1. Physical custody, or which parent the child/children will live with. Physical custody can be a joint, sole, or split custody arrangement; see the FAQ for more detailed information.
2. Legal custody, or the rights and duties of each parent regarding the child/children’s physical care, support, education, and other parental rights, privileges, duties, and powers). It is important to remember that, generally speaking, decisions made by Utah trial courts regarding the custody of children are very difficult ,if not impossible, to change later.
Utah law also presumes that sole custody awarded to one party is in the best interests of the children. As a result, it is important that you take great care and make valiant efforts when litigating the child custody award in your case. If not, you may easily find yourself shocked at the outcome and find your relationship with your children suddenly, radically, and permanently altered. Frankly, without an experienced attorney to explain the child custody process and guide you through it, you take a terrible risk. For more detailed information, please visit my FAQ page.
CHILD SUPPORT
Statutory guidelines dictate the calculation of the parents’ respective child support obligations. Child support includes three components: a monthly monetary payment for regular monthly expenses such as food, clothing, shelter, and other daily and monthly needs or expenses, health care (medical, dental, and hospital insurance), and child care expenses. What a parent pays in child support is determined by statutory tables based upon both parents’ incomes and the proportion of time each parent has custody of children. Thus, the minimum amount one pays in child support is rarely negotiable. For more detailed information, please visit my FAQ page.
Child support, like child custody, is another element of a divorce decree that is very difficult to alter absent a material, non-temporary change in circumstances of the parties involved. Even then, obtaining a change will require additional filings and court appearances, so it won’t be inexpensive. In any event, seeking a change in child support does not guarantee the desired outcome. It is essential that you have excellent representation when child support is concerned. Fighting that battle on your own can result in payments that don’t accurately reflect what you are able to pay or, conversely, what you need. Does your spouse have multiple sources of income that should be included in a child support calculation? Are you concerned your spouse may be hiding income or misstating income to reduce his/her obligation to pay? These are only two of many questions you need to ask yourself in considering whether to hire a divorce lawyer.
It is less expensive and more effective to get your decree right the first time than to try to make changes to it later.
PARENT TIME AND VISITATION
The Utah legislature and Utah courts refer to the term “parent-time” when discussing visitation of the non-custodial parent with their children. “Visitation” is an outdated term. For specific information about parent-time determinations, visit my FAQ page.
Parent-time guidelines are provided for the court in the Utah Code Annotated at § 30-3-35.5. The court will take not only these guidelines into account when making a parent-time determination, but will also consider other evidence and arguments from the parents regarding the interpretation and construction of the Code by the Utah Supreme Court and Utah Court of Appeals. The court can also consider the weight of the evidence and expert testimony presented in pleadings and in arguments before it to determine what parent time arrangement (also known as a parenting plan) it will accept and implement in a particular case. This one reason you need excellent and thorough representation from a knowledgeable and experienced family lawyer. Leaving matters of parent time to chance is unwise at best and could be disastrous at worst.
SPOUSAL SUPPORT AND ALIMONY
Spousal Support
It is not surprising that more often than not, neither party in an alimony/spousal support action is happy with the outcome. Those seeking alimony contend their award is insufficient; those paying alimony contend too much has been demanded of them. They are both right and they are both wrong. Please read on to learn more about the law governing spousal support and alimony.
Q: Does Utah allow alimony, and who can get it?
A: Yes, Utah provides for the award of alimony in a divorce action.Regardless of gender, either party may request and be granted alimony. Alimony may be ordered on a temporary basis, pending trial, as well as for a longer period after entry of the Decree of Divorce. In determining alimony, the courts consider at least the following factors (See Utah Code § 30-3-5(8)):
•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; the longer the marriage, the greater the likelihood of an alimony award;
•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 also 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, but is not required to do so.
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 the marriage.
The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.
The court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.
In determining alimony, the income of any subsequent spouse of the payor may not be considered, except that the court may consider the subsequent spouse’s financial ability to share living expenses, and the court may consider the income of a subsequent spouse if the court finds that the payor’s improper conduct justifies that consideration.
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 cohabitating with another person.