Top Utah Divorce
Questions Men Ask
Men Top Questions
Be warned: I am giving it to you straight here. No fru-fru, touchy feely, emotionally manipulative sales pitches, no “In my capable hands I can work miracles” B.S. You have questions, and I will answer them honestly and to the best of my ability, period.
Q: 1. I want to stay involved in my children's lives.What kind of custody options do I have as a man in Utah?-- Can I get sole custody of my child(ren)? Can I get joint custody of my child(ren)?
In Utah, the term joint physical custody covers a number of situations. The ideal 50/50 split is one such possibility among many. There is some leeway in the amount of time spent with the child to qualify a custody award as “joint custody”:
Utah Code § 30-3-10.1. Definitions -- Joint legal custody -- Joint physical custody. 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 [i.e., 111 overnights or more], 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.
So what are you odds of being awarded sole custody? For the average man, slim to none. Why? You know why (or at least you suspect you know why): judges are biased against men when it comes to awarding child custody. Don’t get angry at the judges (well, don’t get too angry). They really don’t mean to be biased, they just are, and for at least two big reasons:
Unless your wife is a truly unfit parent (i.e., a danger to the children), sole custody for men just isn’t a realistic possibility in today’s world. What do you need to show to prove your wife is unfit? Plenty:
“Unfit” is not defined in the divorce section of the Utah Code, but it is pretty well defined in the section of the Utah Code devoted to the ever popular subject of termination of parental rights:
Utah Code § 78A-6-508. (Evidence of grounds for termination).
(2) In determining whether a parent or parents are unfit or have neglected a child the court shall consider, but is not limited to, the following circumstances, conduct, or conditions:
(a) emotional illness, mental illness, or mental deficiency of the parent that renders the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time; (b) conduct toward a child of a physically, emotionally, or sexually cruel or abusive nature; (c) habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child; (d) repeated or continuous failure to provide the child with adequate food, clothing, shelter, education, or other care necessary for the child's physical, mental, and emotional health and development by a parent or parents who are capable of providing that care; (e) whether the parent is incarcerated as a result of conviction of a felony, and the sentence is of such length that the child will be deprived of a normal home for more than one year; or (f) a history of violent behavior.
(3) A parent who, legitimately practicing the parent's religious beliefs, does not provide specified medical treatment for a child is not, for that reason alone, a negligent or unfit parent. (4) (a) Notwithstanding Subsection (2), a parent may not be considered neglectful or unfit because of a health care decision made for a child by the child's parent unless the state or other party to the proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed.
* * * * *
(6) The following circumstances constitute prima facie evidence of unfitness:
(a) sexual abuse, sexual exploitation, injury, or death of a sibling of the child, or of any child, due to known or substantiated abuse or neglect by the parent or parents;
(b) conviction of a crime, if the facts surrounding the crime are of such a nature as to indicate the unfitness of the parent to provide adequate care to the extent necessary for the child's physical, mental, or emotional health and development;
(c) a single incident of life-threatening or gravely disabling injury to or disfigurement of the child;
(d) the parent has committed, aided, abetted, attempted, conspired, or solicited to commit murder or manslaughter of a child or child abuse homicide; or
(e) the parent intentionally, knowingly, or recklessly causes the death of another parent of the child, without legal justification.
As you can see, the bar is pretty high for proving parental unfitness. Don’t expect to get very far seeking sole custody by claiming parental unfitness without solid evidence (and please, don’t trump up a bunch of hysterical claims of abuse or neglect just to gain an unfair advantage—getting a court to believe a woman is a bad mommy is nigh unto impossible, so unless you truly have the goods on your wife, don’t waste your time on a claiming your wife is an unfit parent).
Frankly, sole custody for either parent when the children have two good and loving parents is a bad idea anyway. Children need the regular presence of both of their parents in their lives.
Joint physical custody is often seen as an uphill battle for men too, but that hasn’t been my experience. Yes, joint physical custody is still not a popular idea among most judges, but joint physical custody is gaining in acceptance and popularity.
Child Custody Award and its Effect on the Child Support Award.
You've probably already heard that joint physical custody of your child(ren) means a lower child support obligation on your part. This is not a good reason to seek joint physical custody for two main reasons:
1. Do you know what child is? Do you think it’s money you “have to pay your wife”? No, it’s money that you pay to you wife to help her take care of the children. The more time the kids spend in mom’s care, the more money she needs. So any savings from child support you don’t pay to your wife should be spent on the children when they are in your care anyway, negating any monetary benefits;
2. Joint custody can be hard to manage, so if you think you’d gladly save a few bucks by having to spend more taking care of the kids, don’t complain—you have your reward. The Utah Code already grants statutory parent time to you, even if you are not the sole physical custodian of the child(ren). It's a greatly reduced amount of time with your children, but seek joint physical custody if you cannot exercise it.
But should you avoid seeking joint physical custody? No way! The research overwhelmingly shows that joint custody is generally better for the children than sole custody. Joint custody is difficult to implement, make no mistake about it, it’s difficult for married parents (let alone divorced parents) to cooperate with each other when it comes to making decisions for and rearing the children. But having a mother and a father is generally far better for the child than limited time with one parent.
The reason to fight for joint physical custody is that you want to spend at least 31% of the year as the primary care giver for your children. You still need to be realistic. If you are a long-haul truck driver, pilot, traveling businessman, or work a job with a wildly fluctuating schedule, the court is not going to award joint physical custody. If you live a prohibitive distance from your spouse, such that transportation costs for the children are going to be unmanageable, joint custody isn't going to work.
If you are able to make joint custody work, and you want to seek joint custody, I will fight tooth and nail to get it for you and your child(ren)—so long as you are willing to pay the costs of the fight. Many women going through divorce seek sole physical custody of the child(ren), and I have a great deal of experience successfully seeking—and getting—joint physical custody for my clients.
I've decided I want to seek joint physical custody, what kind of hurdles am I going to face?
Before analyzing the different tools clients can utilize to determine child custody when the parties cannot come to an agreement outside of court resources, let me lay out the law in regards to child testifying and preferences:
Utah Code § 30-3-10(1)(c-e), Custody Consideration
(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. (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. (e) If interviews with the children are conducted by the court pursuant to Subsection (1)(d), they shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with the children is the only method to ascertain the child's desires regarding custody.
If both parties have abundant money and time, then sure, go for a custody evaluation. Courts will frequently order custody evaluations when parties disagree on child custody (even if there appears to be no legitimate reason to fight over custody). Don’t get me wrong, with unlimited resources and time, I find custody evaluations can be a useful resource. Just expect to pay anywhere between $5,000 and $10,000 and consume half a year’s time to get benefit of the evaluation.
What is the purpose of a custody evaluation? To determine what custody award(s) would serve the best interests of the child. The idea is to make the divorce process as easy as possible for the child, while also determining the child’s preferences and other interests.
To learn more about the nuts and bolts of custody evaluationsin plain English,
- please click here: http://www.utcourts.gov/resources/rules/ucja/ch04/4-903.htm
The other disadvantage of asking for the court to interview the child is that the court will almost never grant the request, even if neither party has the resources for a custody evaluation. Why? I’m really not sure.
Even if the child is older and articulate, courts in Utah generally avoid child interviews like the plague and default to ordering a custody evaluation (they’ll tell it’s because they “need” and expert opinion, but it’s really because they just don’t want the hassle of interviewing the kids). Attorneys who don’t want the truth exposed will argue against court interviews of children by claiming (without a shred of evidence) that court interviews “traumatize” children (as if a 6-month custody evaluation is somehow a day at the beach). That’s B.S., but when courts and attorneys self-servingly exploit child vulnerability as an excuse to avoid court interviews of children, you’re fighting losing battle.
The advantages of asking a competent child who he/she prefers to live with (and the child may say both!) is that the issue is addressed and done, and the parties and kids can move on. The parent who was not picked, if there IS a parent who was not picked, can ease the child’s mind appropriately, suck it up and be a mature adult and face the future. If the child was traumatized (heaven forefend) by discussing his/her feelings about divorce and custody, this won’t be the first time or the last—kids too must learn to live with the consequences of divorce. To suggest a custody evaluation somehow has no adverse consequences is worse than disingenuous.
In those cases that do allow interview of the child, the interview(s) is/are typically conducted by the judge in camera (meaning in the judge’s office, not on the witness stand), with an audio recording made of the interview. This method helps ensure that the child was not coached and that the child’s interview can be admitted as evidence.
I believe custody evaluations are often (not always, but far too often) sought for malicious purposes. One such malicious purpose is exhausting the opposing party’s money and patience.
Usually, the court will order the parents to share the costs of the custody evaluation equally, even if one of the parents does not want a custody evaluation. Sometimes the court will order the parent who earns more money to pay for the whole thing. A parent who does not have the resources to pay for the custody evaluation will often then just cave in on custody to avoid being bankrupted. Or sometimes a parent will capitulate on custody just so that the children don’t have to suffer through a 6-month custody evaluation. It’s really insidious, but if the courts are troubled by this, they rarely show it.
Q: How much is this going to cost me?
This is the question I would ask my lawyer, and I know I would be a little frustrated by the answer, but I honestly can't guess at the total cost of your divorce, there are simply too many variables. I know I'm not the cheapest lawyer in Utah, and I'm certainly not the most expensive. I work very hard on every case for every client, every time, and I still sometimes see variations of tens of thousands of dollars between some cases. As we discussed in the first question, custody evaluations can add tremendously to your expenses. Likewise an opposing party who files a lot of motions that we have to answer and fight is going to make the process take longer and be more expensive overall.
If we get the matter settled the first time I call opposing counsel, I will honestly be overjoyed for you, refund any money left unearned in your deposit, and wish you the absolute best of luck. If your spouse claims you are abusing your children, hiding assets, smoking marijuana, committing adultery and running up huge credit card bills, these allegations are going to be things we need to answer in court to keep you from getting hosed, and you're going to see a larger bill. I come prepared to mediation, every time, but I have had both my time and my client's time wasted by opposing parties who didn't take mediation seriously by basically trying to figure the case out for the first time in mediation. I have no way to control such variables.If you're a little let-down by that answer, I completely understand. Let me, instead, answer a question that isn't asked of me often enough:
What can I do to keep my bill down?
There is a simple approach to divorce that can save you thousands of dollars in the long run: BE TRULY REASONABLE! Don’t see your attorney as a hired-gun miracle worker. You can spend $3,000 in attorney's fees to get a car awarded to you that is worth $2,800. You can also dump a lot of money into matters of principle that, irrespective of how hard you or I work on them, are still matters of discretion ultimately left up to the court that we could win or lose.
If you want to save money on divorce, think about your goals early, talk to me about your goals, and be ready to compromise with your spouse on some issues.
If you want to use the court system to settle everything, I will be happy to represent you every step of the way, but be prepared for the increased costs involved. If you can remember to take the long view in this process you will probably not get everything you want, but you will likely be treated fairly and save money.
I don't ever advise my clients to roll over and play dead in the face of unreasonable demands, but I will push you to be honest with yourself, honest with me, and thus to be fair. I will be absolutely candid with you when I think you're trying to pick a fight that you are unlikely to win or should not win.
I will also tell you, honestly, every time I think your expenses are going to outweigh your benefits. I am not in the business of surprising my clients with bills, and I take my job as a counselor very seriously. To that end, I treat my client’s money as if it were my own. I advise my clients to do what I would do for myself if I were in their shoes. If you're wondering about what kind of strategies we can use to save you some money in this process, talk to me! I'm the only one who answers my phone, and I will give you my honest assessment of your chances.
Most people are shocked half to death when they learn how expensive a divorce attorney is. I know this. Really, I do. Before I go any further on the costs of good divorce representation, you should know that I struggle with this question. This very question was put quite well anonymously to a man named David Neagle in his blog, a posting of which I cite here, with the author’s permission:
Help! I don’t seem to be attracting the people who can afford my programs. I have conversations with them, and just by what they are telling me, I know they can’t afford my services. Most of the time I don’t even offer what I know they need because I know they can’t afford it. How can I attract people who can pay for my services?
[H]old on a second…if you don’t ask for the sale, how do you know they can’t afford what they need?
You don’t have a client problem, you have a sales problem, and the answer is simple…
You need to step into being the expert that you are.
Allow me to explain.
Let’s say you have a problem. You’re experiencing chest pain. You rush to the doctor and he runs some tests. He discovers that you need open-heart surgery.
He comes back into the room to tell you his recommendation, but he looks at you and determines that you can’t afford open-heart surgery.
So instead he clips your toenails and sends you on your way.
That doctor has broken a Universal Law. He has taken away your right to choose.
How does that make you feel? Probably not very good, because you’ll have a heart attack without that surgery.
The above scenario isn’t much different than what you’re doing with the people who are coming to you for help.
You are the expert, and the truth is, if their sense of urgency is high enough, the money will be there.
Don’t take away someone’s right to choose what’s best for them because you’ve judged that they can’t afford what they really need.
“Just Believe”,®1 David Neagle
 P.S: The Neagle Code: DIRECTIONS for LIFE is a weekly no-cost program that is open to everyone! Each week, I’ll select and personally respond to one question received via the above “The Neagle Code” page that I feel in my heart will help the most people. (You may choose to remain anonymous if you wish, with our full support.) It is my deep, heartfelt intention that ~ in answering your questions ~ I may provide you with the Universal Truths that in committed application, will set you free. Simply submit YOUR burning question at: www.TheNeagleCode.com to participate.
P.P.S.: May I ask you to help me spread the word about this program? Is there someone you care for who is stuck, or struggling, or lost, or unhappy? Because if so, I would very much like to help. No matter their question, no matter their predicament, no matter if they’ve never heard of me before … if they would like to ask for help via www.TheNeagleCode.com, my Team and I will do our very best to provide that help.
Thanks, David. So in the spirit of stepping into my role of legal expertise and respecting your right to choose, I will tell you about attorney fee and court costs.
Cost is a matter of your perspective and your values. If you have a lot of discretionary income, then $20,000 for a divorce may not be expensive for you. I personally do not have an extra $20,000 to spend as I choose. Like a lot of people, I often don’t even have an extra $2,000 I can spend as I choose or to spend in an emergency. You likely don’t either. If you have difficulty coming up with my retainer of $5,000 and with paying $250 per hour, then divorce will be expensive for you.
Regardless, without hesitation I recommend that both men and women hire an excellent attorney (and notice I did not recommend you hire me—you just need to hire an excellent attorney, I certainly being one of them) to make sure you are not being “worked over” during the divorce process. Still, how much your divorce will cost depends on what you want and do, what your spouse wants and does, and how the opposing attorney behaves.
Good. Fast. Cheap. Pick any two.
The opposing attorney and client are a big, largely uncontrollable factor as to how much money you will spend obtaining a divorce. If:
your options are usually: 1) settle and get less than you believe you are entitled or 2) fight until the court gives you what you want (or your spouse finally agrees) which will often incur substantial fees. The choice is yours. I don’t tell you this to upset you, but there is no alternative. Good. Fast. Cheap. Pick any two.
Here is what youcan do to keep your costs as low as possible without sacrificing quality:
Finally, gentlemen, I trust you will understand completely when I tell you there is nothing more expensive than a cheap tool. While you can remove a bolt with a pair of pliers, or vice grips, or even a pipe wrench, it's difficult, and if you do call in backup with the correct wrench later, it's going to be more difficult to do the job right, and it might by that time be impossible to do it right at all. I do family law, I am the right lawyer for the job (you could call me the right “tool,” but that would get our relationship off on the wrong foot), and though my fees are definitely not a joy, paying me is vastly preferable to finding yourself in the position of trying to get legal counsel to fix a decree of divorce that's already been signed by a judge and is now making your life hell.
I have a lot of experience with divorce in Utah, and that line about writing the book on family law isn't a joke. I follow the changes in the laws of Utah every year and release an updated edition of my Utah Practice Series on Family Law. My firm and I know what we’re doing. I don't bill you to get up to speed on changes in the law, I do that on my own dime. I use your money efficiently and effectively, in your best interests.
Q: How long will this take?
This question, like cost, is full of variables, unfortunately only some of them can be determined by you. There will always be an element of time in divorces that is entirely dependent upon the other party, and some delays can come from the court. Our timeline is secondary to the court's calendar. You get the point, the time can stack up despite our best efforts.
There is good news, however. In Utah, bifurcated divorces are very easy to get, and they can be a good option for your situation if you want to begin moving on with your life. Bifurcation in divorce is a legal method where the marriage is dissolved, but the remaining issues, like distribution of property, alimony, division of responsibility for debt, and child custody are reserved for later.
Just like the total cost of your divorce, while there isn't much I can do about the other party in regards to how much time your case will take, there are some steps that you can do to ensure that the proceeding gets taken care of as quickly as possible.
Be Johnny-on-the-spot with your lawyer.
There is a lot of information that you'll need for a divorce, we're going to have to demonstrate evidence to the court regarding earnings, property values, loans, credit cards, other debts, living expenses, etc. This information can only come from you. I will let you know immediately when I need anything from you, in advance most times. In order to minimize the time your divorce takes, getting back to me right away pays dividends. It's not just evidence and paperwork, I act in your interest, and when there are decisions to be made in your case I will consult with you every time, your prompt attention can shorten the process immensely.
It is a point of practice with me to make sure that your divorce is as pain free as it can be, and that's why I make myself as available as possible. Divorce stinks, but getting in touch with your lawyer shouldn't. You have my mobile phone number, it's listed on the website, right next to the links to email me, Skype me, or instant message me. You shouldn't be waiting days to speak with your lawyer no matter what your question is.
Click here for a flow chart and timeline of the divorce process. You should find it very helpful as an overview of the process (it’s no substitute for “living it,” but it’s the best I can do).
Q: How do I calculate child support? What am I going to have to pay? Will the court help me out with child support as a joint physical custodian of my child?
Child support is going to hinge on how much money you make, how much money your spouse makes, and where the child(ren) spend each night of the year (yeah, really, that’s how child support is determined).
Child support is exactly what the term implies, it is money ordered by the court for the care and needs of the child or children. Because the obligation is to the child(ren), the courts are pretty strict in the calculation of child support obligations, and very, very strict in the enforcement of those obligations.
Here, for example, are the numbers showing the differences between a sole custody child support award an equal-time joint custody award, and a joint custody award where dad gets three nights a week for a couple with three children where the husband grosses $3,600 per month and the wife earns or is imputed minimum wage (i.e., $1,256 per month):
Father’s child support obligation under sole custody award: $989
Father’s child support obligation under 50-50 joint custody award: $333
Father’s child support obligation under 60-40 joint custody award (146 overnights for dad): $737
The easiest way to determine child support is to go through the courts’ website, where you will have both the sole custody and joint custody worksheets available to you to compare them against each other. Fill in the blanks (gross monthly income, number of children, etc.), and the worksheet will show you the support obligations for each parent in sole, joint, and even split custody (split custody arises where primary custody of some children is awarded to one parent, and custody of the other children is awarded to the other parent) situations.
Q: Will I have to pay Alimony? How much? For how Long?
Because of the broad discretion courts have when determining alimony, it is very difficult for an attorney to predict accurately what the alimony award will be. With that in mind, there are some strong factors considered in an alimony award: income of each party, education, and duration of marriage.
Because of the broad discretion courts have when determining alimony, it is very difficult for an attorney to predict accurately whether there will be an alimony award or what the alimony award will be. With that in mind, there are some strong factors considered in an alimony award: income of each party, education, and duration of marriage.
See Utah Code § 30-3-5(8 through 10):
(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.
(b) The court may consider the fault of the parties in determining alimony. (c) As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a). However, the court shall 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.
(d) The court may, under appropriate circumstances, attempt to equalize the parties' respective standards of living.
(e) 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.
(f) 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.
* * * * *
(h) 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.
So, as you can see, whether alimony is awarded generally depends on your ability to pay, your spouse’s need, and to a lesser extent, the duration of the marriage. If you have only been a short time and there are no children, you may not need to pay alimony. Why? Alimony is based on need, and a short marriage (less than three or 4 years or so) is generally considered one of “short duration,” i.e. not long enough to create a “need” or dependency upon the husband financially. There are many possible exceptions to the rule of short duration (medical conditions, young children, couples marrying late in life, etc.), but you get the idea.
On the other hand, if your wife has been a stay-at-home mother for 30+ years, and can’t support herself without having to move from a three-story house into a dumpy apartment, there is a good chance that you will be paying alimony, and rightly so! If you have the ability to pay alimony (and you must have this ability), you will likely have to support her until she no longer has a need.
Most cases fall somewhere in the middle of the two examples above. Some long marriages have little to no alimony awarded because either a spouse can’t pay alimony or both parties can support themselves just fine, and some short marriages have alimony awarded because young children are involved or the other spouse has a great need.
If your spouse is cohabitating with another man, and likely in an intimate relationship with him, your obligation to pay alimony could very well be at its end. See my blog posting Catching the Cohabitating Ex-Spouse Alimony Recipient.
If you would like to see how an alimony award might be calculated based on gross monthly income (not taking into account duration of marriage, special circumstances, etc.), see my blog posting entitled Calculating Alimony in Utah. (although in light of feminism, the equality movement, and the narrowing gap in income between men and women, alimony awards to women are dwindling in size and frequency). Women today are less likely to receive alimony than they would have a generation ago.
By the same token, women are increasingly more likely to be ordered to pay alimony now than ever before. Because the stereotypes are swiftly fading, and the concept that women have the same ability as men do to provide for themselves (although the bias does still exist), many courts—especially those outside of Utah—are expecting women to support themselves after divorce.I give this advice to women all the time. I include it here, even though men don't generally ask me about seeking alimony, because I want you to be aware that it can be a viable option, even in Utah.
I'll let you into another little “secret”; as much as I hate to tell you, in the current cultural climate (2011), if you reside outside of Salt Lake County, your odds of paying alimony are, in my anecdotal opinion, lower than if you reside in Salt Lake County. Believe it or not, counties that you would think are pro-alimony-for-women counties, such as Utah County or Davis County, are more “progressive” on the topic than are courts in Salt Lake County.
Because alimony is such a hot topic I have several blog postings that may provide greater insight into the workings of alimony. If you are interested in Child Support v. Alimony (the differences between these), go to my blog on Child Support versus Alimony.
Q: How will our debt be divided? What's going to happen with my 401k and other retirement benefits?
Division of Debt.
Utah Code § 30-3-5(1(c)) requires that the Decree of Divorce address and divide the parties’ debt:
(1) When a decree of divorce is rendered, the court may include in it equitable orders relating to the children, property, debts or obligations, and parties. The court shall include the following in every decree of divorce:
* * * * *
(c) pursuant to Section 15-4-6.5:
(i) an order specifying which party is responsible for the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage;
(ii) an order requiring the parties to notify respective creditors or obligees, regarding the court's division of debts, obligations, or liabilities and regarding the parties' separate, current addresses; and (iii) provisions for the enforcement of these orders;
How responsibility for debts is divided is a tricky question, as it really depends on where in the divorce process the issue is settled. If the issue is settled by attorney negotiation, the final division of debt may seem arbitrary, as the attorneys will often use debt as a negotiation point for alimony, child custody (regrettably), and other related divorce issues. If the issue of debt proceeds to trial, debt is generally divided “equitably” (which is synonymous with “fairly”) by the court.
For ease of explanation, let’s use a credit card as an example. Say that you and your husband you have a joint credit card account that has a balance of $8,000. Assume you and your husband were both married at the time of incurring the debt, which would mean the debt is likely “marital” debt, not separate debt for only one spouse.
You may be wondering: Who will have to pay off this debt? Will it be the responsibility of the party who made the majority of purchases on the card? Or will it be the spouse who earns more than the other and is thus in a better position to pay?
There are several different options for the apportionment of debt in this situation (and the following list is not an exhaustive list, but a pretty good list of the most likely possibilities, in no particular order):
Retirement benefits (401K, pensions, etc.)
Your spouse is generally entitled to ½ of all retirement benefits earned or accrued during the marriage. If you have a healthy 401k at this point, you're obviously some kind of wizard who doesn't need to worry about money planning, apparently. If you are like most of us in this economy, the recent hit to your retirement account is no good, but there is a silver lining: The total change in your retirement account during the marriage is included in that ½. Your spouse will be entitled to any net gain in your retirement during the marriage, so if you were married during the boom years, your ex may have no claim to retirement assets, as they have only lost money since your marriage.
I do want to give you a word of warning, as a friend and hopefully your lawyer in the future. Hiding assets is playing with fire. The court is not powerless if they think you are hiding the ball or refusing to disclose assets. The outcome of your divorce will be worse for you, the distribution of property will not be fair, it will be painful, and it's not worth the risk. If you're thinking about hiding assets, don't. Think about other areas of your divorce you would be willing to compromise on and we can make a plan for a creative settlement that can hopefully get you most of what you want, but don't get creative with your assets, or with the way you report them.
Q: My wife wants me to move out of the marital home / has locked me out of the home/ we're discussing who should move out. What should I do?
Great question, and a question many men get wrong.
There are two problems with moving out of the house if you're a man. First and foremost, if you have children, this willingness to step out of their day-to-day lives is not going to look good in matters of child custody. Your wife (unless she’s honest and cool under the pressure of impending divorce) will almost surely claim that your voluntary move out—at her request—was an “abandonment” of her and the kiddies. If you haven’t experienced this yet, you likely will. If you have experienced this and were shocked by it, you now have confirmation that I know the divorce game.
Second, if you want a shot at remaining in the marital home when the dust settles, abandoning—er, I mean vacating—the homestead now is not going to help your cause. You've heard the old saying that possession is nine tenths of the law? This is one of those times.
But I have to move out; I can't dodge frying pans forever! She used to pitch softball in college!
You'll remember our discussion about splitting debts, the same thing is going to happen with the marital home, generally. If you and your spouse are living in the family cottage, passed down from generation to generation and you desperately don't want it to be sold (especially in this market) and the equity divided between you and your spouse, you will want to stay in the home.
If your spouse is making it too difficult for you to remain in the marital home, or if you have a compelling reason to get one of you out of the house (such spousal abuse), get the court involved early and get an order. We can approach the court for temporary orders, sending one of you on your merry way by court order, so that way the court has it as a matter of record that you didn't abandon the home, so it can't be held against you. Don't volunteer to move out, don't let her change the locks on you, but if your situation is untenable, a War-of-the-Roses style entrenchment is not your only option.
Q: I don't think mediation is going to work, can we just skip it?/Can’t we just get this whole over with through a quick and dirty mediation?
Utah essentially requires that you engage in mediation before you can go to trial. See Utah Code § 30-3-39 , so you might as well make the most of it. And mediation is generally a good thing. Done right, mediation is faster and less expensive than litigating, and gives you far more control over how your divorce is crafted. To learn about what mediation really is, click here for these blog postings on mediation: ‘
Mediation takes place sometime between being served with the Complaint for divorce and trial. Nearly all cases settle during mediation or negotiations. With that said, just because a case settles does not mean it is settling to your benefit. Come to mediation prepared, understand what is necessary for you to live on, and then what you can “live with.” It is that final category that will provide leeway to negotiate.
Often, mediation requires a certain amount of give-and-take (otherwise, you just head into court and take your chances). It is also a time to be creative. As the husband, you may find that receiving all the equity in the house is worth more than your half of your own 401(k), even though you are legally entitled to keep half. She may be willing to take the cash, the car, and the cat for liquidity and leave you with the house. So many good things can happen in mediation I would strongly urge giving it at least one shot. Want to give up your half of the furniture to keep 100% of your giant, neon, illuminated, signed portrait of Freddie Mercury? Let's ask for it, and maybe get all the issues worked out early in the process, saving you thousands of dollars overall.
If you settled the case during mediation or other negotiations, your attorney (or your husband’s attorney) will draft a settlement agreement based upon your settlement reached in mediation, which both parties must sign. From that settlement agreement, your attorney (or your husband’s attorney) will draft the proposed Findings of Fact and Conclusions of Law and proposed Decree of Divorce, which will mirror the Stipulation and Settlement Agreement. Once the opposing attorney has signed the proposed Findings of Fact and Conclusions of Law and proposed Decree of Divorce, he/she will submit the documents to be signed entered by the court.
Q: Another thing I'm often asked is: Can I skip the Divorce Education Classes?
No. Really, no. While technically you can avoid the divorce education and orientation classes if you file a motion with the court and if the court grants the motion, that never happens. It's not worth your time to fight it; this is the equivalent of eating your divorce vegetables and you will sit at this table until you have finished, young man.
If you have children under the age of 18 you will be doing the divorce education classes. They are not that difficult to sign up for, and they are held regularly. Check here http://www.utcourts.gov/specproj/dived.htm to get your hands on the info, and believe me when I say I wish this requirement didn't exist. I would like to help you get out of it, but you will be attending these classes.
Q: I'm being accused of abuse. What do I do? / How can I prove my wife's drug /alcohol/child abuse to the courts?
Don't give up! I cannot stress this enough. You hang in there, buddy.
Accusing fathers of physical and even sexual abuse of children is a popular, time-tested dirty trick used to gain leverage in divorces. It's wrong, it's dangerous, and it can ruin your life if you let it.
And women who accuse their husbands falsely of child abuse do it with impunity. I’ve successfully defended men accused of child abuse, and once the dust settles, he nurses his gaping wounds, and asked the court to punish his evil-doing, lying wife, the courts and the police shrug their shoulders. The way they see it, all’s well that ends well, and it was better to put Dad through the wringer and through hell to “be safe and certain” that no abuse was taking place. I am not aware of a single instance in modern memory where a wife who falsely accused her husband of child abuse was ever seriously punished.
Knowing this, women who do falsely accuse their husbands of child abuse do so because they really have nothing to lose. If the court believes them (and trust me, it doesn’t take much to get a court to “err on the side of caution” or take the “better safe than sorry” approach and believe allegations of child abuse), they get a huge, cheap boost in their case for child custody (once you get accused of child abuse, your wife can bring to bear the full and entire force of law against you: DCFS (the Division of Child and Family Services) can interview your children without your knowledge; the police get called in to investigate you and potentially charge you with crimes; the court must appoint a special lawyer just for the child who is known as a guardian ad litem—it’s crazy). If the court does not believe them, big whoop; the case goes on as if nothing evil and fraudulent was perpetrated.
If you're being accused of anything by your spouse, get serious about representation and let me help you fight it. DO NOT BELIEVE FOR ONE SECOND that you will be treated as innocent until proven guilty. You will not. In fact, you will be treated as guilty until you somehow prove you didn’t abuse your children (and how do you get “proof” that something was not done? It’s called proving a negative and it is almost impossible, a fact that malicious wives also use to their advantage). Just because your spouse may be playing dirty does not mean you need to give up or run scared. Please, do not think that you can defend yourself successfully without a knowledgeable and committed lawyer’s help.
Q: What can we do about these temporary orders? How can I make life a little more livable in the short term before we have our decree of divorce?
Step one is always going to be: comply, comply, comply. Ridiculous drop off/pick up times for your parent time? Comply. Child support award painfully expensive? Comply. You've been ordered to take a drug and alcohol screening test every week like a common criminal even though you've never smoked and haven't seen the inside of a bar since the 1980's? Comply.
We will get to step two literally as fast as we can, and step two is petitioning the court for a modification of temporary orders. There is no currency that spends as well in front of a judge as respectful obedience to that judge's orders. If you are struggling through your divorce, don't try to take the law into your own hands, if you missed one of your two days a week of parent time because you had to work suddenly, do not keep the child for an extra day without getting permission in writing from the opposing party. I will help you in any way that I can to better your situation, but if you want to ruin your life in the short term and the final decree of divorce, all you have to do is disobey an order of the court.
Q: Finally, the question I wish every prospective client asked, but that doesn't get asked enough in Utah: Do you practice divorce and family law exclusively, or are divorces just a part of your practice?
These questions, unfortunately, mostly come from people calling me, unhappy with their current counsel and looking to find someone more competent, more responsive, and more effective.
I know there is a reputation for family law attorney's to be people handling divorces for their friends, or doing family law because they couldn't find something else to do, and I wish I could re-assure you that you are in good hands with any family law lawyer in Utah, but I cannot. There is, unfortunately, an abundance of lousy divorce and family lawyers out there, and many of them somehow inexplicably have a reputation for being good. You can’t be too careful in choosing your lawyer. DO NOT assume that all lawyers are competent and care about delivering value for their fees.
I’ll tell you what many in my profession know but want to keep secret: divorce lawyers tend to be generally among the stupidest, laziest, crookedest attorneys in the profession. Why? Because divorce and family law is not rocket science. You can be a mediocre attorney and still practice family law and make a buck or two.
I don’t practice divorce and family law because I can’t practice anything else; I practice divorce and family law because 1) I can’t stand to see people treated unreasonably and unfairly; and 2) I have a real talent for divorce and family law, so I get great job and personal satisfaction in doing this work successfully.
I am an excellent attorney (I don’t tell you this to brag, but to reassure you). I chose to do family law and I care very much about my practice and each of my clients. It is very important for me to be on top of the laws of Utah. I don't take your case and then research the law on your dime, I keep up with the most recent changes in Utah family law, and I write the practice guide for other attorneys to reference on my own time. When you come to me with a question you get a straight answer, and I'm not interested in backing down to be nice when the law is on our side. I can and will take good care of you.