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Domestic Law Handbook

last modified 2009-08-10 13:30

This handbook is divided into the several areas within "Legal Problems". It may be easier to navigate there. Click here to go to "Legal Problems".

This handbook addresses the following topics in Question and Answer format:

Domestic Violence Protective Orders Stalking Injunctions	Family Law Guardianship & Conservatorship Adoption Marriage Annulment Divorce Parentage/Custody

Domestic Violence

Protective Orders

Some of the most frequently asked questions about protective orders are:

Who may file a protective order? In order to file a protective order for yourself, you must meet the following requirements:

Be emancipated or at least 16 years old,
Be a victim of abuse or domestic violence (which includes stalking),
Have one or more of the following relationships with the abuser:

Lives or has lived in the same residence,
Have a child or unborn child in common,
Be related by blood or marriage.

Any interested party may also file a protective order on behalf of a minor child who has either been abused or who is in danger of immediate abuse.

Where do I file a protective order? If you are filing a protective order for yourself, you should file it in the District Court of the county where you or the other party resides or in the county where the abuse occurred. If you are filing a protective order on behalf of a minor child, you must file it in the Juvenile Court generally of the county where the child resides or where the abuse occurred. To find the District court for your area, click here.

What about my children? Are they protected? Your children may be protected in one of two ways. If you are a victim of abuse and are filing a protective order for yourself, you may include protection for your children at the same time. If you have not been a victim of abuse yourself, you or any other interested party may file a protective order on behalf of your children. Note: If you know of or suspect abuse to any child (even if they are not your own), you MUST report the abuse to the Division of Child and Family Services (DCFS). In addition, a child who has been abused or who is suspected of having been abused, may be appointed an attorney (called a guardian ad litem). This attorney’s job is to represent the child, not you or the alleged abuser.

What is abuse and domestic violence? Domestic violence includes abuse and, in general, is physically harming or threatening to harm another person. It also includes placing another in fear of physical harm. Domestic violence may include one or more of the following and other similar actions:

Physical or sexual assault, such as hitting, punching, pushing, shoving, choking, kicking, threatening with a weapon, forcible rape or sodomy,
Intimidation to the point of placing you in fear,
Electronic communication harassment,
Holding you against your will, and
Stalking.

Do you need more than one incident of domestic violence? No. Unlike the civil stalking injunction which does require more than one incident, a protective order may be filed after only one incident of domestic violence (unless the only domestic violence is stalking, in which case you would need to have two or more incidents).

How long does a protective order last? The answer depends on whether you have filed an adult protective order or a child protective order. The protective portions of the adult protective order will last until further order of the Court but the one who filed may ask that it be dismissed at any time and the one who it is against may ask for a review after two (2) years. The non-protective portions of a protective order (custody, visitation, etc.) may only last for up to 150 days. All provisions of a child protective order only last 150 days unless otherwise ordered by the Court.

Is a protective order valid statewide? In short, yes. A protective order issued in the state of Utah is valid and enforceable statewide. In addition, it should be enforceable in all other states as well.

If I got an order of protection from another state, is it valid in Utah? Yes. Local police departments should enforce an order of protection from another state. However, if you plan on staying in Utah, you should go through the process of getting it recognized by Utah.

May I get help filling out the paperwork? Yes. Utah law requires that court clerks assist in filling out the paperwork. However, there are many other resources as well. In Salt Lake County, the Legal Aid Society of Salt Lake will assist you fill out all the paperwork at the courthouse. Elsewhere in the state, victim advocates may assist with the paperwork, although you will have to fill them out and sign them yourselves. Victim advocates are generally located at the local police department or local shelter. To find an advocate or a shelter, please call the DV Link Line at 1-800–897-LINK (5465) or visit online at www.udvc.org. Finally, in addition, 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 protective order.

What happens after I fill out & file the paperwork? After filling out and filing the paperwork, the judge will decide whether to sign a temporary order to protect you from further abuse or domestic violence. In addition, the person you are filing against must be “served” meaning s/he must get a copy of the paperwork and any temporary orders signed so they are aware of what you are asking. “Service” is generally done by the sheriff’s and/or a constable.

Do I have to go to a hearing? Yes. Utah law requires that a hearing being scheduled within twenty (20) days. You must appear at that hearing to explain to the judge why a protective order is needed. If you do not show up at the hearing, the judge will likely dismiss your case.

What will happen at the hearing? At the hearing, you will get a chance to tell the judge why you think a protective order is needed. You should be prepared with anything you have to support your side, such as police reports, witnesses, etc. After you are done, the other side will get an opportunity to ask you questions about what you said. Then, the other side will get a chance to tell the judge why a protective order is not appropriate and present any evidence they have to support their reasons. You will then get to ask them questions about what they said. Then the judge will make a determination if a protective order is needed and either enter the order or dismiss the case.

Do I need an attorney at the hearing? No. You are not required to have an attorney at the hearing. However, we would recommend that you do. It is a good idea to have someone who is familiar with the law and the court system to help you at the hearing. 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.

How May I Stay Safe? If you do not feel safe, you should be prepared should you need to leave quickly. Some suggestions follow:

Pack a suitcase with toiletries, extra house and car keys, a change of clothing for you and your children. Store all this with a friend or neighbor.
Have the following items in an easy to locate place: medicine, identification, money, checkbook and savings book, birth certificates, Social Security numbers, address book, protective order and other legal papers.
Know exactly where you will be going: family, friend, police or shelter.

If you don’t have time to gather these items and you are going to be hurt, call 911and get out. Shelters have emergency provisions.

For more detailed information, you may contact a victim advocate who may discuss ways for you to keep yourself safe. In addition, you may get information from the Utah Domestic Violence Council. You may contact them at 801-521-5544 or online at www.udvc.org

Stalking Injunctions

Some of the most frequently asked questions about civil stalking injunctions are:

Who may file a civil stalking injunction? Anyone who has been a victim of at least two (2) incidents of stalking and has experienced fear or emotional distress from the stalking may file for a civil stalking injunction. However, if you are a minor child (younger than 18), you will have to file with a parent or guardian. In addition, a parent or guardian may file a civil stalking injunction on behalf of a minor child even if the minor child does not want to file.
Where do I file for a civil stalking injunction? Stalking injunctions are filed in the District court, generally in the county where you live or where the stalking occurred. To find the District court near you, click here.
What is stalking? In general, stalking is actual or implied repeated visual or physical proximity or repeated verbal or written threats. More specifically, stalking is any intentional conduct which would cause a reasonable person to:

Have or fear bodily harm to either him/herself or his/her immediate family; or
Suffer emotional distress him/herself or cause his/her immediate family to suffer emotional distress.

How long does a civil stalking injunction last? A civil stalking injunction may last up to three (3) years but the person who filed may ask that it be dismissed at any time.
Is a civil stalking injunction valid statewide? In short, yes. A civil stalking injunction issued in the state of Utah is valid and enforceable statewide. In addition, it may be enforceable in other states.
If I got a stalking injunction from another state, is it valid in Utah? Yes. Local police departments should enforce an order from another state. However, if you plan on staying in Utah, you should go through the process of getting it recognized by Utah.
May I get help preparing the forms for a civil stalking injunction? 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 civil stalking injunction.
What happens after I fill out & file the paperwork? After filling out and filing the paperwork, the judge will decide whether to sign a temporary order to protect you from further stalking. In addition, the person you are filing against must be “served” meaning s/he must get a copy of the paperwork and any temporary orders signed so they are aware of what you are asking. “Service” is generally done by the sheriff’s and/or a constable.
Do I have to go to a hearing? After being served with the paperwork, the other side may ask for a hearing within ten (10) days. If a hearing is requested, you will have to go to the Court to explain why a stalking injunction is needed.
What will happen at the hearing? At the hearing, you will get a chance to tell the judge why you think a stalking injunction is needed. You should be prepared with anything you have to support your side, such as police reports, witnesses, etc. After you are done, the other side will get an opportunity to ask you questions about what you said. Then, the other side will get a chance to tell the judge why a stalking injunction is not appropriate and present any evidence they have to support their reasons. You will then get to ask them questions about what they said. Then the judge will make a determination if a stalking injunction is needed and either enter the order or dismiss the case.
Do I need an attorney at the hearing? No. You are not required to have an attorney at the hearing. However, we recommend that you do. It is a good idea to have someone who is familiar with the law and the court system to help you at the hearing. 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.

Family Law

Guardianship and Conservatorship

Some of the most frequently asked questions about guardianships and conservatorships are:

What is a Guardianship? Like a power of attorney, a guardianship allows someone else to act as if they were you. Unlike a power of attorney, a guardianship cannot be created voluntarily. It is granted by a judge. A guardianship is similar to a parent/child relationship, except that a guardian is not held legally responsible for the acts of the other person and guardians do not have to use their own money to provide for the other. They are generally given when someone may no longer take care of themselves or a minor under their control. Guardianships may be granted to take care of adults and/or children.
What is a Conservatorship? Conservatorships are similar to guardianships but they only give a person the power to manage someone else's property and finances. A conservator may not make personal decisions for someone such as where they will live. Guardians have the authority to make even that decision.

How can I obtain a Guardianship or conversatorship? As mentioned earlier, guardianships and conservatorships may only be created by filing an action with the Court. By law, if the guardianship is for an adult, the Court will appoint an attorney to represent that person. In the case of a guardianship of a child, if there is a question on what is in the child’s best interests, the court may also appoint a lawyer to represent the child in the court action. Once the court establishes a guardianship, the guardian must give notice of acceptance of the new relationship. The forms necessary to file a guardianship on behalf of a child are available on the Online Court Assistance Program (OCAP) at www.utcourts.gov/ocap.
How Do I Terminate a Guardianship/Conservatorship? If a guardianship/conservatorship is for a minor child, the guardianship/conservatorship automatically ends when the minor child turns 18. A guardianship and/or conservatorship is also terminated when either party dies. In addition, a guardianship and/or conservatorship may be terminated using the same process that it took to create it. In other words, a person may file paperwork with the court that created the relationship asking the court to end the relationship. This may be done by the person who is guardian or by the person who has a guardian. The court will generally not require someone to act as guardian, but if a guardianship is still needed, the court will not end the guardianship until it is able to find a new guardian.

Adoption

Some of the most frequently asked questions about adoption are:

May I adopt? In order to adopt, you must be an adult who is either married (and has permission from your spouse) or single (and not cohabiting with another person). In addition, the person you are adopting must be at least ten years younger than you. When considering if you are able to adopt a child, the best interests of the child will be considered by the court. In order to determine the best interests of the child, the court may order the Department of Child and Family Services (DCFS) to investigate and make a report to the court.
Where do I file the paperwork? A petition for adoption is generally filed in district court. However, if there is an action in juvenile court terminating a parent’s rights, the petition may be filed there.
Who needs to be notified? Any person or institution whose consent is required (see below) must be given at least thirty (30) days notice. Although not complete, some examples of people who might need to be notified are:

anyone who has filed a paternity action for the child and filed a notice of that action with the Department of Vital Statistics;
any legally appointed guardian or custodian;
your spouse, if applicable;
a parent listed on the birth certificate; and
a person who lives with the child and acts like the child’s parent.

Does anyone have to give consent? Yes. Except as noted below, you will generally have to get written consent from at least one person. A person may not give consent until the child is at least 24 hours old. Consent may be given in front of a judge or given to an adoption agency. Once signed, consent cannot be revoked. As you might expect, the list of who may have to consent is very similar to the list of those you must notify and include the following:

the person being adopted if he or she is over 12 and mentally competent;
both parents of a minor child if born within a marriage;
the mother of a minor child if born outside of a marriage, and the father if:

a court has ruled that he is the father,
he has filed a voluntary declaration of paternity prior to the mother signing the consent of adoption,
he has developed a strong relationship with the child and has taken some responsibility and/or shown some commitment for the child, or
he has lived with the child for 6 months within the child’s first year and acted as though the child was his own.

the adoption agency.

When is consent not needed? Generally, consent will not be required if no other relationship with the person being adopted exists. Some examples are:

a person’s parental rights have been terminated
an unmarried father has not established his right to consent (as described above), or
a parent is deceased.

If consent from the biological father cannot be obtained because he cannot be located, you must file a certificate from the Department of Health stating that a diligent search for the filing of paternity was performed and that no filing could be found.

What if someone doesn’t agree to the adoption? If someone does not agree with the adoption, they have a right to fight it. In order to do so, they must inform the Court either by appearing at the hearing or by filing a written statement of their concerns within 30 days of being served notice of the adoption.
How long does it take? The court will not finalize an adoption until the person has lived in the home of the adoptive parent for a period of time. If the adoptive parent is a step-parent, the time period is one (1) year. Otherwise, the time period is six (6) months.
Are adoptions confidential? Adoption records are sealed by the court and cannot be inspected or copied without permission of the court. Limited access to health information may be obtained. However, Utah does have an adoption registry that contains identifying information of an adopted child and their natural parent. A child or parent must voluntarily place their information in the registry. Brothers and sisters of adopted children who voluntarily register may receive information about each other.

Marriage

Some of the most frequently asked questions about marriage are:

At what age may I get married? You must be at least 15 years old to get married in Utah. However, if you are younger that 18 years old, you will need permission:

If you are 16 to 18 years old, you need permission from a parent or guardian.
If you are 15 years old, you need the permission of a judge.

Once you have been married, you do not need permission to marry again, even if you are still younger than 18.

Who may I marry? In general, you may marry anyone you want who meets all these same requirements that you must meet (i.e., they are old enough or have the required permission). However, there are some exceptions:

You cannot marry someone of the same gender,
You cannot marry a first cousin or anyone more closely related to you than that. Note: there are a few exceptions to this rule such as if you are 65 or older, you may marry a first cousin.

Do I need a marriage license? Yes. You will need a marriage license before you may get married. You may obtain a marriage license from any county clerk. You may obtain a license up to 30 days prior to the marriage.
Who may perform the marriage? Only those who are authorized by law may perform a marriage. Generally, only a religious or governmental official has that authority. Some examples of religious officials include, a minister, rabbi, priest, bishop and a Native Amerimay spiritual advisor. Some examples of a government official include the governor, a mayor, a judge and some members of the legislature. Those authorized to perform marriages should know that they are authorized so you should be sure and ask to make sure.
May I marry more than one person? Yes, but you cannot legally marry or be married to more than one person at a time.
What if I was never officially married? May I still have my relationship recognized as a marriage? Yes, but there are several requirements. If you have lived with another person as if you were married, but never officially married (commonly known as a “common law marriage”), your relationship may be recognized as a marriage, but only through the Courts. In addition, the recognition by the court must take place during the relationship or within one (1) year of the end of the relationship. In order for the Court to recognize your marriage, it must find the following existed:

When the relationship started, both you and your partner met all the requirements listed above (i.e., you both were old enough to get married, had any required permission, were not the same gender, etc.);
You both took on the typical responsibilities and duties involved in a marriage, such as living together, etc.; and
You both acted as if you were married to the extent that those who knew you thought you were married.

What if I got married out of the state of Utah? Utah will recognize a marriage from another state so long as you met the marriage requirements of that state AND you have not violated any Utah laws (you married someone of the same gender or you were younger than 14, etc.)

Annulment

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.

The process for an annulment is similar to a divorce (see below).

Divorce

What if I want a divorce but my spouse doesn’t? There is no way to prevent a divorce in Utah if one spouse wants it even if the other doesn’t.
What’s the difference between a legal separation, an annulment, and a divorce? 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.

Do I need an attorney? 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.
May one lawyer represent both me and my spouse? 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.
May I move either before or after a divorce is filed? 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.
How long does it take to get a divorce in Utah? The answer to this question depends upon the circumstances. Some ideas follow:

Uncontested divorce 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.
Uncontested divorce with children. A divorce may be entered fairly quickly IF the parties may agree on all the issues. This is because divorcing parents are required to take two (2) classes: the Divorce Orientation class and the Divorce Education for Parents Class. Taking these classes waives the required 90 day waiting period.
Contested divorce. If you and your spouse cannot agree on the terms of the divorce, then it could take months or even years.

Is there an advantage to filing first? 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.
Where do I file for a divorce? 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.
Do I have to go to Court? 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.
What is mediation and do I have to go? 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.
May I date or have another relationship before I am divorced? 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.
May I get help preparing the forms for a divorce? 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.
May I get immediate orders to help me survive? 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.
What happens after I fill out & file the paperwork? 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.
Do I have to have a reason to get divorced? 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.
What are my rights (i.e., how is property usually divided)? 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’t 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.

May I change my name? 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.
May I get a restraining order in 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.
What if I disagree with the Judge’s order? 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.
What if I need to make changes after the order is signed? 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.

Parentage/Custody

In a marriage relationship, the issue of custody will be decided as part of the divorce. Without a marriage relationship, the issue of custody may be brought before the Court as a parentage action. The deciding factor in determining custody is the question, “What is in the best interests of the children?” If you may agree on what the best interests of the child are, then you and your children will be better off. However, especially in abusive relationships, agreement may not be made. In this case, the issue will be decided by a Court. The courts look at many things to determine the best interests of the child but it is mainly determined by an examination of which parent has been the children’s primary caretaker.

The court will look at many factors to decide who was the primary caretaker, such as: who gets the child up in the morning; who feeds the child breakfast; who gets the child dressed; who gets the child ready for school; who takes the child to school; who picks the child up from school; who helps the child with homework; who watches the child play with friends; who prepares and eats meals with the child; who reads to the child; who gets the child ready for bed; who makes decisions on medical care; who participates in activities with the child...and many other factors.

Note: Stepparents are not responsible nor do they generally have any rights for their stepchildren following a divorce, unless they have formally adopted those children.

In addition, the Court will generally order that an custody evaluation be performed to help determine the best interests of the child. A custody evaluation is very expensive and the cost is often split between the parties. If a custody evaluation is ordered, you should cooperate fully with the evaluator, as the evaluator’s decision will likely be adopted by the Judge in the case.

Here are some of the most frequently asked questions in parentage/custody actions:

Are there different kinds of custody? There are 2 different kinds of custody which may be shared in 3 main ways. The two types of custody are:

Legal custody which goes to who has the ability to make important decisions concerning the children, and
Physical custody which goes to where the children will live.

As mentioned, each of the two types of custody may be shared in 3 different ways. This may be done differently for each type of custody:

Sole. Legal and/or physical custody may be given to one parent alone (with rights of visitation to the other).
Joint. In joint custody arrangements, both parents are involved. For instance, with joint legal custody, both parents would have a right to make the important decisions regarding the children such as education, religion and non-emergency medical care. This type of arrangement will only work where the parties get along very well and may communicate with each other often. Joint physical custody would entail moving the kids from one parent to the other for some amount of time as decided between the parties or the judge. However, the children must spend more than 110 nights each year in each home to call the arrangement “joint”.
Split. This situation involves more than one child and the children are split between the parents. For example, one will live with the mother and one will live with the father. This type of arrangement is advised only in rare circumstances, as it is rare that this would be in the children’s best interests.

What is a typical visitation schedule for non-custodial parents? It is best to have a visitation schedule that both parents agree to, and one that works best with their schedules. If this cannot be done, Utah has implemented a minimum visitation guideline which will be applied in almost every case, unless there is a very good reason not to use it. In general, this schedule includes one weekday evening and alternating weekends and holidays. The visitation for children under the age of five is different, generally more frequent shorter visits.
May I deny visitation if I don’t get child support? No. Unless there is a specific order from the Court that says otherwise, child support and visitation are separate. You may not deny visitation just because child support has not been paid. Alternatively, the opposite is also true. Just because someone pays child support does not mean they are going to get visitation.
May I ever deny or restrict visitation? Visitation should only be denied if there is some danger to the child if the visitation takes place. If there is some fear of abuse or neglect, you may request supervised visitation and specify who will be present during visitation. Again, however, the courts do not like to restrict visitation so parties must provide a very good reason.
What is the best way to decrease the effect on my child? There are many different ways to help your child. The Divorce Education Class for Parents is a great place to get some ideas on the effects this will have on your child and what you may do to help. Below are some tips:

Put your child’s welfare first. Never use your child as a weapon against your spouse or ex-spouse. This harms your child, and if the judge finds out, it could also harm your case.
Be sure your child has ample time with the other parent. They need it.
Visitation with the other parent should usually NOT take place in your home.
Don’t take your child to your lawyer’s office, to court, or any other place where you must discuss the terms of the custody arrangement.
Be flexible with the visitation schedule, but do your best to be on time for visitation, and give plenty of notice if you may not be on time.
Don’t use your child to spy on the other parent.
Don’t ask for reports about the other parent from the child.
Don’t listen in on phone calls with the other parent.
Assure your child that s/he is not to blame for the breakup and are not being rejected or abandoned by either parent.
Do not speak badly about the other parent in front of the child or any where the child will overhear.

How much child support should I get? The answer to this depends on the number of children you have and the amount of income that you and the other parent has. However, there is very little to fight about when it comes to child support. Utah has adopted statutory child support guidelines. Both parties must supply evidence of their gross monthly income to the court, and complete the appropriate child support worksheet. At the end, the work sheet will give you the amount of child support that should be paid. There are different worksheets for sole custody, joint custody, and split custody. The process is somewhat similar to doing your income taxes. An online calculator for estimating child support is available here.
May I waive child support? No. Child support is not yours; it is your child’s. Even if you and the other parent agree to no child support (or even just child support which is less than the statute requires), the Judge will generally not reduce it unless there are very good reasons. In fact, even is someone is unemployed, the court will often impute income to that person. For example if a party was making $15 an hour and left his or her job, then the court will probably impute an income of $15 per hour for 40 hours per week to that person.
Will I have to work or may I stay home and take care of my children? Again, the answer to this will depend on your circumstances. Generally, however, both parents will have to do their part to provide for the child’s needs. As a result, courts will often expect you to work and/or get trained to work.
If I work, who will pay for day care? Both parents will generally share equally the reasonable child care expenses for the child. Usually, the parent incurring day care expenses will provide written verification of the cost and identity of a child care provider to the other parent when the day care provider is hired and upon the request of the other parent at any time after that. The parent incurring day care expenses must notify the other parent of any changes within 30 days. If the parent incurring day care expenses fails to provide original notice as stated above, the court may determine that the other parent is not obligated to pay.
Will my children be covered under medical insurance? If medical insurance is reasonably available to a parent, that parent should maintain insurance for medical expenses for the benefit of any minor children. For medical expense not covered by insurance, again both parents will share the expenses equally. The information about medical expenses should happen in writing within 30 days.
Who gets to claim the child for income tax purposes? Without an order specifying otherwise, the parent with whom the child lives (if a sole custody arrangement) gets to claim the child as a dependent for income tax purposes. However, this is generally modified. Again, it should be modified in a way that best fits your circumstances and most would say in a way that results in the least amount of tax being paid by both parents together to the government. Some different options are:

Alternating each year. For instance, one parent will take the deduction in odd years, the other will take it in even years
Having the same parent always take the deduction. This may work in two ways: 1) if one parent does not work, the working parent should take the deduction each year, or 2) if there is more than one child, the deduction may be split between the parents. Note: a noncustodial parent may claim the exemption only if that noncustodial parent is actually paying child support in the amount ordered by the court and the custodial parent must sign a form for the IRS allowing the noncustodial parent to take the deduction.
You may also include a “buy-out” clause, which allows one parent to pay to the other parent what the other parent would get if that other parent were to take the deduction.

Are grandparents and/or other extended family allowed specific visitation rights? After the divorce, many parents are uncertain how much contact to allow between their children and their ex-spouse’s extended family. Even though you are divorcing, your children will still be related to your ex-spouse’s extended family by blood. Your guide should always be the best interest of your children. If your children have a bond with the extended family members, then continued contact is probably in your children’s best interest. Whatever you choose to do, the judge has authority to order continued contact that is in a child’s best interest. In addition, there is a special statute that allows grandparents to petition the court for visitation of grandchildren if it is being denied.
May I change the name of my children? Although the answer is technically yes, if both parents do not agree, the chance of getting a court to change the child’s name is small but depends upon the circumstances. There are very specific criteria the courts look at in addition to what is in the best interest of the child.
May I get help preparing the forms for parentage? 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.
What if I disagree with the Judge’s order? If you disagree with the judge’s order on one or more issues, 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.
What if I need to make changes after the order is signed? Once the court enters an order, 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.
How do I enforce parentage, custody and divorce orders? Violation of a parentage, custody or divorce order is considered to be “contempt” because the other party is not following an order of the Court. To enforce the provisions, you must file an “Order to Show Cause” asking the court to find that the party not complying. In enforcing the order, the court may fine or otherwise penalize the party not following the order. If the noncomplying party has failed to pay money, a judgment may be entered against that party. The judgment must be collected by the other party through garnishment or attachment and sale of nonexempt property owned by the noncomplying party. Contempt may also result in the noncomplying party being sent to jail. The order is a civil order of contempt and does not go on a person’s criminal record. The paperwork needed to enforce an order may be obtained through the Utah Courts. They 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 an action in contempt.