What divorce does and does not do

What divorce does and does not do.

What divorce does.

There can be no divorce without a marriage. Well, not exactly.[i] Let’s put it this way instead: if you are married, you qualify to get a divorce.

The purpose of divorce is to end marriage and allow the parties to make as much of a clean break from each other as is reasonably possible. Gardner v. Gardner, 748 P.2d 1076 (Utah 1988).

The objectives of the divorce decree are “to make such an arrangement of the property and economic resources of the parties that they will have the best possible opportunity to reconstruct their lives on a happy and useful basis for themselves and their children.” DeRose v. DeRose, 19 Utah 2d 77, 79, 426 P.2d 221, 222 (1967).

So divorce seeks to achieve 3, sometimes 4, legal objectives:

  • it legally dissolves the marriage between you and your spouse—it ends the marriage;
  • it determines:
    1. what is marital vs. separate property and then divides these assets between you and your spouse;
    2. what are marital vs. separate debts and obligations and then divides responsibility between the parties for these debts and obligations;
  • makes orders regarding child custody (both the “physical custody, which is where the child resides, and the “legal custody,” which is the power to decide matters of the child’s health, education, moral and religious upbringing, and general welfare) and parent-time (also called “visitation”); and
  • in some cases a divorce will also result in restraining orders that bar one or both of the parties from carrying out particular speech or actions, especially harming or threatening a party or disparaging a party to the couple’s children.


What divorce does not do.

Divorce does not punish

Remember that the purpose of divorce is to end marriage and allow the parties to make as much of a clean break from each other as is reasonably possible. Gardner v. Gardner, 748 P.2d 1076 (Utah 1988).

Divorce is not:

  • a forum for airing your grievances or “setting the record straight”;
  • designed to punish your spouse for the “wrongs” your spouse has done you. Divorce is more businesslike than that.

The point of divorce is to dissolve the marriage, divide the property and assets fairly between the parties, and divide the debts and obligations fairly between the parties, but not to settle scores. “[T]he purpose of divorce proceedings “should not be to impose punishment on either party.” See Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980); see also Goggin v. Goggin, 2013 UT 16, ¶ 52, 299 P.3d 1079.

Divorce does not leave you unscathed

Divorce leaves most people worse off financially than they were before. If you’re paying alimony and child support, you are going to have less money to spend. If you were financially dependent on your spouse during marriage, your standard of living and lifestyle are going to take a hit, even if you get alimony and/or child support. If you didn’t work outside the home before divorce, or didn’t work full-time, that’s likely going to change. Then add in the cost of a divorce attorney.

Divorce also leads to unexpected, unforeseen losses and disappointments. You realize this as the little things start to overwhelm you: the dryer breaks down and your ex isn’t there to fix it, you start having to do your own laundry, cooking, and housekeeping. You have to start balancing the checkbook and getting the kids to soccer and back. You’ll have less free time. You don’t know what you’ve got until it’s gone is certainly true of the divorce experience.

And even if you divorce to stop your pain and suffering, divorce will leave you with a sense of loss. Divorce takes an emotional toll of its own.

Forewarned is forearmed.

Utah Family Law, LC | | 801-466-9277

[i] An Introduction to Common-Law Marriage (and divorce in a common law marriage setting)

There actually is a way to get a divorce without having been formally married in advance. That’s through the concept of common law marriage.

You may have heard the term “common-law marriage.” What is it?

– common-law marriage. A marriage that takes legal effect, without license or ceremony, when two people capable of marrying live together as husband and wife, intend to be married, and hold themselves out to others as a married couple. If a common-law marriage is established in a state that recognizes such marriages, other states, even those that do not authorize common-law marriage, must give full faith and credit to the marriage. A common-law marriage can be dissolved only by annulment, divorce, or death.

(Source: Black’s Law Dictionary (10th ed. 2014))

With the definition of common-law marriage in mind, here is how a common law marriage is established:

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 shall 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.

Why have such a law?

One reason is that marriage confers certain legal rights, privileges, and benefits that unmarried couples do not receive. As fewer people marry, the question of common law marriage increasingly arises when a long-time cohabiting couple who was not formally married decide to split up, so that issues of child custody, property, and debts and obligations can be decided under Utah marriage and family law.

For example, if an unmarried couple has a child together, the biological fathers is not automatically recognized under the law as the child’s father. If an unmarried couple lived together, with one member of the couple not working and being a full-time homemaker and the other member working outside the home to support them financially, the homemaker has no rights to alimony. Unmarried couples have no rights to inherit from one another. They do not get the same tax, insurance, Social Security and other legal benefits as married couples.

It’s easy to see why one might want to establish a common-law marriage so that he or she can obtain the benefits of being a spouse, even if those benefits come about through seeking a divorce!


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