking that the decree be modified.

The information in this site is not intended as legal advice.
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