Complete Frequently Asked Questions and Q&A
About Divorce and Utah Family Law

Q: What is the legal definition of marriage in Utah? “Does Utah recognize common law marriage?”

A: See Utah Constitution.  Article 1. Declaration of Rights, Section 29 (Marriage).

       (1)  Marriage consists only of the legal union between a man and a woman.
       (2)  No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

See also:

See also State v. Holm, 137 P.3d 726 (Utah 2006):

Rodney Hans Holm was legally married to Suzie Stubbs in 1986. Subsequent to this marriage, Holm participated in a religious marriage ceremony with Wendy Holm. Then, when Rodney Holm was thirty-two and still married to Suzie, he participated in another religious marriage ceremony with then-sixteen-year-old Ruth Stubbs, Suzie Stubbs's sister. After the ceremony, Ruth moved into Holm's house, where her sister Suzie Stubbs, Wendy Holm, and their children also resided. By the time Ruth turned eighteen, she had conceived two children with Holm, the second of which was born approximately three months after her eighteenth birthday.

Holm was subsequently arrested in Utah, charged with, and convicted of, inter alia, one count of bigamy, in violation of Utah Code section 76-7-101 (2003), a third degree felony. Utah Code section 76-7-101 provides, in pertinent part, as follows:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

On appeal Holm argued that his conviction under the “purports to marry” prong of the bigamy statute was improper as a matter of statutory interpretation. Specifically, Holm argues that he did not “purport to marry” Ruth Stubbs, as that phrase is used in the bigamy statute, because the word “marry” in subsection 76-7-101(1) refers only to legal marriage and neither Holm nor Stubbs contemplated that the religious ceremony solemnizing their relationship would entitle them to any of the legal benefits attendant to state-sanctioned matrimony.

The State argued that “marry” should not be construed as limited to legally recognized marriages. Holm argued that the word “marry” in subsection one refers only to a legally recognized marriage and that, therefore, there is no violation of the “purports to marry” provision unless an individual purports to enter into a legally valid marriage. The Utah Supreme Court held that the term “marry,” as used in the bigamy statute, includes both legally recognized marriages and those that are not state-sanctioned because such a definition is supported by the plain meaning of the term, the language of the bigamy statute and the Utah Code, and the legislative history and purpose of the bigamy statute.

See also:  “Does Utah recognize common law marriage?” (the answer is “Yes,” by the way).

Q: Does Utah recognize common law marriage?
A: Yes.

Q: Does it take seven years to create common law marriage in Utah?
A: No, in fact, there are all kinds of myths regarding the creation of a common law marriage.  To learn the truth, read on.

Q: How is a common law marriage created in Utah?
A: See Utah Code § 30-1-4.5.   Validity of marriage not solemnized.

     (1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:
     (a) are of legal age and capable of giving consent;
     (b) are legally capable of entering a solemnized marriage under the provisions of this chapter;
     (c) have cohabited;
     (d) mutually assume marital rights, duties, and obligations; and
     (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.
     (2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.

Q: What are the legal effects of marriage?
A: There are several Federal and state laws that benefit married couples. Some examples include the right to:

• File joint income tax returns with the IRS and state taxing authorities

• Create a "family partnership" under federal tax laws, which allows you to divide business income among family members (this will often lower the total tax on the income)

• Create a marital life estate trust

• Receive spouse's and dependents' Social Security, disability, unemployment, veterans', pension and public assistance benefits

• Receive a share of your deceased spouse's estate under intestate succession laws

• Claim an estate tax marital deduction

• Sue a third person for wrongful death of your spouse and loss of consortium

• Sue a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these lawsuits are available in only a few states)

• Receive family rates for insurance

• Avoid the deportation of a non-citizen spouse

• Enter hospital intensive care units, jails and other places where visitors are restricted to immediate family

Q: What is a divorce, and how does a divorce differ from an annulment?
A: A divorce:

• ends a marriage and the legal rights and relationships between the couple, except for those provided in the decree of divorce.

• enables the ex-husband and ex-wife to marry someone else.

• divides and distributes the couple's assets and debts

• determine custody of children.

Q: What is “no-fault” divorce, and does it exist in Utah?
A: It used to be that the only way you could get a divorce was if your spouse was “at fault.”  Fault that entitled one to a divorce included adultery, physical abuse, habitual drunkenness, or being sentenced to prison, just to name a few fault bases for divorce.   No-fault divorce means that you can get a divorce without having to show your spouse is at fault.  Because of no-fault divorce, you can literally get a divorce now for no reason at all.  The majority of divorces are now no-fault divorces.  Utah law provides for no-fault divorce.

Q: Does “fault-based” divorce still exist in Utah?
A: Yes, you can still file for a fault-based divorce in Utah.  But to obtain a divorce based upon fault, you have to prove your spouse is at fault, and that can be difficult, if not impossible, sometimes.  For example, if your spouse committed adultery, but he/she won’t admit it, and you have no objective proof, how would you prove adultery to the court?  If you claim your spouse passed a sexually transmitted disease to you, how could you prove your spouse did it?  How would the court know you didn’t get the disease from someone else?  Because of problems like this, most people choose a no-fault divorce because you don’t have to prove fault to get a no-fault divorce.

Q: What is “child custody” and how is it decided in a divorce case?
A:  When parents separate or divorce, one of the most difficult determinations is which parent will have custody of the children, now that the mother and father will no longer live together with the children in a nuclear family.  Child custody and guardianship are legal terms that describe the legal and practical relationship between parents and children.

Parents can fashion any custodial or visitation/parent-time arrangement that they believe is in their children's best interest, and if the court agrees that the parents’ custodial or visitation/parent-time arrangement is in their children's best interest it will allow that arrangement to be part of the Decree of Divorce.  If the parents cannot agree on a custodial arrangement, the court will do it for them.

There are two basic kinds of “child custody,” physical custody and legal custody.

Legal custody is defined in Utah Code § 78-3a-103(r) (from the Juvenile Court Act of 1996):

(r) "Legal custody" means a relationship embodying the following rights and duties:

     (i) the right to physical custody of the minor;
     (ii) the right and duty to protect, train, and discipline the minor;
     (iii) the duty to provide the minor with food, clothing, shelter, education, and ordinary medical care;
     (iv) the right to determine where and with whom the minor shall live; and
     (v) the right, in an emergency, to authorize surgery or other extraordinary care.

The definition of legal custody could also arguably include the following from Utah Code §§ 30-3-10.3, 30-3-1.7, and 30-3-10.8:

• the sole legal right to determine the residence of the child;
  
• authority to decide matters of the health, education, welfare, religious upbringing, safety, care, control and growth of the child;
• rights and duties of regarding the child's present and future physical care, support, and education;
• duty to minimize disruption of the child's attendance at school and other activities, his daily routine, and his association with friends; and
• remaining parental rights, privileges, duties, and powers to be exercised by the parents solely, concurrently, or jointly.
• duty to provide for the child's physical care;
• duty to maintain the child's emotional stability;
• duty to provide for the child's changing needs as the child grows and matures;
• duty to minimize the child's exposure to harmful parental conflict;
• duty to protect the best interests of the child;
• duty to resolve disputes between the parents,
• decisions regarding the day-to-day care and control of the child;
• attending to the daily needs of the child, such as feeding, clothing, physical care, grooming, supervision, health care, day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;
• attending to adequate education for the child, including remedial or other education essential to the best interest of the child;
• assisting the child in developing and maintaining appropriate interpersonal relationships;
• exercising appropriate judgment regarding the child's welfare, consistent with the child's developmental level and family social and economic circumstances; and
• providing for the financial support of the child.

“Joint legal custody” can have several interpretations and, minimally, means that both parents jointly decide issues affecting the children such as (but not limited to) matters of health, education, and general welfare.

“Joint Legal custody” is defined in the Utah Code at § 30-3-10.1:

     As used in this chapter:
     (1) "Joint legal custody":
     (a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;
     (b) may include an award of exclusive authority by the court to one parent to make specific decisions;
     (c) does not affect the physical custody of the child except as specified in the order of joint legal custody;
     (d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and
     (e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

Physical custody is defined nowhere in any Utah statute or case law.  I’m serious.  But just because “physical custody” is not defined does not stop the courts from granting it, for example, “sole physical custody” or “joint physical custody” or “split custody” to a parent or parents in a divorce action.  See, e.g., Burge v. Facio, 88 P.3d 350 (Utah App. 2004); Hudema v. Carpenter, 989 P.2d 491 (Utah App 1999); Tucker v. Tucker, 881 P.2d 948 (Utah App 1994).

The legislature uses terms such as “joint physical custody” and “sole custody” (See § 30-3-10(5)), but does not define “sole custody” anywhere.  Neither do the courts.  "Sole" custody of the children typically means one parent has physical custody of the children and makes the major decisions regarding the children's lives.

Utah Code § 78-45-2 defines “Joint physical custody” and “split custody” as follows:

(13) "Joint physical custody" means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.

* * * * *

(19) "Split custody" means that each parent has physical custody of at least one of the [multiple] children.

Joint legal custody is distinct from and has no bearing on physical custody of children and where they reside.  “Joint physical custody” is where parents share physical time with the children and that the children live in both homes.

“Joint Physical custody” is defined in the Utah Code at § 30-3-10.1:

     As used in this chapter:

* * * * *

     (2) "Joint physical custody":
     (a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support;
     (b) can mean equal or nearly equal periods of physical custody of and access to the child by each of the parents, as required to meet the best interest of the child;
     (c) may require that a primary physical residence for the child be designated; and
     (d) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

Q: When parents dispute child custody what standards apply in Utah to determine the child custody award?
A: Where there is a disputed between parents over child custody, the court decides the issue.  Custody awards are based the “best interests of the child” standard, i.e., what custody arrangement serves the best interests of the child? 

Other factors the courts consider in Utah for determining child custody are found at:

§ 30-3-10.   Custody of children in case of separation or divorce -- Custody consideration.

     (1)(a) In determining any form of custody, the court shall consider the best interests of the child and, among other factors the court finds relevant, the following:
     (i) the past conduct and demonstrated moral standards of each of the parties;
     (ii) which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;
     (iii) the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child; and
     (iv) those factors outlined in Section 30-3-10.2.
     (b) The court shall, in every case, consider joint custody but may award any form of custody which is determined to be in the best interest of the child.

* * * * *

     (d) The court may inquire of the children and take into consideration the children's desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children's custody or parent-time otherwise. The desires of a child 16 years of age or older shall be given added weight, but is not the single controlling factor.

* * * * *
     (2) In awarding custody, the court shall consider, among other factors the court finds relevant, which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the noncustodial parent as the court finds appropriate.
     (3) If the court finds that one parent does not desire custody of the child, or has attempted to permanently relinquish custody to a third party, it shall take that evidence into consideration in determining whether to award custody to the other parent.
     (4) (a) Except as provided in Subsection (4)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.
* * * * *
     (5) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

§ 30-3-10.2.   Joint custody order -- Factors for court determination -- Public assistance.

     (1) The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.
     (2) In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court shall consider the following factors:
     (a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
     (b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;
     (c) whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
     (d) whether both parents participated in raising the child before the divorce;
     (e) the geographical proximity of the homes of the parents;
     (f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
     (g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
     (h) the past and present ability of the parents to cooperate with each other and make decisions jointly;
     (i) any history of, or potential for, child abuse, spouse abuse, or kidnapping; and
     (j) any other factors the court finds relevant.
     (3) The determination of the best interest of the child shall be by a preponderance of the evidence.
     (4) The court shall inform both parties that an order for joint physical custody may preclude eligibility for cash assistance provided under Title 35A, Chapter 3, Employment Support Act.
     (5) The court may order that where possible the parties attempt to settle future disputes by a dispute resolution method before seeking enforcement or modification of the terms and conditions of the order of joint legal custody or joint physical custody through litigation, except in emergency situations requiring ex parte orders to protect the child.

Q: What is visitation, exactly?
A: Visitation is also known as parent-time.  Visitation and parent-time are defined as “A noncustodial parent's, period of access to a child.” Black's Law Dictionary (8th ed. 2004)

Supervised visitation or parent-time is a situation, usually court-ordered, in which a parent may visit with the child or children only in the presence of some other individual because the parent exercising visitation or parent-time is known or believed to be prone to physical abuse, sexual abuse, violence, or poses some other danger to the children. Black's Law Dictionary (8th ed. 2004)

If sole custody is awarded, the non custodial parent is awarded "visitation" (what is now currently called “parent-time” in the Utah Code) with the children. Utah has a “standard” or “default” schedule of parent-time that allows weekly contact for three hours per week, alternating holidays, at least half of summer vacation, and on alternating weekends, overnight visits for children five and older.

Parties can vary from the standard schedule and create any schedule of visitation that they and the court deem appropriate for them and the children's needs. Schedules often have to vary depending on the ages of the children and how far apart the parents live.

Q: What impact does a child's age have on parent-time scheduling in Utah?
A:  If the parents do not reach agreement on a parent-time schedule, the Utah Code contains a schedule that is considered the minimum parent-time to which the noncustodial parent and the child shall be entitled. 

The minimum parent-time schedule for children under 5 years of age is found at  Utah Code § 30-3-35.5. 

The minimum parent-time schedule for children 5 to 18 years of age is found at Utah Code § 30-3-35.

Remember: these statutory schedules are minimums, and only for situations where the parents cannot agree on a parent-time schedule of their own.  They are not mandatory schedules in all cases.

Q: Can I terminate visitation if I am not being paid the support I am owed?
A: No.  The policy is that even if a parent is not paying support, it only hurts children worse to lose contact with the parent on top of losing the financial support. 

If a parent fails to comply with a provision of a child support order, the other parent's obligations under the parenting plan or the child support order are not affected. (See Utah Code § 30-3-10.9(9)).  To enforce compliance with a provision of the parenting plan or a child support order one must file a motion to find the non-compliant parent in contempt of court and have him/her punished by the court in the form of financial sanctions, suspension of driver and professional licenses, and even jail. 

Q: Can I terminate paying child support if my ex-spouse is withholding parent-time or visitation from me?
A: No.  The policy is that even if a parent withholds parent-time, it only hurts children worse to lose financial support for something that is not the fault of the children. 

To enforce compliance with a provision of the parent-time schedule one can file a Motion to Enforce Parent-time and/or a motion to find the non-compliant parent in contempt of court and have him/her punished by the court in the form of financial sanctions, counseling, and jail sentences.  You can also ask for an order from the court for make-up time to give you back the parent-time you were deprived of.

Q: Can I relocate?
A: Utah Code § 30-3-37 requires that if either parent decides to move from Utah or 150 miles or more from the residence, that parent must provide reasonable, advance, written notice:

30-3-37.   Relocation.

     (1) When either parent decides to move from the state of Utah or 150 miles or more from the residence specified in the court's decree, that parent shall provide if possible 60 days advance written notice of the intended relocation to the other parent. The written notice of relocation shall contain statements affirming the following:
     (a) the parent-time provisions in Subsection (5) or a schedule approved by both parties will be followed; and
     (b) neither parent will interfere with the other's parental rights pursuant to court ordered parent-time arrangements, or the schedule approved by both parties.
     (2) The court may, upon motion of any party or upon the court's own motion, schedule a hearing with notice to review the notice of relocation and parent-time schedule as provided in Section 30-3-35 and make appropriate orders regarding the parent-time and costs for parent-time transportation.
     (3) In determining the parent-time schedule and allocating the transportation costs, the court shall consider:
     (a) the reason for the parent's relocation;
     (b) the additional costs or difficulty to both parents in exercising parent-time;
     (c) the economic resources of both parents; and
     (d) other factors the court considers necessary and relevant.
     (4) Upon the motion of any party, the court may order the parent intending to move to pay the costs of transportation for:
     (a) at least one visit per year with the other parent; and
     (b) any number of additional visits as determined equitable by the court.
     (5) Unless otherwise ordered by the court, upon the relocation of one of the parties the following schedule shall be the minimum requirements for parent-time with a school-age child:
     (a) in years ending in an odd number, the child shall spend the following holidays with the noncustodial parent:
     (i) Thanksgiving holiday beginning Wednesday until Sunday; and
     (ii) the fall school break, if applicable, beginning the last day of school before the holiday until the day before school resumes;
     (b) in years ending in an even number, the child shall spend the following holidays with the noncustodial parent:
     (i) the entire winter school break period; and
     (ii) Spring break beginning the last day of school before the holiday until the day before school resumes; and
     (c) extended parent-time equal to 1/2 of the summer or off-track time for consecutive weeks. The children should be returned to the custodial home no later than seven days before school begins; however, this week shall be counted when determining the amount of parent-time to be divided between the parents for the summer or off-track period.
     (6) Upon the motion of any party, the court may order uninterrupted parent-time with the noncustodial parent for a minimum of 30 days during extended parent-time, unless the court finds it is not in the best interests of the child. If the court orders uninterrupted parent-time during a period not covered by this section, it shall specify in its order which parent is responsible for the child's travel expenses.
     (7) Unless otherwise ordered by the court the relocating party shall be responsible for all the child's travel expenses relating to Subsections (5)(a) and (b) and 1/2 of the child's travel expenses relating to Subsection (5)(c), provided the noncustodial party is current on all support obligations. If the noncustodial party has been found in contempt for not being current on all support obligations, he shall be responsible for all of the child's travel expenses under Subsection (5), unless the court rules otherwise. Reimbursement by either responsible party to the other for the child's travel expenses shall be made within 30 days of receipt of documents detailing those expenses.
     (8) The court may apply this provision to any preexisting decree of divorce.
     (9) Any action under this section may be set for an expedited hearing.
     (10) A parent who fails to comply with the notice of relocation in Subsection (1) shall be in contempt of the court's order.


Q: How is child support calculated?
A: 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, healthcare (medical, dental, and hospital insurance), and child care expenses. Statutory tables based upon both parents’ incomes and the proportion of time each parent has custody of children determines what a parent pays in child support.

Utah law requires the use of both parents' incomes to determine a child support amount. The income the support is based upon is limited to the equivalent of one full-time job. Generally, overtime and additional part-time jobs are not included. Case assistance, Supplemental Security Income (SSI), and Social Security Disability Insurance (SSDI), are not considered as income. Pensions, Social Security Benefits, Workman's Compensation, and Disability Insurance benefits are considered income (this information is from a pamphlet published by the Salt Lake County Bar Association).

The non custodial parent—or the parent whose income is greater than the other’s in cases of joint physical custody—pays child support. In addition, the guidelines require parents to provide medical coverage for their minor children, if it is available at a reasonable cost, and to share the costs of the children's portion of the premium in addition to non covered expenses, including deductibles and copayments, for the children's medical care. Finally, the courts require the parties to share work related child care expenses. Child support continues until the child is 18 and has completed high school (child support can be extended to age 21 in special circumstances) (this information is from a pamphlet published by the Salt Lake County Bar Association).

The courts, upon petition by either parent, may increase or decrease the child support obligation if significant changes in income or other circumstances have occurred since the entry of the Decree of Divorce (this information is from a pamphlet published by the Salt Lake County Bar Association).

Utah courts generally set child support in compliance with the guidelines, although in unusual circumstances the courts may order a higher or lower amount. Child support amounts can be agreed upon by the parties, but the courts must approve their agreement before it becomes an enforceable order of support (this information is from a pamphlet published by the Salt Lake County Bar Association).

An order requiring a non-custodial parent's employer to withhold the child support amount from the parent's earnings may be entered by the courts at any time, even if the parties agree to another method of payment (this information is from a pamphlet published by the Salt Lake County Bar Association).

Q: Can I get child support if I never married?
A: Yes.  Every parent has a statutory obligation to support his child and every child shall be presumed to be in need of the support of each of its parents.  The expenses incurred on behalf of a minor child for reasonable and necessary medical and dental expenses, and other necessities are chargeable upon the property of both parents, regardless of the marital status of the parents.  Either or both parents may be sued by a creditor for such expenses incurred on behalf of minor children.

Q: Can I get a divorce without an attorney?
A: Yes, but don’t ask me how.  You wouldn’t ask a mechanic to tell you how to fix your own car, and you wouldn’t ask a carpenter to show you how to build your own house.

Q: Should I get a divorce without an attorney?
A: I recommend people retain an attorney whether they are rich or poor, and whether they have children or not.  Why?  Because divorce is a complex thing.  If you make a mistake, you’re stuck with it.  Why risk a costly mistake due to your own ignorance when there are attorneys who can help you?

Q:  What is the fastest, cheapest, way to terminate a marriage?
A:  Death of the spouse.  Hey, you asked a simplistic question, I gave you a simplistic answer.

Q:  Cute, Johnson. Then what is the easiest way to get a divorce?
A:  Give the other spouse whatever he or she wants in exchange for an agreement to dissolve the marriage.  Again, you asked the silly question.

Q:  All right, smarty pants; so, short of my spouse dying and short of me giving away the farm to get a quick divorce, what can I expect?
A:  Now we’re getting somewhere.  Please read on.

Q: How long does a divorce case take from start to finish?
A: That’s like asking, “How long will I live?”  I can give you an estimate or an average, but each person’s situation is unique.  If you eat right, exercise, and avoid dangerous activities, odds are you’ll live a long time, but even the healthiest guy can’t avoid accidentally being hit by a bus. 

The average time for a divorce is about 6 to 9 months, depending upon how much the parties fight over everything.  If you are young, poor, and have no house, major assets, or children a divorce can be a relatively quick and inexpensive project.  If you are older, making good money, have a house, retirement and pension assets, investments, etc., and if you have children and/or you’re married to a real jerk, a divorce case can last for years and consume tens of thousands of dollars before it’s over.

Q: What is your best estimate of the fees and costs I will be charged?
A:  Again, this depends on how difficult the case is.  The average divorce case runs anywhere between $950 (for an uncontested divorce) to over $10,000 for contested divorces.  If you are particularly wealthy and/or have numerous disputed issues in your divorce action, there’s no limit to how much a divorce can cost.  The average cost of a contested divorce that I handle runs about $6,000 to $7,000.

Word to the wise:  When it comes to the time and money involved in a divorce, There’s a saying which describes the situation perfectly:

Good.  Fast. Cheap.  Pick any two.

Q: Will my spouse ask the court to order me to pay his/her attorneys' fees?
A: Almost certainly, yes. 

Q: Can I have my spouse pay my attorneys' fees?
A:  Yes, but only if the court orders it.

Q: What are the odds of the court ordering an award of attorney’s fees?
A:  Slim (ask any of your divorced friends if you don’t believe me).  Some attorneys try to lure the gullible into litigation by telling the client, “I’ll ask the court to order the other side to pay your attorney’s fees!  It’ll be like getting a divorce for free!.”  Sure, the attorney can ask the court to award fees, but the court is not required to order your spouse to pay, even if you “win” and the other spouse “loses” the case. 

Rarely does the court make one party pay the other’s fees.  Even when attorney’s fees are awarded, the court does not award you everything you ask.  Usually you and the opposing party both end up paying your own respective attorney’s fees.  Don’t ever engage in a lawsuit in the belief that you’ll get your attorney’s fees back through an order from the court.  The odds are against you.

Here are the rules and law governing an award of attorney’s fees in Family Law settings:

Utah Rules of Civil Procedure, Rule 102. Motion and order for payment of costs and fees.

102(a) In an action under Utah Code Section 30-3-3(1), either party may move the court for an order requiring the other party to provide costs, attorney fees, and witness fees, including expert witness fees, to enable the moving party to prosecute or defend the action. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amount requested.

30-3-3.   Award of costs, attorney and witness fees -- Temporary alimony.

     (1) In any action filed under Title 30, Chapter 3, 4, or 6, and in any action to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.
     (2) In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.
     (3) In any action listed in Subsection (1), the court may order a party to provide money, during the pendency of the action, for the separate support and maintenance of the other party and of any children in the custody of the other party.
     (4) Orders entered under this section prior to entry of the final order or judgment may be amended during the course of the action or in the final order or judgment.

Q: How do I know if I have found a good attorney for me?
A:  Trust your heart. 
Seriously, folks, this is not the brightest question to ask of anyone with a product or service to sell you because by asking him “Just what do I need?,” you run the risk of having him tell you, “Just what I have,” whether “just what he has” is right for your or not. 

Ethical rules prohibit all attorneys from claiming to be the best attorney in a given field (why, I don’t know, but I believe it has to do with 1) ensuring the mediocre attorneys aren’t driven out of business; and 2) a naïve belief that the general public takes every word an attorney speaks as gospel, but somehow can be trusted to know that claims like “The best pizza in Utah!” are not to be taken literally).  That stated, here are a few things that should strike you as common sense rules to guide you in finding not only a smart attorney, but one whose style and personality you can work with as well:

• Hire an attorney with expertise in Family Law.  While in all humility I confess that Family Law is not rocket science, it is definitely an complex area of expertise, with its own lingo and rules.  Family Law is not something that all lawyers know.  Family Law is not a required class in law school.  I, however, did take Family Law in law school, I have taught family law to college students and other attorneys alike, and I wrote the book on Utah Family Law—it is aptly entitled Utah Family Law.  I unapologetically declare that I know Utah Family Law.
  
  
• Hire an attorney who actually likes practicing Family Law.  I love practicing Family Law, and I’ll tell you why, giving the reasons in order of importance:

            1. I won’t say, “Family Law is my passion” because that’s a silly phrase.  To prove my point, I Googled  “is our passion” and here is just a sampling of what I found:

Radiant Floor Heating is our passion at Climatec	I kid you not.  This is a real slogan.  Go to:  www.climatecadvanced.com
Our doubt is our passion	Are you sure?
Design is our passion. What's yours?	So glad you asked.  My passion is Family Law . . . and radiant floor heating.
Toilet tank lids is our passion. All sizes and shapes	. . . and toilet tank lids.
Art is our Passion	What a coincidence. Passion happens to be my Art.
Hanna Gallery: Artistically photographing your special event is our passion	That’s a relief.  I was afraid you might tastelessly photograph my special event.
Accessibility is My Passion	You need to get out more (heh, heh).

So much for passion.  Actually, here’s one more:

YOUR PLEASURE IS MY PASSION.........EXPERINCE SHEILA!!!! Reply to: serv-487015443@craigslist.org Come and join me in my private and very discret studio. A very comfortable enviroment with candles lit and soft smooth music playing with fresh and clean linen.

What?  No radiant floor heating?

I do excellent work, and doing my job well is satisfying.  I like doing what I do.  Too many divorce and Family Law attorneys seem to just go through the motions; they’re apathy and discouragement is palpable.  You won’t have that experience with me.

            2. The will to win.  I don’t shrink from a fight.  I don’t do merely an adequate job for clients, I work to win.  If you’re looking for an attorney who “builds consensus,” “sees the opposing party as a partner, not an adversary,” “thinks win-win” or “is only looking out for the children” go elsewhere, really. 

Don’t get me wrong.  Healing and caring, peacemaking and cooperation are all worthy objectives, but you can’t cooperate if the other side is bent on destroying you and/or taking your to the cleaners.  You can’t make peace or a fair compromise with someone like that.  You can only get relief by destroying the destroyer.  I’ll never encourage a client to fight a battle the client can’t win, but  you should never compromise out of fear or frustration, laziness, or peer pressure (if you run out of money, that’s another matter). 

A lawyer’s first priority should not be compromise (sometimes compromise is the best course of action, but it’s not necessarily the goal).  A lawyer’s first priority should not be taking care of anyone other than his client.  I am not here to take care of your spouse or your kids.  I am not here to please the judge or have him praise me for being so “easy to work with.”  I am here to take care of you.  That doesn’t mean I take a “my client, right or wrong” approach, but it does mean that I serve a client despite opposition, obstruction or personal inconvenience to me.  It is my job to act with commitment and dedication to the interests of the client and with zeal in advocacy, while treating others involved in the legal process ethically, and with courtesy and respect.

If your case is just, neither you nor your attorney should be afraid to go to court and battle it out at trial.  There is no shame—absolutely no shame—in taking a stand for what you believe is right.  Should you go bankrupt doing that?  No, but should you give up your kids, house, cars, and saddle yourself with years of alimony just to save a few bucks on your divorce or to avoid being labeled “difficult”?  What you value is worth fighting for.  Get a lawyer who can fight to win.  Let the consequence follow.

            3.  I am responsive, and treat your time and money as if it were my own.  I always respond to calls and e-mails promptly.  I always answer questions so that the client understands.  I will not advise a client to fight a battle he/she cannot win.  I will not ask or advise a client to do anything I would not do myself, were I in that client’s shoes.

            4. You can’t put a price on your children or your reputation.  Your house, your retirement savings, and things like them are worth fighting for too, so money paid to a good lawyer to fight for these important things is money well spent.  It feels better charging a client for a useful service.

            5. I am reasonably priced, and work quickly.  My initial retainer is $1,500 (a bargain, but don’t take my word for it, shop around).  My hourly rate is $200.  I move cases along at the pace I would want to go, were I the client.

            6. I enjoy exposing fraud, self-serving arguments and poor reasoning, and since about half of the arguments made in Family Law cases consist of -fraud, self-serving arguments, and poor reasoning, I have plenty of opportunities to do what I enjoy.

• Always have a written representation agreement between you and your lawyer.  Make sure you understand all terms of the representation agreement.
  
  
• Ensure you receive a monthly billing statement that describes the dates your lawyer’s office  performed any work for you, a description of the work done, the time taken to perform the work, how much you were charged, and the billing rate of the person who did the work. If you find a mistake or a charge on your statement that you don't understand, your lawyer should be willing to review it immediately.
  
  
• Cooperate with your lawyer.  When he requests documents from you, gather them all together and bring or send them to him immediately.  Answer your lawyer’s questions in detail when he prepares your paperwork for court.  Arrive at appointments and court dates on time.  Pay your bill to ensure your lawyer stays on the job.  If you have questions, or if you are unhappy, talk to your lawyer immediately, so that your questions and complaints can be addressed and resolved.
  
  
• Be realistic.  You may think you are realistic, but few Family Law clients are.  They are too close to the case to have the same perspective that a judge will have.  A lawyer is not a wizard who can solve any and all problems with the wave of his magic pen.  Laws govern what you can and cannot get out of your Family Law case.  If you’re $20,000 behind on child support for no good reason, your lawyer can help you, but he can’t work miracles.  If your husband earns $30,000 a year, you’re not going to get $2,000 per month in alimony.  If your spouse is a good parent, your lawyer can’t get him or her banished to the seventh circle of Hell.
  
  
• Be prepared to spend some money.  As with any situation where quality matters, you get what you pay for when you hire an attorney.  If you want to $500 for a divorce, I can show you someone who will claim to do it.  But a $500 divorce will be about as valuable to you as $500 car.

Q: What if one spouse wants a divorce and the other doesn't?
A:  There is no way to prevent a divorce in Utah if one spouse wants it and the other doesn't.  Court’s can, but in my experience, never have, exercised family counseling powers (See 30-3-12.   Courts to exercise family counseling powers), and unless otherwise ordered by the court, every divorcing couple is required to participate in at least one session of mandatory domestic mediation to help reduce the time and tensions associated with obtaining a divorce (See 30-3-39.   Mediation program).

There is, however, a way to seek the help of the courts to save a marriage and prevent a divorce.  It is a petition for conciliation.  To learn more about a petition for conciliation, click on the links below:

§ 30-3-16.1    Jurisdiction of family court division -- Powers.

§ 30-3-16.2    Petition for conciliation.

§ 30-3-16.3    Contents of petition.

§ 30-3-16.4    Procedure upon filing of petition.

§ 30-3-16.5    Fees.
 
§ 30-3-16.6    Information not available to public.
 
§ 30-3-16.7    Effect of petition -- Pendency of action.
 
§ 30-3-17    Power and jurisdiction of judge.
 
§ 30-3-17.1    Proceedings deemed confidential -- Written evaluation by counselor.
 
§ 30-3-18    Waiting period for hearing after filing for divorce -- Exemption -- Use of counseling and education services not to be construed as condonation or promotion.
 

Q: Who makes the decisions about child custody and support, property division, spousal maintenance and other matters?
A: Whatever reasonable agreements a couple makes will be accepted by the court and made the order of the court when it issues the Decree of Divorce.  If the couple cannot agree on one or more of these issues, it will be necessary for the court to make the decision for them. In many courts, there are domestic relations commissioners who specialize in family law matters who dispose of some preliminary issues. If the matter goes to trial, the judge will make the final decision.

It is arguable as to whether a divorce case may be tried by a jury. 

§ 78-21-1.   Right to jury trial.

     In actions for the recovery of specific real or personal property, with or without damages, or for money claimed as due upon contract or as damages for breach of contract, or for injuries, an issue of fact may be tried by a jury, unless a jury trial is waived or a reference is ordered.

No one has ever tried to have a divorce case tried by a jury, but  Utah Code § 78-21-1 could be read to mean that a jury could be empanelled because a divorce often seeks recovery of specific property, money claimed as due on the marriage contract (equitable division of home equity or retirement funds, for example).  On the other hand:

“Divorce actions existed at statehood, were considered equitable in nature, and no right to a jury trial existed.”  Hyatt v. Hill, 714 P.2d 299 (Utah 1986).

But:

In circumstances where doubt exists as to whether the cause should be **129 regarded as one in equity, or one in law wherein the party can insist on a jury as a matter of right, the trial court should have some latitude of discretion. In making that determination it is not bound by the ostensible form of the action, nor by the particular wording of the pleadings. It may examine into the nature of the rights asserted and the remedies sought in the light of the facts of the case of ascertain which predominates; and from that determination make the appropriate order as to a jury or non-jury trial (See Sonleitner v. Superior Court, 158 Cal.App.2d 258, 322 P.2d 496; Hutchason v. Marks, 54 Cal.App.2d 113, 128 P.2d 573; People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 231 P.2d 832; Petty et ux v. Clark et al, 113 Utah 205, 192 P.2d 589). The fact that the division of court hearing the pre-trial indicates that the case is set for a trial by jury is entitled to some consideration and should not be countermanded without good reason. Nevertheless it is the prerogative of the judge who actually tries the case to make the determination. Unless it is shown that the ruling was patently in error or an abuse of discretion, this court will not interfere with the ruling thereon.

Sweeney v. Happy Valley, Inc., 417 P.2d 126, 128-29 (Utah 1966)

Q: What is a legal separation and what's the difference between that and divorce?
A: The term for what some call a legal separation in Utah is “separate maintenance.”  The parties live separately, but remain legally married to one another. The individuals' rights and duties to each other are determined in a Decree of Separate Maintenance which covers matters such as custody and child support, spousal support, division of property, and payment of debts. The legal procedures are very similar to those for divorce, except the grounds for legal separation are:

Whenever a resident of this state:

     (1) deserts a spouse without good and sufficient cause;
     (2) being of sufficient ability to provide support, neglects or refuses to properly provide for and suitably maintain that spouse;
     (3) having property within this state and the spouse being a resident of this state, so deserts or neglects or refuses to provide such support; or
     (4) where a married person without that person's fault lives separate and apart from that spouse,

the district court shall, on the filing of a complaint, allot, assign, set apart and decree as alimony the use of the real and personal estate or earnings of the deserting spouse as the court may determine appropriate. During the pendency of the action, the court may require the deserting spouse to pay a sum as provided in Section 30-3-3.  (See Utah Code § 30-4-1)

If the couple later decides to divorce, they must file a separate action for divorce.

Utah Code § 30-3-4.5 provides for a “temporary separation order” as follows:

     (1) A petitioner may file an action for a temporary separation order without filing a petition for divorce by filing a petition for temporary separation and motion for temporary orders if:
     (a) the petitioner is lawfully married to the respondent; and
     (b) both parties are residents of the state for at least 90 days prior to the date of filing.
     (2) The temporary orders are valid for one year from the date of the hearing, or until one of the following occurs:
     (a) a petition for divorce is filed and consolidated with the petition for temporary separation; or
     (b) the case is dismissed.
     (3) If a petition for divorce is filed and consolidated with the petition for temporary separation, orders entered in the temporary separation shall continue in the consolidated case.
     (4) Both parties shall attend the divorce orientation course described in Section 30-3-11.4 within 60 days of the filing of the petition, for petitioner, and within 45 days of being served, for respondent.
     (5) Service shall be made upon respondent, together with a 20-day summons, in accordance with the rules of civil procedure.
     (6) The fee for filing the petition for temporary separation orders shall be $25. If either party files a petition for divorce within one year from the date of filing the petition for temporary separation, the $25 shall be credited towards the filing fee for the divorce.

Q: Can the same lawyer represent both me and my spouse?
A:  No.  Representing two opposing parties in any lawsuit, especially a divorce action, is a conflict of interest.  Rule 1.7 of the Utah Rules of Professional Practice pertain to conflicts of interest:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(a)(1) The representation of one client will be directly adverse to another client; or
(a)(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

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.

Q: Who pays the debts incurred during the marriage?
A: If the parties cannot agree which of them should pay each of their marital debts, then the court decides the issue.  Bear in mind, however, that the party's agreement or the court's decree are binding only between the parties.  Utah law allows for notice to be given to creditors as to which party is responsible for the debt (See Utah Code §§ 15-4-6.5; 30-3-5(1)(c)); however, creditors are not required to honor the apportionment of joint debts in the Decree of Divorce or agreement. Thus, if the spouse who is ordered in the Decree of Divorce to pay fails to do so, creditors are perfectly within their rights to seek payment from the other spouse. When creditors pursue collection through the other spouse, he or she can try to collect the money from the one who was supposed to pay by seeking to enforce the provisions of the Decree of Divorce against the other spouse.

Q: How long does it take to get a divorce in Utah?
A: If the parties do not reach agreement out of court, then they must proceed to hearings, the discovery process, mediation and other settlement processes, and, potentially, a trial before the assigned judge.

The divorce can remain pending for a matter of months or even years, depending on the complexity of the issues and the depth of animosity between the spouses.  Prior to proceeding to a pretrial or trial, the parties to a divorce must either engage in mediation or arbitration, or seek court permission to opt out. Such programs are designed to afford parties an alternative to court proceedings and litigation (and keep the courts from getting clogged with divorce cases).

Divorce Procedure – Residency Requirements – Grounds

See Utah Code § 30-3-1:

The court may decree a dissolution of the marriage contract between the petitioner and respondent in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought (or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders) for three months next prior to the commencement of the action.

Grounds for divorce:

     (a) impotency of the respondent at the time of marriage;
     (b) adultery committed by the respondent subsequent to marriage;
     (c) willful desertion of the petitioner by the respondent for more than one year;
     (d) willful neglect of the respondent to provide for the petitioner the common necessaries of life;
     (e) habitual drunkenness of the respondent;
     (f) conviction of the respondent for a felony;
     (g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
     (h) irreconcilable differences of the marriage;
     (i) incurable insanity; or
     (j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.

Waiting period

See Utah Code § 0-3-18:

     (1) Unless the court, for good cause shown and set forth in the findings, otherwise orders, no hearing for decree of divorce shall be held by the court until 90 days shall have elapsed from the filing of the complaint, provided the court may make such interim orders as may be just and equitable.
     (2) The 90-day period as provided in Subsection (1) shall not apply in any case where both parties have completed the mandatory educational course for divorcing parents as provided in Section 30-3-11.3.
  

Q:  What is the minimum number of documents one must file with the Court to obtain a divorce in which children are involved?
A:  19 (See below for a description)

• Civil Action Cover Sheet
• Certificate of Divorce, Dissolution, or Annulment
• Affidavit of Military Service
• Order regarding Respondent’s Military Service
• Petition for Divorce
• Service Documents (Acceptance of Service, Appearance, Consent and Waiver Summons and Return of Service)
• Notice of Divorce Education Requirement
• Petitioner’s Divorce Education Certificate or Affidavit (if video is used.)
• Copies of the child support obligation worksheet
• Affidavit of Income Verification and Compliance with Child Support Guidelines
• Verification of Income for both parties
• Most recent pay stub with year to date earnings for both parties
• Latest Income Tax Return for both parties
• Most recent pay stub with year to date earnings for both parties
• Required Location Information Form
• Child Identification Information Form
• Findings of Fact and Conclusions of Law
• Decree of Divorce
• Notice to Submit for Entry of Decree of Divorce

Division of Property and Debt

In Utah, the distribution of property and debt upon divorce must be done in a fair and systematic way. There is a presumption that each party is [presumptively] entitled to all of their separate property and fifty percent of the marital property. Burt v. Burt, 799 P.2d 1166, 1172 (Utah Ct.App.1990).

Division of marital estate that placed burden of paying most marital debts on former husband was equitable, although not equal, given relative earning capacities and current state of employment of former husband and former wife.  Baker v. Baker, 866 P.2d 540, Utah.App.,1993.

The presumption in favor of awarding each spouse 50% of the marital property does not supersede the trial court's broad equitable power to distribute marital property, regardless of who holds title.  Bradford v. Bradford, 993 P.2d 887, 893-94, Utah.App.,1999.

There is no fixed formula in divorce proceedings upon which to determine division of properties; it is prerogative of court to make whatever disposition of property as it deems fair, equitable, and necessary for protection and welfare of parties.  In division of marital property in divorce proceeding, trial judge has wide discretion, and his findings will not be disturbed unless record indicates abuse thereof.  Fletcher v. Fletcher, 615 P.2d 1218, 1222, Utah,1980.

Exact mathematical equality of income is not required when equalizing parties' standard of living as of time of divorce, but sufficient parity to allow both parties to be on equal footing financially as of time of divorce is required.  Howell v. Howell, 806 P.2d 1209, Utah App.,1991.
See Utah Codes § 30-2-5 (Separate debts):

     (1) Neither spouse is personally liable for the separate debts, obligations, or liabilities of the other:
     (a) contracted or incurred before marriage;
     (b) contracted or incurred during marriage, except family expenses as provided in Section 30-2-9;
     (c) contracted or incurred after divorce or an order for separate maintenance under this title, except the spouse is personally liable for that portion of the expenses incurred on behalf of a minor child for reasonable and necessary medical and dental expenses, and other similar necessities as provided in a court order under Section 30-3-5, 30-4-3, or 78-45-7.15, or an administrative order under Section 62A-11-326; or
     (d) ordered by the court to be paid by the other spouse under Section 30-3-5 or 30-4-3 and not in conflict with Section 15-4-6.5 or 15-4-6.7.
     (2) The wages, earnings, property, rents, or other income of one spouse may not be reached by a creditor of the other spouse to satisfy a debt, obligation, or liability of the other spouse, as described under Subsection (1).

Utah Code § 15-4-6.5.   Divorce or separate maintenance of co-obligors:

     (1) On the entering of a decree of divorce or separate maintenance of joint debtors in contract, the claim of a creditor remains unchanged unless otherwise provided by the contract or until a new contract is entered into between the creditor and the debtors individually.
     (2) In addition to the creditor's duties as a secured party under Title 70A, Chapter 9a, Uniform Commercial Code -- Secured Transactions, and the creditor's duties as a trustee or beneficiary of a trust deed under Title 57, Chapter 1, Conveyances, a creditor, who has been notified by service of a copy of a court order under Section 30-3-5 or 30-4-3 that the debtors are divorced or living separately under an order for separate maintenance, and who has been expressly advised of the separate, current addresses of the debtors either by the court order or by other written notice, shall provide to the debtors individually all statements, notices, and other similar correspondence required by law or by the contract.
     (3) (a) Except as provided in Subsection (3)(b), a creditor may continue to make negative credit reports of joint debtors under Section 70C-7-107 and may report the repayment practices or credit history of joint debtors under Title 7, Chapter 14, Credit Information Exchange.
     (b) With respect to a debtor who is not ordered by the court under Sections 30-3-5 or 30-4-3 to make payments on a joint obligation, no negative credit report under Section 70C-7-107, and no report of the debtor's repayment practices or credit history under Title 7, Chapter 14, Credit Information Exchange, may be made regarding the joint obligation after the creditor is served notice of the court's order as required under Subsection (2), unless the creditor has made a demand on the debtor for payment because of the failure to make payments by the other debtor, who is ordered by the court to make the payments.

 

“One thing worse than a divorce is a pending divorce.”
— George Burton

Questions and Answers

	Child support is not considered past due until the first day of the following month.

QUESTION:  What is the minimum number of documents one must file with the Court to obtain a divorce in which children are involved?

a. 6
b. 15
c. 19
d. 24

ANSWER:  19

1. Civil Action Cover Sheet
2. Certificate of Divorce, Dissolution, or Annulment
3. Affidavit of Military Service
4. Order regarding Respondent’s Military Service
5. Petition for Divorce
6. Service Documents (Acceptance of Service, Appearance, Consent and Waiver Summons and Return of Service)
7. Notice of Divorce Education Requirement
8. Petitioner’s Divorce Education Certificate or Affidavit (if video is used.)
9. Copies of the child support obligation worksheet
10. Affidavit of Income Verification and Compliance with the Child Support Guidelines
11. Verification of Income for both parties
12. Most recent pay stub with year to date earnings for both parties
13. Latest Income Tax Return for both parties
14. Most recent pay stub with year to date earnings for both parties
15. Required Location Information Form
16. Child Identification Information Form
17. Findings of Fact and Conclusions of Law
18. Decree of Divorce
19. Notice to Submit for Entry of Decree of Divorce

 

QUESTION:  The minimum total fee for filing a complaint for divorce, if you are the petitioner, is:

1. $40
2. $82
3. $155
4. $157

ANSWER:  $157.

QUESTION:  The fee for filing a complaint for a motion for temporary separation order filed under § 30-3-4.5 is:

ANSWER:  $25.

BONUS QUESTION:  What is a motion for temporary separation order?

ANSWER:  § 30-3-4.5. Motion for Temporary Separation Order
  
     (1) A petitioner may file an action for a temporary separation order without filing a petition for divorce by filing a petition for temporary separation and motion for temporary orders if:
     (a) the petitioner is lawfully married to the respondent; and
     (b) both parties are residents of the state for at least 90 days prior to the date of filing.
     (2) The temporary orders are valid for one year from the date of the hearing, or until one of the following occurs:
     (a) a petition for divorce is filed and consolidated with the petition for temporary separation; or
     (b) the case is dismissed.
     (3) If a petition for divorce is filed and consolidated with the petition for temporary separation, orders entered in the temporary separation shall continue in the consolidated case.
     (4) Both parties shall attend the divorce orientation course described in Section 30-3-11.4 within 60 days of the filing of the petition, for petitioner, and within 45 days of being served, for respondent.
     (5) Service shall be made upon respondent, together with a 20-day summons, in accordance with the rules of civil procedure.
     (6) The fee for filing the petition for temporary separation orders shall be $25. If either party files a petition for divorce within one year from the date of filing the petition for temporary separation, the $25 shall be credited towards the filing fee for the divorce.

 

QUESTION:  The fee for filing a counter petition for divorce is:

ANSWER:  $85.

 

QUESTION:  The fee for filing a petition or counter-petition to modify a decree of divorce is:
 
ANSWER:  $40.

 

QUESTION:  The fee for a petition to open a sealed record is:

ANSWER:  $25.

 

BONUS QUESTION:  Why would a divorce practitioner care about the fee for a petition to open a sealed record?

ANSWER:  § 30-3-4.   Pleadings -- Decree -- Use of affidavit -- Private records.

     (2) (a) A party to an action brought under this title or to an action under Title 78, Chapter 45, Uniform Civil Liability for Support Act, Title 78, Chapter 45c, Utah Uniform Child Custody Jurisdiction and Enforcement Act, Title 78, Chapter 45f, Uniform Interstate Family Support Act, Title 78, Chapter 45g, Utah Uniform Parentage Act, or to an action to modify or enforce a judgment in the action may file a motion to have the file other than the final judgment, order, or decree classified as private.

     (b) If the court finds that there are substantial interests favoring restricting access that clearly outweigh the interests favoring access, the court may classify the file, or any part thereof other than the final order, judgment, or decree, as private. An order classifying part of the file as private does not apply to subsequent filings.

     (c) The record is private until the judge determines it is possible to release the record without prejudice to the interests that justified the closure. Any interested person may petition the court to permit access to a record classified as private under this section. The petition shall be served on the parties to the closure order.
§ 78-7-35. Civil fees of the courts of record.
     (1) (b) The fee for filing a complaint or petition is:
* * * * *
     (iv) $155 if the petition is filed under Title 30, Chapter 3, Divorce, or Title 30, Chapter 4, Separate Maintenance; and
     (v) $25 for a motion for temporary separation order filed under Section 30-3-4.5.    
     (d) The fee for filing a counter claim, cross claim, complaint in intervention, third party complaint, or other claim for relief against an existing or joined party other than the original complaint or petition is:
* * * * *
     (iv) $85 if the original petition is filed under Title 30, Chapter 3, Divorce, or Title 30, Chapter 4, Separate Maintenance.
* * * * *
     (p) The fee for filing a petition or counter-petition to modify a decree of divorce is $40.
* * * * *
     (u) The fee for a petition to open a sealed record is $25.
* * * * *
     (w) (i) The fee for a petition for authorization for a minor to marry required by Section 30-1-9 is $5.
     (ii) The fee for a petition for emancipation of a minor provided in Title 78, Chapter 3a, Part 10, Emancipation, is $50.
     (x) The fee for a certificate issued under Section 26-2-25 is $2.
     (y) The fee for a certified copy of a document is $4 per document plus 50 cents per page.
     (z) The fee for an exemplified copy of a document is $6 per document plus 50 cents per page.

 

Utah Rules of Civil Procedure - Part XII - Family Law:  Rules 100 through 107

 

QUESTION:  True or False?      

Rule 101 (Motion practice before court commissioners) is Family Law’s specialized version of Rule 7 of the Utah Rules of Civil Procedure.

ANSWER:  Both True and False.

 

QUESTION:  True or False?       

Unlike Rule 7, no notice to submit for decision need be filed on an uncontested motion before a domestic relations commissioner.

ANSWER:  Trick question:  There is no provision for submitting an uncontested motion before a domestic relations commissioner for decision.

In fact, there is no provision for submitting any motion, uncontested or otherwise, for decision, if it’s before a domestic relations commissioner.

101(b) Time to file and serve.
The moving party shall obtain a hearing date and time.
That’s right.  EVERY SINGLE MOTION BEFORE A COMMISSIONER MUST BE SET FOR A HEARING – NO EXCEPTIONS (believe me, I’ve tried).

A hearing on a motion before a commissioner must be set for hearing no less than 30 days from the date the motion is:

1. Dated
2. Filed
3. Served
4. None of the above

ANSWER:  Another trick question.  There is no rule providing a deadline by which a hearing must be scheduled.

 

QUESTION:  True or False?      

If service is more than 90 days after the date of entry of the most recent appealable order, service may
not be made through counsel.

ANSWER:  True.
101(b).  The moving party shall serve the responding party with the motion and attachments and notice of the hearing at least 14 calendar days before the hearing.  The responding party shall file and serve the moving party with a response and attachments at least 5 business days before the hearing.

With these rules in mind, QUESTION:  True or False?      

The moving party may file and serve the responding party with a reply and attachments at least 3 business days before the hearing.

ANSWER:  True (and believe me, plenty of attorneys wait till the last possible moment to file to maximize the “gotcha” effect).

 

QUESTION:  True or False?  

Parties may deliver to the court commissioner a courtesy copy of all papers filed, if the commissioner permits.

ANSWER:  False.   Parties shall deliver to the court commissioner a courtesy copy of all papers filed.  See Rule 101(e).

Bonus:  The courtesy copy shall state the name of the court commissioner and the date and time of the hearing.

More bonus:

101(g) Counter motion. Opposing a motion is not sufficient to grant relief to the responding party.
An application for an order may be raised by counter motion, but any counter motion must be filed and served with the response.

101(h) Limit on hearing. The court commissioner shall not hold a hearing on a motion before the deadline for an appearance by the respondent under Rule 12.

101(i) Limit on order to show cause. The court shall issue an order to show cause only upon motion supported by affidavit or other evidence sufficient to show probable cause to believe a party has violated a court order.

- the days of the “almost anything goes” order to show cause are, thankfully, over now.

- Note that one can file a motion for order to show cause without seeking contempt sanctions under special circumstances.  See § 30-3-15.3 (Commissioners – Powers):

Commissioners shall:
* * * * *
     (3) serve as judge pro tempore, master or referee on:
     (b) with the written consent of the parties:
     (i) orders to show cause where no contempt is alleged;

           
101(j) Motions to judge.

 

QUESTION:  Which of the following motions must be to the judge to whom the case is assigned:

1. motion for alternative service;
2. motion to waive 90-day waiting period;
3. motion to waive divorce education class;
4. motion for entry of default judgment;
5. motion for leave to withdraw after a case has been certified as ready for trial; and
6. motions in limine.

 

ANSWER:  All of the above.

Bonus:  A court may provide that other motions be to the judge . . . but don’t count on it.

 

Rule 102. Motion and order for payment of costs and fees.

102(a) In an action under Utah Code Section 30-3-3(1), either party may move the court for an order requiring the other party to provide costs, attorney fees, and witness fees, including expert witness fees, to enable the moving party to prosecute or defend the action. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amount requested.

 

QUESTION:  The motion may include a request for costs or fees incurred:

1. prior to the commencement of the action
2. during the action
3. after entry of judgment for the costs of enforcement of the judgment.

ANSWER:  All of the above.

BONUS QUESTION:

102(d) The order shall specify the costs and fees to be paid within:
 

1. 30 days of entry of the order
2. 60 days of entry of the order
3. 90 days of entry of the order

ANSWER:  30 days of entry of the order

See also § 30-3-3. Award of costs, attorney and witness fees -- Temporary alimony.

Rule 103. Child support worksheets.

103(a) When filing a child support worksheet required by Utah Code Section 78-45-7.3, a party shall:

1. file the worksheet in duplicate and the clerk of court shall send one copy to the Administrative Office of the Courts
2. file one worksheet with the court, send the information on the worksheet electronically to the Administrative Office and so indicate on the worksheet.

 

ANSWER:  Either option is acceptable under Rule 103.

Bonus:  103(b) The court shall not enter the final decree of divorce, final order of modification, or final decree of paternity until the completed worksheet is filed.

 

QUESTION:  True or False?  

A decree of divorce may not be granted upon default or otherwise except upon the taking evidence by hearing.

ANSWER:  False.

Rule 104. Divorce decree upon affidavit.  A party in a divorce case may apply for entry of a decree without a hearing in cases in which the opposing party fails to make a timely appearance after service of process or other appropriate notice, waives notice, stipulates to the withdrawal of the answer, or stipulates to the entry of the decree or entry of default. An affidavit in support of the decree shall accompany the application. The affidavit shall contain evidence sufficient to support necessary findings of fact and a final judgment.

 

Rule 106. Modification of divorce decrees - Temporary orders.
 
The judgment, order or decree sought to be modified remains in effect during the pendency of the petition.

 

QUESTION:  During the pendency of a petition to modify, the court:

- may order a temporary modification of child support as part of a temporary modification of custody or parent-time; and

- may order a temporary modification of custody or parent-time, but only:
 

1. upon proof of an immediate and irreparable harm
2. to ratify changes made by the parties, provided that the modification serves the best interests of the child
3. to recognize in the form of a court order de facto changes in custody or parent-time that have arisen since entry of the most recent appealable order

ANSWER:  Both A and B.

 

QUESTION:  What is the proper title for the initial divorce pleading?

ANSWER:  Technically, you file a “complaint,” not a petition (See § 30-3-4 (1)(a): “The complaint shall be in writing and signed by the petitioner or petitioner's attorney.”).

            - I have yet to see a court reject a “Petition for Divorce”

            - Note that, curiously, the law describes a “complaint” to be filed by the “petitioner”

§ 30-3-1.   Procedure -- Residence -- Grounds.

 

QUESTION:  True or False?  

The court may decree a dissolution of the marriage contract between the petitioner and respondent in all cases where the petitioner or respondent has been an actual and bona fide resident of this state for three months next prior to the commencement of the action.

ANSWER:  False.

The court may decree a dissolution of the marriage contract between the petitioner and respondent in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought for three months next prior to the commencement of the action.

Which of the following are not a recognized ground for divorce in Utah:

     (a) impotency of the respondent at the time of marriage;
     (b) adultery committed by the respondent subsequent to marriage;
     (c) willful desertion of the petitioner by the respondent for more than one year;
     (d) willful neglect of the respondent to provide for the petitioner the common necessaries of life;
     (e) habitual drunkenness of the respondent;
     (f) commission of a felony;
     (g) conviction of the respondent for a felony;
     (h) fraud in procuring the promise to marry;
     (i) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
     (j) abuse and/or neglect of children born to the parties;
     (k) irreconcilable differences of the marriage;
     (l) incurable insanity; or
     (m) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation;

     (n) respondent’s engagement in bigamy or other polygamous relationship, whether prior or subsequent to marriage.

ANSWER: 

     - commission of a felony;
     - fraud in procuring the promise to marry;
     - abuse and/or neglect of children born to the parties;
     - respondent’s engagement in bigamy or other polygamous relationship, whether prior or subsequent to marriage.

 

§ 30-3-4.   Pleadings -- Findings -- Decree -- Use of affidavit -- Private records.

 

QUESTION:  True or False?  

If the petitioner and the respondent have a child or children, a decree of divorce may not be granted until both parties have attended the mandatory course described in Section 30-3-11.3, and have presented a certificate of course completion to the court.

ANSWER:  False. 

     (c) If the petitioner and the respondent have a child or children, a decree of divorce may not be granted until both parties have attended the mandatory course described in Section 30-3-11.3, and have presented a certificate of course completion to the court. The court may waive this requirement, on its own motion or on the motion of one of the parties, if it determines course attendance and completion are not necessary, appropriate, feasible, or in the best interest of the parties.

 

QUESTION:  True or False?  

A party to an action brought under title 30 may file a motion to have the file other than the final judgment, order, or decree classified as private.

ANSWER:  True.

 

QUESTION:  True or False?  
  
A petitioner may file an action for a temporary separation order without filing a petition for divorce by filing a petition for temporary separation and motion for temporary orders.

ANSWER:  True.

§ 30-3-4.5. Motion for Temporary Separation Order
   
  (1) A petitioner may file an action for a temporary separation order without filing a petition for divorce by filing a petition for temporary separation and motion for temporary orders if:
     (a) the petitioner is lawfully married to the respondent; and
     (b) both parties are residents of the state for at least 90 days prior to the date of filing.
     (2) The temporary orders are valid for one year from the date of the hearing, or until one of the following occurs:
     (a) a petition for divorce is filed and consolidated with the petition for temporary separation; or
     (b) the case is dismissed.
     (3) If a petition for divorce is filed and consolidated with the petition for temporary separation, orders entered in the temporary separation shall continue in the consolidated case.
     (4) Both parties shall attend the divorce orientation course described in Section 30-3-11.4 within 60 days of the filing of the petition, for petitioner, and within 45 days of being served, for respondent.
     (5) Service shall be made upon respondent, together with a 20-day summons, in accordance with the rules of civil procedure.
     (6) The fee for filing the petition for temporary separation orders shall be $25. If either party files a petition for divorce within one year from the date of filing the petition for temporary separation, the $25 shall be credited towards the filing fee for the divorce.

QUESTION:  What’s wrong with the following clause?:

The court shall include the following in every decree of divorce, if coverage is or becomes available a reasonable cost through a parent’s employment, an order requiring the purchase and maintenance of appropriate health, hospital, and dental care insurance for the dependent children.

ANSWER:  See § 30-3-5(1)(b):

(b) if coverage is or becomes available at a reasonable cost , an order requiring the purchase and maintenance of appropriate health, hospital, and dental care insurance for the dependent children;

QUESTION:  True or False?  

The court shall include in every decree of divorce provisions for income withholding in accordance with Title 62A, Chapter 11, Office of Recovery Services.

ANSWER:  True, even if the parties stipulate for the payment of child support directly to the obligee. See § 30-3-5(1)(d) and § 30-3-5.1. 

 

QUESTION:  True or False?  

Grandparents can be awarded visitation rights in a divorce action.

ANSWER:  True.  See § 30-3-5(5)(a):

In determining parent-time rights of parents and visitation rights of grandparents and other members of the immediate family, the court shall consider the best interest of the child.  (See Utah Code Title 30, Chapter 5 for grandparent visitation rights.)

 

QUESTION:  True or False?  

The court may include in an order establishing a parent-time or visitation schedule a provision authorizing any peace officer to enforce a court-ordered parent-time or visitation schedule entered under this chapter.

ANSWER:  True.  See § 30-3-5(5)(b):    

(b) Upon a specific finding by the court of the need for peace officer enforcement, the court may include in an order establishing a parent-time or visitation schedule a provision, among other things, authorizing any peace officer to enforce a court-ordered parent-time or visitation schedule entered under this chapter.

Rhetorical question:   Can law enforcement officers currently be counted on to enforce such provisions?

 

QUESTION:  True or False?  

If a petition for modification of child custody or parent-time provisions of a court order is made and denied, the court shall order the petitioner to pay the reasonable attorneys' fees expended by the prevailing party in that action, if the court determines that the petition was without merit and not asserted or defended against in good faith.

ANSWER:  True.  See § 30-3-5(6).

 

QUESTION:  True or False?  

In determining alimony, whether the would-be recipient spouse has custody of minor children requiring support is a factor the court must consider.
ANSWER:  Believe it or not . . . True.  See § 30-3-5(8)(a).

     (8) (a) The court shall consider at least the following factors in determining alimony:
     (i) the financial condition and needs of the recipient spouse;
     (ii) the recipient's earning capacity or ability to produce income;
     (iii) the ability of the payor spouse to provide support;
     (iv) the length of the marriage;
     (v) whether the recipient spouse has custody of minor children requiring support;
     (vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and
     (vii) 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.

 

QUESTION:  True or False?  

     The court may consider the fault of the parties in determining alimony.
ANSWER:  True.  See § 30-3-5(8)(b).

BONUS QUESTION:  Must fault have an economic impact to be considered in determining alimony?

 

QUESTION:  True or False?  

The purpose of alimony is to equalize the parties' respective standards of living.

ANSWER:  Not necessarily.  See § 30-3-5(8)(d):

     (d) The court may, under appropriate circumstances, attempt to equalize the parties' respective standards of living.

 

QUESTION:  True or False?  

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.

ANSWER:  Both true and false.  See § 30-3-5 (8)(g)(ii):

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.

And I won’t keep in you suspense on this next topic:

§ 30-3-5 (8)(g)(iii):

     (iii) In determining alimony, the income of any subsequent spouse of the payor may not be considered, except as provided in this Subsection (8).
     (A) The court may consider the subsequent spouse's financial ability to share living expenses.
     (B) The court may consider the income of a subsequent spouse if the court finds that the payor's improper conduct justifies that consideration.

 

QUESTION:  True or False?     

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.

ANSWER:  True.  See § 30-3-5(9)

 

QUESTION:  What’s wrong with the following clause:

When, in any divorce proceeding or upon a request for modification of a divorce decree, an allegation of child abuse or child sexual abuse is made, implicating either party, the court, after making an inquiry, shallorder that an investigation be conducted by the Division of Child and Family Services within the Department of Human Services.

ANSWER:  See § 30-3-5.2:  Allegations of child abuse or child sexual abuse -- Investigation.

     When, in any divorce proceeding or upon a request for modification of a divorce decree, an allegation of child abuse or child sexual abuse is made, implicating either party, the court, after making an inquiry, may order that an investigation be conducted by the Division of Child and Family Services within the Department of Human Services in accordance with Title 62A, Chapter 4a.

 

QUESTION:  When does a decree of divorce become absolute?

(a) on the date it is signed by the court and entered by the clerk in the register of actions;
(b) if both the parties who have a child or children have completed attendance at the mandatory course for divorcing parents as provided in Section 30-3-11.3;
(c) at the expiration of a period of time the court may specifically designate;
(d) when the court, before the decree becomes absolute, for sufficient cause otherwise orders.
  
ANSWER:  All of the above.  See also § 30-3-8

§ 30-3-8.   Remarriage -- When unlawful.

     Neither party to a divorce proceeding which dissolves their marriage by decree may marry any person other than the spouse from whom the divorce was granted until it becomes absolute. If an appeal is taken, the divorce is not absolute until after affirmance of the decree. (as amended by 1988)

Note:  A divorced person is not necessarily free to re-marry as of the date the decree is executed. An appeal filed within the provided period would render a remarriage void pursuant to §§ 30-1-2 and 30-3-8.

 

§ 30-3-10.   Custody of children in case of separation or divorce -- Custody consideration.

 

QUESTION:  True or False?  

The children may not be required by either party to testify.

ANSWER:  Both true and false (although for virtually all practical purposes, true).  See § 30-3-10(1)(c):
“The children may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the children be heard and there is no other reasonable method to present their testimony.”

 

QUESTION:  At what age can a child choose which parent may have physical custody of the child?

1. 12
2. 14
3. 16

ANSWER:  None of the above

     § 30-3-10.  (d) The court may inquire of the children and take into consideration the children's desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children's custody or parent-time otherwise. The desires of a child 16 years of age or older shall be given added weight, but is not the single controlling factor.

QUESTION:  True or False?  

Utah law establishes neither a preference nor a presumption for or against joint legal custody or joint physical custody.

ANSWER:  True.  See § 30-3-10(5)

 

QUSTION:  Where is the rule of court governing custody evaluations found?

ANSWER:  Utah Rules of Judicial Administration, Rule 4-903. Uniform custody evaluations.

 

QUESTION:  True or False?  

The purpose of the custody evaluation is to provide the court with information it can use to make decisions regarding custody and parenting time arrangements that are in the child’s best interest.

ANSWER:  True.  See Utah Rules of Judicial Administration, Rule 4-903(5).

 

QUESTION:  True or False?  

Conclusions drawn from psychological testing should take into account the inherent stresses associated with divorce and custody disputes.

ANSWER:  True.  Rule 4-903(7).

Advisory Committee Note. The qualifications enumerated in this rule are required for the performance of a custody evaluation. However, if the qualifications are met, a practitioner from another state with a different title will not be barred from performing a custody evaluation.

§ 30-3-10.1.   Definitions -- Joint legal custody -- Joint physical custody.

QUESTION:  Define “joint legal custody.”

ANSWER:  § 30-3-10.1(1)(a):

“Joint legal custody means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified.”

 

QUESTION:  True or false:

"Joint physical custody" means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.

ANSWER:  True.


§ 30-3-10.2.   Joint custody order -- Factors for court determination -- Public assistance.

 

QUESTION:  True or False?  
 
    (1) The court may order joint legal custody if it determines that joint legal custody is in the best interest of the child and:
(a) both parents agree to an order of joint legal custody; or
(b) both parents appear capable of implementing joint legal custody.

ANSWER:  False, nowadays.  This question was based upon an old version of § 30-3-10.2, which previously prohibited a joint legal custody order unless both parents agree to an order of joint legal custody.

The current version of § 30-3-10.2 is as follows:

     (1) The court may order joint legal custody or joint physical custody or both if one or both the parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.

By the way:

§ 30-3-10.3.   Terms of joint legal custody order.

     (1) Unless the court orders otherwise, before a final order of joint legal custody is entered both parties shall attend the mandatory course for divorcing parents, as provided in Section 30-3-11.3, and present a certificate of completion from the course to the court.
     (2) An order of joint legal custody shall provide terms the court determines appropriate, which may include specifying:
     (a) either the county of residence of the child, until altered by further order of the court, or the custodian who has the sole legal right to determine the residence of the child;
     (b) that the parents shall exchange information concerning the health, education, and welfare of the child, and where possible, confer before making decisions concerning any of these areas;
     (c) the rights and duties of each parent regarding the child's present and future physical care, support, and education;
     (d) provisions to minimize disruption of the child's attendance at school and other activities, his daily routine, and his association with friends; and
     (e) as necessary, the remaining parental rights, privileges, duties, and powers to be exercised by the parents solely, concurrently, or jointly.
     (3) The court shall, where possible, include in the order the terms of the parenting plan provided in accordance with Section 30-3-10.8.
     (4) Any parental rights not specifically addressed by the court order may be exercised by the parent having physical custody of the child the majority of the time.
     (5) (a) The appointment of joint legal custodians does not impair or limit the authority of the court