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Category: Divorce Education and Orientation Courses

How much does a parent have to pay in child support? What is the legally set amount?

Some people believe that child support is the same for all parents. They believe that every parent who is ordered to pay child support pays the same amount of money per child. This is not how child support is calculated in most jurisdictions, and Utah is no exception.

Child support is based upon several factors before it is calculated and ordered:

  • the incomes of both parents;
  • the number of children there are; and
  • the number of overnights that each parent spends with the child or children on an annual basis

Some other factors can affect child support calculations, such as whether a child has special needs, but generally, child support is a factor of parent income and the number of overnights the children spend with each parent. Allow me to explain with this hypothetical example:

John and Jane are the parents of three minor children.

John’s gross monthly income (we use gross monthly income as the income figures for calculating the monthly base child support obligation) is $5,400 per month, and Jane’s monthly gross income is $2,600 per month.

To calculate child support in various custody situations, we are going to utilize the Utah State Office of Recovery Services Child Support Calculator.

If the children spend an equal number of overnights with both parents on an annual basis, then child support looks like this because it is calculated this way under Utah Code § 30-3-35.2[1]:

(2)

(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.

(e)

(i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

Joint Custody P1 – 183 P2 – 182
Joint Custody P1 – 182 P2 – 183

If one parent has the children in his or her custody more or less than on an equal time basis, the calculation looks something like this:

  • I will show what a calculation based upon an unequal physical custody award looks like by calculating child support based upon John spending less than 111 overnights with his children annually)
  • In such a situation, we will treat John as the “noncustodial” parent. “Noncustodial parent” does not mean that John has lost all of his parental rights, but just that he does not have primary physical custody of the children (i.e., that the children are in his care and custody less than 111 overnights annually). Based upon John’s spending less than 111 overnights with the children, the Child Support worksheet would look like this, and would result in John’s child support obligation being as follows:
Sole Custody

And there is yet another way to calculate child support in a “split custody” situation. That’s a situation where, when there are multiple children, some live primarily with one parent and some live primarily with the other (in other words, they don’t spend time all together with one parent at a time).

So, let’s assume in this scenario that two of the children live with John as the custodial parent, and one of the children lives with Jane has the custodial parent of that one child. This is how the child support calculation worksheet would look and what the resulting child support obligations from each parent to the other would be:

Split Custody

As you can see, on a split custody basis, even though each parent has custody of one or more children, it ultimately comes down to one parent’s obligation being offset by what the other parent’s obligation is. This is why John pays $13 to Jane each month, even though Jane’s obligation to John is $355.94 per month because his obligation to Jane is $369.08 per month.

So John’s obligation to Jane of $369.08 per month is reduced by Jane’s $355.94 monthly obligation to John, resulting in a difference of $13.

 

Now, the examples I provided above are not the only ways child custody can be awarded and thus not the only ways that child support can be calculated and awarded, but these examples are the most common that you’ll see. So, now you get an idea of what happens and what the child support calculations and obligations are in these situations.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] This is not truly an equal custody award because one parent is awarded 183 overnights with the children annually. It does not have to be this way, and indeed, I submit it should not be this way. If you are a parent who wants a true equal custody award made, then calculate custody and child support this way:

  • Agree that each parent is awarded 182.5 overnights with the children annually and note that this will result in one parent naturally having the children in his/her care and custody 183 overnights in one year, then 182 overnights in the next year due to the fact that a year consists of (with the exception of leap years, which occur so rarely as to be statistically insignificant) an odd number of days, i.e., 365.
  • Calculate what child support would be for the obligor parent (“obligor” means the one who pays) if a parent had the children in his/her care and custody 183 overnights annually and 182 overnights annually, and then average those two child support obligations to get what the child support obligation is on a 182.5 overnights annually basis.
  • So, in John and Jane Doe’s hypothetical case, that would mean that John’s monthly base child support payment obligation on a 182.5 perfectly equal custody basis would be $287 per month ($272 + #302 = $574. $574 ÷ 2 = $287).
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Divorce and Social Media By Braxton Mounteer

Most people fundamentally misunderstand what the Internet and social media are. Many believe that social media is a web of interconnections where you can send and receive updates about your life or the lives of people you are involved in with those who are connected to you. This is completely true, but not truly complete. Social media is like what happens when groups of people chat around campfires in the dark in close proximity to each other. The sound travels. Every other group can hear what you and your friends are discussing around your campfire. So can the things hiding in the woods.

Another thing that people misunderstand is that what is posted on social media is a nearly permanent record. Every post you make might as well be etched into stone. There will almost always be a record of it somewhere, whether you delete it from your personal account.

What does this have to do with divorce? Your social media activity isn’t a tiny echo chamber of your inner circle or your personal diary. You aren’t screaming into the void. If you air your dirty laundry on social media, there will likely be a permanent record of it, and—for anyone who tries hard enough—for prying eyes and ears to access.

What you do and say online can be used against you. And it likely will be used against you.

You would be best served by keeping your online “mouth” shut. Keep your social media “business as usual,” post the updates about your children’s milestones and major life achievements that you normally would. Post the funny meme. But don’t bash your spouse online. Don’t pour your heart out about your personal vices and demons online. Don’t discuss your divorce or subjects that can affect your divorce online. Some things are better left unsaid.

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First Impressions of Being a Legal Assistant as a Writer By Braxton Mounteer

The first thing you should know is that I am a writer. I have authored some short stories and some other things you haven’t heard of. I have been a Legal Assistant for two days, and I had some expectations when I started. Honestly, my expectations came from courtroom dramas and fiction novels. I was expecting Atticus Finch and the team from Suits. I was expecting other lawyers to be as bloodthirsty as Vlad Tepes.
What I have found is that they exist not as an archetype, but as people. Each one is just a person. Whether they are fighting against the rightfully earned reputation of their profession or living in the shadow of it, they are just people. Some of them work and care for the Law, some for their clients, and some for themselves.
The shows that we watch and books that we read about lawyers and the legal profession prop up personalities to make them larger than life. That is what makes them good stories. However, the best stories are based on a kernel of truth. I endeavor to learn more about the profession and dispel the illusions and mystification surrounding the profession.
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Should more people have to attend court-ordered parenting classes?

Should more people have to attend court-ordered parenting classes?

Generally speaking, no.

For the most part, when you lead a horse to water and try to force him to drink, the results are mediocre at best, disastrous at worst. Good parents don’t need these classes, bad parents don’t pay attention and/or rebel, so they don’t benefit from them.

This is a cure is worse than the disease situation. Having the government force people to do nanny state stuff like attend parenting classes is a terrible idea. At best it’s unenforceable and a ludicrous waste of tax dollars. At worst it heads the government and the people down the road to tyranny.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Should-more-people-have-to-attend-court-ordered-parenting-classes

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Utah Divorce Case Timeline Summary

Utah Divorce Case Timeline Summary

The greatest influence on how long a divorce case takes is usually how much and how severely the parties fight over the issues. The more they fight and the more things they fight over, the longer and more expensive the divorce process is. But here is a general timeline for a Utah divorce, step by step.

Bottom line: Generally speaking, a contested divorce will likely take between 15 months to 24 months. Bitterly contested divorce cases can take many years. An uncontested divorce can take as little as 45-60 days to complete from the date of filing, if the parties agree on everything.

Timeline

What happens first?

  1. Complaint or petition for divorce is filed (“complaint for divorce” and “petition for divorce” are interchangeable terms). The person who files is the “petitioner”.

What happens next?

  1. Your spouse is served with the summons and a copy of the complaint/petition for divorce. Your spouse is the “respondent”.

When?: The respondent has 21 days to file an “answer” to your complaint. Your spouse will likely not only answer your divorce complaint but also counters through you which is known as a counterclaim.

You will then have 21 days to respond to the counterclaim after it is served on you (and if you have an attorney the counterclaim will be sent to your attorney, and your attorney should provide you with a copy of it).

What happens next?

  1. Financial declaration and initial disclosures. After the complaint have been filed with the court and served on your spouse and after the parties have responded to each other’s respective complaint and counterclaim for divorce they have to exchange what are known as financial declarations and initial disclosures.

Financial declaration. The financial declaration requires you to identify

      • Whether you are employed and if so, by whom and what you earn from employment.
      • Other forms of income other than income from a job (unearned income).
      • Monthly expenses
      • Business interests, if you have any
      • Financial Assets. A description of your financial assets
      • Real Estate. Identifying any interests in real estate that you own
      • Personal Property. A description of your personal property, such as vehicles, boats, trailers, major equipment, furniture, jewelry, and collectibles
      • Debts Owed. A list of your debts and obligations, what you owe, and who your creditors are.

Initial Disclosures. Your initial disclosures require you to disclose:

      • each individual likely to have discoverable information supporting your claims or defenses
      • each fact witness you may call at trial
      • a copy of all documents, data compilations, electronically stored information, and tangible things in your possession or control that you may offer at trial
      • a copy of all documents to which you refer in your pleadings

When?: The petitioner must serve her financial declaration and initial disclosures 14 days after the answer is filed (that’s a lot of work in a fairly short time, so don’t dillydally if you’re the petitioner). The respondent is required to serve his financial declaration and initial disclosures 28 days after the answer is filed.

What happens next?

  1. Temporary orders. After the answer and counterclaim have been filed with the court, it is typical for the parties to request what are known as “temporary orders” from the court. Temporary orders are put in place to ensure that the leaves and affairs of the family are maintained during the pendency of the divorce action. So temporary orders can include things like responsibility for the mortgage and other expenses associated with the house and family. They can include temporary orders of child custody and parent time and child support and spousal support. Temporary orders can include other provisions as well, depending upon the circumstances and needs of your family.

When?: You soonest you could file for temporary orders is when you file your petition/complaint for divorce. Most people file after the petition/complaint for divorce is filed.

After the motions are file the court usually schedules a hearing within 1 to 3 months of the date the motion was filed.

What happens next?

  1. Discovery. Discovery is the process By which the parties request documents and other evidence from each other to help them get a better understanding of the issues, and to determine what issues are really disputed and which ones aren’t or can’t be disputed. Discovery is used to help the parties gain a better understanding of the issues and to help each party build its strongest case against the other party.

When?: You are allowed 180 days for discovery. The discovery period starts the day after the last day that initial disclosures and financial declarations are due from the respondent.

If you have children and you and your spouse are fighting over child custody: a custody evaluation may be ordered. A custody evaluation is supposed to take 4 months. They almost always take longer. Sometimes the custody evaluation won’t be completed by the time discovery closes. Be prepared for this possibility.

What happens next?

  1. Divorce Orientation and Education Courses. If the divorcing couple has minor children then divorce orientation and education courses are mandatory for both parties. You can learn about and sign up for those courses using this link: https://www.utcourts.gov/specproj/dived/

When?: You can take the divorce orientation and education courses any time, even before you file for divorce. Most people sign up for and complete the courses around the time after the answer and the reply to counterclaim have been filed and served.

You cannot obtain a decree of divorce without completing the divorce orientation and education courses or having the requirement to attend them waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Mediation. You must go to mediation before the case can go trial. Most divorce actions settle and most settle in mediation. If neither party wants to go to mediation or there are circumstances (such as domestic violence) that would not make mediation feasible or worthwhile, the parties can move to waive the mediation requirement.

When?: You can go to mediation any time, even before you file for divorce, although if you go to mediation before you or your spouse file(s) for divorce the court may make you go to mediation again before you will be allowed to go to trial.

So bear in mind that you can go to mediation at any point in the case.

You cannot obtain a decree of divorce without engaging in mediation or having the mediation requirement waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Trial. If the parties do not settle their case (whether in mediation or on their own), then the case goes to trial.

When?: After discovery has closed (after 180-day discovery period has elapsed), then the case can be certified for trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date. All told, it takes about a year to a year and a half to go from filing for divorce to trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date.

All told, it takes about a year to a year and a half to go from filing for divorce to trial.

What happens next?

  1. After trial, the court will make its decisions as to the issues that were argued over and “tried” in court and then the Decree of Divorce is prepared and the court signs it.

When?: Usually 30 to 60 days after trial.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How can I prepare myself mentally for divorce?

I will answer your question based upon the presumption that you have already gone through the agonizing process of determining that you need to divorce. In other words, I will not treat your question as asking how you determine whether you should divorce.

How to prepare yourself mentally and emotionally for divorce:

1. Talk to people you know and trust who have gone through a divorce themselves, so that you can innoculate yourself somewhat against the ordeal ahead of you.

  • Listen to what they say of their experiences. Pay attention. Believe their stories. Apply them to your own situation.
  • Ask questions (no matter how stupid you fear they may make you look; better to look stupid in the eyes of people who care about you than in the eyes of your spouse or the court).
  • Most divorced people are happy to talk to you about it. They feel good knowing that sharing their tales of divorce misery might help you avoid some of that misery or help you deal better with the misery yourself.

2. Accept that it will get worse before it gets better. Make your peace with this fact. If you go through divorce bemoaning how regularly shocked you are at hard and unfair it is, you’re just wasting your emotional capital.

  • Know (know!) that legal system doesn’t work as well as you believe. Not every attorney is competent or industrious. Not every judge is a silver-haired sage.
  • Even if your jurisdiction has dedicated family courts, your judge is not an expert on all things divorce law (it’s impossible to be). I know that may come as a shock to many of you reading this, but it’s true. If your judge is not a dedicated family court judge, he/she hears all kinds of legal cases, divorce being just one of them, and divorce is a subject judges almost universally hate, so they are not the most enthusiastic about them. And your judge can get jadged–fast–by hearing divorce cases all day every day and can quickly burn out.

3. If you can (and not everyone can), find someone you can confide in, someone who you can trust with your life. You may need to lean on this person for moral support, even possibly financial support.

4. If you’re a believing member of a religion (even if you have some doubts and questions), go to your church services.

  • See if they help you cope.
  • Church services give you messages of direction, correction, truth, and hope. Church can help keep you grounded.
  • Church services and your ministers can help you make sense of the world when divorce turns your world upside down.

5. Find a good therapist that you can use when needed.

  • Not because you’re too weak to handle this on your own (you might be), but because you want to be prepared and know where to get help if divorce strikes a blow you did not anticipate and cannot take. You’ll be glad you took this step in advance.
  • Know that just because you find a good therapist does not mean you must go see the therapist every week. You can see the therapist as needed.

6. Don’t take at face value anything anyone tells you about divorce. Do your homework. Be skeptical.

  • There are too many divorce lawyers, so the competition for clients is fierce. And so some divorce lawyers will tell you whatever they believe you want to hear so that you will give them your money. They will thus give you a warped and rosy picture of divorce, which will lead to you being deceived and fleeced. Buyer beware.
  • Your friends, no matter how well-meaning, generally do not know divorce law or procedure, and if you listen to their legal opinions or take their legal advice, you will, more often than not, be led painfully astray.

7. Be mentally and emotionally prepared to have very little free time between having to juggle the demands of your life and the demands of your divorce.

Your divorce is going to be, at best, a part-time job and at worst a second full-time job. But take heart in remembering it will only be temporary.

8. Think about and determine what really matters to you in your life. Nothing helps distill your values quite like divorce.

Divorce can break you or remake you. Divorce will hurt you, but you’ve been hurt before and you have recovered. You will recover from divorce too, so make sure that when you do you come out with your integrity intact. I used to think making a lot of money was vitally important. I sacrificed a lot in the pursuit of making lots of money. It didn’t happen. I wasted a lot in the pursuit too. I learned the hard way that while having enough money is vitally important, having a lot isn’t. I wouldn’t turn down a lot of money, but it’s not my life’s purpose anymore. I know what matters more. I learned from my greed and mistakes. I’m a better man for it. For what shall it profit a man, if he shall gain the whole world, and lose his own soul? (Mark 8:36 KJV) Don’t let divorce leave you broken and bitter. Divorce may rob you of some things, but don’t let divorce rob you of your decency and vision.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-can-I-prepare-myself-mentally-for-divorce/answer/Eric-Johnson-311

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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 | divorceutah.com | 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!

 

Look, I know you want to believe mediation is the magic pill for divorce but you’re missing a crucial point

Way too many mediators (whether of the collaborative stripe or other persuasion) insinuate that 1) divorce without mediation is doomed to anger and misery; and 2) merely engaging in mediation magically sucks the conflict from the room and opens stunning vistas of creatively, clarity, and cooperation. It’s bunk, but bunk that many cash-strapped, emotionally wrung-out couples lap up in the desperate hope it’s true. Mediators need to be honest: mediation isn’t magic (mediators aren’t either) and it works for people who make it work, period. You’ll get out of mediation as much as you put into it, and even then it’s out of your hands because compromise takes two.

Nobody ever said that divorcing couples must destroy or try to destroy each other. When will the “mediateurs” realize that their P.R. isn’t fooling the public as much as it once did?

Sometimes business partners or a rock band amicably decide to shutter the partnership and go in different directions because they feel it best for each other (thanks a lot, Beatles, although I’m not sure we’d have gotten the gem “Band on the Run” otherwise). Sometimes spouses do the same and divorce without rancor. But not usually, as we divorce lawyers well know.

Whether it’s the end of a marriage, a friendship, a business partnership, an employer-employee relationship, or the end of dozens of other similar relationships, when the relationship sours it’s inevitably because of conflict (great or small) at the heart of the matter.

Utah Family Law, LC | divorceutah.com | 801-466-9277

4 Reasons Divorce Makes Good People Act Like Total Jerks

4 Reasons Divorce Makes Good People Act Like Total Jerks

Don’t let the it get the best of you!

Why is it that people who seemed to be fairly rational before divorce turn into complete paranoid, hyper-defensive maniacs once the separation and divorce process begins? Couples who promised to do this divorce thing respectfully suddenly turn into ferocious warriors, letting their mean-and-petty streak show through, especially when they get into the pit with their attorney.

Sure, some people are just jerks, but what makes otherwise good people behave so poorly? It turns out this “crazy” behavior is fairly predictable and normal in such circumstances. That’s not an excuse for it, but when you better understand what’s pushing your buttons so badly, you can finally begin to make healthier choices and address the feelings of overwhelm that are triggering such unseemly (read: king of the jerks) behavior.

Here are the panic-button pushing reasons that divorce makes us act so out of character:

1. Disappointment Over Unmet Expectations

When you said “I do” you did so with expectations about what marriage is all about. But maybe you never fully shared those expectations with the person you actually said your vows to. Many times we don’t articulate our expectations specifically because we assume everyone just knows this is how marriage is supposed to be. But, “everyone” may only be your family and the way they did things, or your closest friends with whom you have discussed this over and over. It never included your now soon-to-be-ex-spouse who (don’t forget) came into marriage with some unspoken expectations of their own. When our deeply held expectations (like “marriage is forever, no matter what”) are unmet, we often feel betrayed, making it easy to feel indignant and cast our ex as the enemy. We believe they let us down. But, if we’re honest, were they ever fully on page with us to begin with?

The big challenge of marriage is putting both partner’s expectations on the table and then working together to create a mutually agreed upon vision for how your marriage will actually work.

2. The Fear of Change

During periods of immense and drastic change (such as divorce), your mild-mannered brain goes into survival mode, ready at a moment’s notice to fight or retreat, thanks to that reptilian brain you inherited from your ancient ancestors.

Whether is it your fear of losing status (social, financial, etc.), a sense of uncertainty about the future, a worry that you don’t belong anymore in your social circle, or just a feeling like this whole situation is so unfair—the problem-solving part of your brain can’t do it’s job until your panicked reptilian brain calms down.

Uncertainty and fear about how things will turn out take a steep toll on you mentally and physically. Stress from staying in an “I’m in danger” primal mindset can short-circuit your patience, your willingness to listen, and your ability to communicate effectively. Your health is also likely to take a dive as well, making you prone to sleep deprivation and low stamina at a time when you are taking on mountains of critically important paperwork, decisions, and details as part of the divorce. So, even if you want to make good choices, the stress response of facing so much uncertainty and change at once is sure to cause you at least some temporary loss of rational thought and behavior.

3. Feeling Powerless and Out of Control

In normal life, you are used to being competent and in charge, but now you are thrust into the unfamiliar, unsure of how to get things done right in the divorce process (and in the new life waiting after it). You are being forced to make important decisions immediately. You have to hire a high-priced expert to navigate you through the legal aspects. And hiring a lawyer kicks off what could be seen by the other as an attack; you have drawn up sides and are now ready for war.

Communication is out the window when you feel powerless and unable to fully control things that profoundly affect your life. You have to trust your attorney (who was likely a complete stranger to you before this situation) to lead the charge and make decisions that will affect your future (and your childrens’ future) for years to come. It all costs a fortune. Is it any wonder each side feels like they are being screwed?

4. A Sense of Entitlement

Splitting apart all of the property (and associated memories) the two of you acquired through your sweat, equity, and hard-earned money can feel like a spiteful business transaction. Each of you has a sense of ownership and “it wouldn’t have happened without my efforts” point of view. Your decisions right now are dominated by your emotions, not your logical problem-solving self.

If you have kids, there is likely an overwhelming sense of guilt and worry that this divorce experience might be damaging them. They may even think it is their fault that mommy and daddy are splitting up. The kids end up as pawns in a fight over what you and your ex believe you each deserve or never deserved. Each of you are in it to “get yours” in the name of fairness. But the ego battle waging between you both in the pursuit of “emotional justice” ends up feeling more like scrambling down an endless tunnel with no cheese at the end.

So, what’s a stressed out person to do in order to keep divorce-induced jerky behavior in check?

Take back your dignity. Get in touch with who you are when you are at your best. Be clear about what is important to you and why, and how you want to remember yourself when this is over. Now, behave your way into that outcome.

Assemble a good team to support you in this transition from married to single. Identify where you need more information, different perspectives, and validation that will get you through this in a way that lifts you up (versus pulling you down). Pick people who can support you in being your best. Fight the urge to surround yourself with people who will urge you to seek revenge, act petty, or take your ex to the cleaners. When you look in the mirror, you want the best version of you reflecting back as you move into your new future.

Listen, listen, listen. Communicate, communicate, communicate—with your children, with your ex-spouse, and with the experts you are relying on to help you make the best decisions based on your needs, wants and values. Don’t be afraid to acknowledge your role in how things are going. If you misstep and act like a jerk for a moment, own it, and then apologize and move on.

Remember your past successes. Take care of what is important to you, ask for help, and remember the times when you successfully dealt with challenging times in the past. What allowed you to be resilient then? How can that help you here and now? You’ve been through hard times before—you can handle this.

Dealing with a difficult ex certainly doesn’t make the divorce process any easier. But neither does being a difficult ex. So keep yourself in check. By understanding some of the hot buttons that you both are pushing in each other, then maybe you can pause, take a breath, drop the jerk behavior and and make better choices.

*Used by permission from CDC Certified Divorce Coach® Pegotty Cooper and Randall R. Cooper

www.certifieddivorcecoach.com

(813) 455-1134

Utah Family Law, LC | divorceutah.com | 801-466-9277

What if my spouse won’t complete the divorce orientation and education courses?

What if my spouse will not complete the divorce orientation and education courses for parents? Can the judge still grant the divorce?

Yes.

You can file a motion notifying the court that your spouse refuses to take the courses and assert that it is not equitable to deny you a divorce for your spouse’s inaction. You can ask that the court enter the decree of divorce nonetheless, with a provision that your spouse cannot exercise child custody or parent-time unless and until he/she has completed the mandatory courses. See below; the Utah Code provides that the court can waive the course requirements, and your spouse’s refusal to complete the courses is certainly a basis for seeking a waiver (I’ve done it myself for my clients many times):

Utah Code Section 30-3-11.3. Mandatory educational course for divorcing parents — Purpose — Curriculum — Exceptions.

(3) As a prerequisite to receiving a divorce decree, both parties are required to attend a mandatory course on their children’s needs after filing a complaint for divorce and receiving a docket number, unless waived under Section 30-3-4. If that requirement is waived, the court may permit the divorce action to proceed.

Utah Code Section 30-3-11.4. Mandatory orientation course for divorcing parties — Purpose — Curriculum — Exceptions.

(13) Both parties shall attend a divorce orientation course before a divorce decree may be entered, unless waived by the court. A certificate of completion constitutes evidence to the court of course completion by the parties.

Remember: the divorce orientation and education courses are mandated only for divorcing parents of minor children. If you and your spouse have no children or have no minor children, you and your spouse are not required to take the courses.

Sincerely,

Eric K. Johnson,

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Am I required to hire a lawyer for divorce mediation?

Question:

Can I hire an attorney after to review the documents from mediation before I sign anything?

What if I hire an attorney before we meet mediation? Do I have to tell the mediator that I have an attorney?

Will my attorney want to be at mediation?

I’m just trying to figure out what will be the best plan. My husband claims he doesn’t want an attorney. He said if I get an attorney he will get one too. I don’t want this to be a drawn out pissing match. He’s hurt, sad, and angry and I just want things to be fair, yet have my kids and my best interests protected.

Answer:

Yes, you can go to mediation without a lawyer

(and if you do, I would recommend you notify everyone in advance of this; it’s the decent thing to do, and it preserves your credibility).

You do not have to tell the mediator or your spouse that you have an attorney, if you elect to attend mediation without an attorney. The rules for what the Utah Code requires of you for divorce mediation are short and sweet, and you can read them by clicking here.

Sometimes a court will order parties to attend mediation with their attorneys (I don’t see the point in this, as courts really ought not be telling people to mediate with the aid of an attorney when there is no authority for them to do so; technically, a party could, in response to being ordered to bring his/her lawyer, simply fire his lawyer before mediation, go to mediation, and then re-hire his/her lawyer).

Should You Go to Mediation Without an Attorney?

If you choose to attend mediation without an attorney, notify your spouse that you will come to mediation in good faith to discuss and negotiate the issues and reach agreement, but that you will not sign any final, binding agreement unless and until you have reviewed any proposed written settlement agreement with an attorney. If you go to mediation without an attorney, this is the way I’d recommend you do it.

Sometimes when you tell your spouse that you will not sign any final, binding agreement unless and until you have reviewed it with an attorney your spouse your spouse (or even the mediator) may accuse of stalling the mediation process. You may be warned of dire consequences if you don’t sign an agreement reached the day of mediation. Look, any proposed or tentative agreement that can’t survive being slept on is an agreement that would likely never have worked or worked fairly. So have the courage to do as you say.

That stated, I would recommend that you attend mediation with an attorney, as opposed to going to mediation without a lawyer and then planning to review any proposed written settlement agreement with an attorney. Telling your spouse you won’t reach agreement without first taking more time to review a proposed settlement with an attorney can chill the attitude of compromise and settlement.

Your attorney should, in my opinion, want to be at the mediation settlement conference to help you negotiate and negotiate quickly, effectively, and fairly to a settlement.

Your spouse claims he/she doesn’t want an attorney? No surprise there. Nobody really wants a divorce attorney (unless perhaps the attorney is free of charge or considered to be so amazing you’d be a fool not to hire him). My feelings aren’t hurt; attorneys have come to be viewed—accurately—as providing too little value for the money they charge. But this is not true of all attorneys. You can find an attorney whose ROI (return on investment) is well worth it, and that kind of attorney is worth seeking and hiring.

I think people get it all wrong when they see “if you get an attorney, then I will too!” as an antagonistic sentiment. Both parties having good (meaning skilled, knowledgeable, sensible, values and purposes aligned with yours) helps the negotiation process work better, faster, and inexpensively. Both parties make far better informed decisions. Bringing a lawyer to mediation should not have the same effect as would bringing a gun—and if it does, you and your lawyer are doing more harm than good to the settlement process.

Mediations aren’t a time to negotiate by threat, although there is nothing wrong with standing one’s ground and taking the position of “this is my bottom line: if this isn’t acceptable to you, I believe I will do at least this well, if not better, if the case goes to trial.” Just make sure you really mean it; don’t use it as an idle threat because bluffs are easy to call.

If you and/or your spouse see hiring a lawyer as a threat, as a purely defensive move, then you are not wanting a mutual “win” by settlement, you want to “beat” the other in settlement. That is sure to result in anger, frustration, stalemate, wasted time, and wasted money. Think through your objectives. Know what matters to you most. Think through the various ways to achieve your objectives; the more creatively you think the more likely you will be to find a way. Be honest. Be fair. Be flexible. Be realistic. Start with a wish list, then pare it down to what’s likely to happen if you go to trial. A lawyer is essential to that process.

Then prepare a comprehensive settlement proposal well in advance of mediation and send it to you husband or his attorney, if he has one. Negotiation by ambush will likely result in a tremendous waste of time and money, and reduces the efficacy and likelihood of success in mediation and negotiation process.

Utah Family Law, LC | (801) 466-9277 | eric@divorceutah.com

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Is the Martindale-Hubbell AV rating meaningful anymore (for divorce and family law attorneys especially)?

Consulting Martindale-Hubbell for the AV rating certainly can’t hurt a potential client in helping him or her to assess a divorce or family lawyer’s qualifications, skills, and “fit” with you, but Martindale-Hubbell isn’t as important as it used to be simply because it no longer has the lock on the information it used to have in the pre-Internet “information martindale-hubbellglut” age. Now there are many, many attorney rating and information sources and services (such as Avvo, LegalMatch, Yelp, Google reviews, etc.), as well as attorney’s own websites with even more, and more specific, useful information to help you assess an attorney’s strengths, weaknesses, and suitability for your particular needs. The “AV” rating is simply the highest rating you can receive from Martindale-Hubbell, but understand what that means and what it doesn’t. Richard Rubenstein had this to say about Martindale-Hubbell, and I concur with him:

“Lawyers tend to use Martindale-Hubbell to identify out of state lawyers for referrals. I have never had a client admit to using it. I suppose MH is more useful and accurate for [lawyers] because it is peer rating [i.e., lawyers rating other lawyers], instead of client rating. It is largely outmoded, from what I can see, and far from objective.”

So if you have access to Martindale-Hubbell, use it, but understand the sources of the information and ratings. I wouldn’t recommend, however, that you rely on Martindale-Hubbell exclusively to assist you in choosing a divorce or family law attorney, or any attorney, for that matter.

Utah Family Law, LC | divorceutah.com | 801-466-9277

The Availability of Free Online Divorce Law Information is Great! Really, We’re Not Kidding.

The Availability of Free Online Divorce Law Information is Great! Really, We’re Not Kidding.

You can find an abundance of very and useful and interesting legal information online for free, and where money is tight, you should do your homework online. But for legal advice, always consult a good attorney. Not just any attorney, a good one.

If you’re not sure you can afford an attorney, we offer a cost-effective way to find out. Give us a call and set an appointment to meet us over lunch. For $100 you meet with an attorney for an hour, and will pick up the tab for lunch. It’s a great way to educate yourself about the divorce process and to learn how complex or simple your case may end up being.

 

Utah Family Law, LC | 801-466-9277

How to Have as Much Control Over Your Divorce as Legally Possible

“The will to win is worthless if you do not have the will to prepare.” – Thane Yost

“Fortune favors the prepared mind.” – Louis Pasteur

Planning for a divorce may take as much time, or more, than planning and organizing a wedding, yet too often people dive into the divorce process with nowhere near the amount of planning and organization they put into their wedding, if they plan for it at all. This may leave them feeling overwhelmed, frustrated and like they have no control over the situation. To prevent this, and to maintain control over the process, your number one goal should be to get organized, set your priorities, and leave as little of the control in the hands of your spouse and/or the court.

“Extricate yourself from the system, don’t try to vindicate yourself within it.” – Peretz Partensky

Tackle divorce planning like you would any large project.

Eat regular meals, get regular sleep and keep doing things that you enjoy. If you are a runner, make sure you keep running. If you love reading, make sure you set aside time to read. Put these things on your calendar if it helps you keep doing them.

To be and stay prepared, keep your life as close to normal as reasonably possible. Don’t let the divorce process consume you and overtake your routines. Divorce is hard, but does not mean your life must be miserable in the process. Finding peace and happiness will take work, but it’s worthwhile work. Do not let the divorce process consume you and overtake all your normal routines. Eat regular meals, get regular sleep, get exercise (even if you got by without exercise before—divorce will take more out of you than anything else ever has before, and your body will need exercise to meet this unprecedented challenge to your mental and physical health), and keep doing things that you enjoy. If you are a runner, make sure you keep running. If you love reading, make sure you set aside time to read. Put these things on your calendar if it helps you keep doing them. Don’t hesitate to rely on the love and generosity of your family and/or close friends. “A friend in need is a friend indeed.”

Finally, if you believe that the divorce court cares deeply about you and cares about ensuring that you are treated fairly in your divorce, think again. Accept the fact that the more in control you are of your divorce action, the less control you leave in the hands of your spouse or in the hands of the court, and let that fact motivate you, whether out of fear or the feeling of power you get having an accurate knowledge of the divorce process.

If you take the time and care to prepare, you will avoid feeling overwhelmed and frustrated by the divorce process. You will be ready for each step as it comes and you will find yourself not only feeling confident and in control, but actually being truly confident and in control.

“Give me six hours to chop down a tree and I will spend the first four sharpening the axe.” – Abraham Lincoln

So first, get a big binder or box to store important documents you will need to commence the divorce process and to store the documents that you will generate as your divorce progresses, so that all the information you need will be easily found and accessible to you.

Next, make a to-do list. Writing down what you think needs to be done. This will be the list you discuss with your lawyer. Your lawyer will likely add tasks to your list that you and he will need to work on, explain the divorce process, and (if your lawyer’s a good lawyer) will also help you break down crucial tasks into the steps necessary to get each of those tasks done as quickly and inexpensively as possible, and then organize them by importance. This will help you see the end from the beginning, get your organized and focused, and give you more control over the process. You have a plan. You can add to or subtract from your plan as necessary, as the process unfolds. Stay flexible and be realistic.

As you make your to-do list, your head may swarm (and swim) with questions. This is a good thing. It leads to the second step you take.

Use your questions to guide you in solving your problems. Write down a list of your fears and questions you may have about the process. Then research the answers to those questions. Conduct your own research to answer those questions to the extent you can. If there are questions cannot answer, take those to your attorney. Keeping track of your questions and conducting your own research will make the most of your discussions with your attorney.

After conducting your research and meeting with attorneys, make a to-do list. Begin your list by writing down what worries you most. From that list, identify what needs to be done, whether it’s you who takes care of it or someone else. You can then break those items down into the steps necessary to get each of those things done, and then prioritize them by importance. Writing it down, putting it in black and white, will not only allow you to mark tasks off as you complete them, it will keep you on track, and help keep you in control of the process. You can add to the list as necessary as you learn more about the process and what is required. Be prepared to stay flexible and realistic.

If you need a start, try this:

Talk to a marriage counselor.

Even though, at this point, you’ve probably already given up on saving your marriage, these counselors are still useful for other things. A marriage counselor can help you figure out what went wrong in the relationship, and help you cope with the grief you are likely to feel for your marriage.

Gather copies of your financial documents.

Part of filing for divorce will mean filing your financial declaration with the court showing how much real property is worth, your income, monthly expenses, and so on. It is a good idea to get your income tax returns (personal and business), w-2s, banking information, loan documents, stock certificates, life insurance policies, deeds and mortgage statements, and titles to vehicles. Any document regarding assets and expenses will be good to have on hand, and having them now will save you the pain and expense of hunting them down later.

Check your credit.

It is always a good idea to know where your credit stands. Request a copy of your credit report so you can take care of any outstanding collections or correct any errors now instead of trying to deal with them later. If you have joint credit cards with your spouse, discuss closing them to protect both of your credit scores.

Apply for your own separate credit cards.

You will need to establish credit in your own name now, and having a credit card will help to do this. To build your credit but small or set expenses—such as gas—on the credit card and pay if off monthly so you have more credit available to you than you do debt.

Make a post-divorce budget.

Using the documents you gathered earlier, assess what your cost of living and income will be after divorce. Save as much as you can now to prepare for initial expenses you may have—such as apartment deposits and moving costs.

Do not leave the marital home without talking to an attorney first.

Leaving the home may result in alimony payments, or in your inability to collect alimony. If you leave, you may not be able to return until the divorce is finalized; a process that might take a year or longer. Of course, if you are in abusive situation your safety is more important so take the necessary steps to protect yourself and your children.

While these are a good start, they are by no means a complete list of preparing for your divorce.

Meet with not one, not two, not even three divorce attorneys, but five or six (or even seven or eight). Ask your questions of a variety of attorneys to discover how many different perspectives and options there are when it comes to your divorce (you will quickly discover that all divorce lawyers are not created equal).

If there are questions to which you cannot find the answer, these are ones you can save to ask your attorney, if you hire one. Writing down and keeping track of your questions and fears will help you make the most of your discussions with your attorney. Learning everything you can about divorce early in the process will help you make informed opinions and it will give you confidence going forward. Learning everything you can about divorce early in the process will help you take a realistic approach and contribute to the control over, and the real confidence you will have in, your ultimate success.

Next, gather all of your financial information. It is vital that you have an accurate picture of your finances (your income, your living expense, your assets, debts, and liabilities, your savings, retirement and pension information) for the sake of dividing assets and responsibility for debts, as well as for calculating child support and/or alimony correctly.

The more complete and organized this information is the more successful and confident you will not only feel, but be. He or she who controls the documents controls the case. Study these things carefully until you are confident that you know and understand your current financial situation. Then get a binder or a file folder and begin to gather and fill it with documentation of your debts, obligations, income, assets and expenses. This binder or file folder should also be used to store important documents and pleadings as your divorce progresses, so that all the information you need will be easily found and accessible to you. Even if you don’t file for divorce immediately, if you are contemplating divorce, start keeping careful track of your expenses. If you need a simple, convenient way to do so, try mint.com.

Use the district court’s official Financial Declaration form (a copy of that form appears as the end of this article) to identify what the court wants to know, then gather and organize that information and supporting documentation together in one place in a binder or file folder. As much as you may not enjoy it, the more you understand your current financial situation the better you and your attorney can explain and argue it.

The more familiar you are with your finances, the better you can manage them during and after divorce. And divorce usually places a huge strain on your income and ability to meet all of your expenses, which will now include attorney’s fees and possibly child support, alimony, and new household expenses if you move out of the marital home. You’d likely be wise to save up to hire and pay for a lawyer. If you need to borrow money from family or a friend to pay for a lawyer, get documentation of the loan. A handshake agreement will likely not be believed by the court. You need proof that it’s a loan you are planning to repay, not a gift. Then keep a copy of the promissory note in the binder with your other financial documents.

Begin keeping a calendar or dated journal specifically devoted to your divorce. KEEP THIS CALENDAR OR NOTEBOOK WHERE YOUR SPOUSE CANNOT FIND IT. Write down the dates for meetings with your attorney and make notes of what you discussed. Keep track of court deadlines, mediation and other important events. Also, use it to keep track of interactions with your spouse – what you’ve discussed and what your interactions are like.

If your spouse does not keep agreements or appointments, or violates a court order you will want to specifically note this by date. If you and your spouse establish separate residences during the divorce, the calendar should also be used to keep track of visitation dates and other important interactions with your children. Keeping track of your involvement in your kids’ lives (meetings with their teachers and doctors, attending sports or other special events, and visitation or parent-time) may become evidence of your participation in your children’s lives. And it’s important that you and your spouse make sure your children’s physical, social and emotional needs are being met during the difficulties of your divorce. So keeping a calendar of these things can give you a clearer picture of how much interaction you and your spouse actually have with your children. And it can keep you feeling confident that you are meeting your kids’ needs during this difficult time.

Keeping track of your involvement in your kids’ lives (meetings with their teachers and doctors, attending sports or other special events) may be crucial evidence of the level and quality of your engagement with your children’s lives. It’s important that you and your spouse make sure your children’s physical, social and emotional needs are being met during the difficulties of divorce. Keeping a calendar of these things can give you a clearer picture of how much interaction you are actually having with your children. It serves as a reminder to you, your spouse, your children, and to the court that you are meeting your kids’ needs during this difficult time.

Start saving up for an attorney. While it is true that not everyone needs an attorney for a divorce (and when’s the last time you heard a lawyer tell you that?), if you have substantial assets and/or substantial debts, a house, cars, and young children, a do-it-yourself divorce is penny wise and pound foolish (don’t lie to yourself). Just as being in control of the documents and the facts and yourself gives you greater control over your divorce case, hiring a professional to do what you cannot keeps you focused and sane. A lawyer is a trusted advisor in times of doubt and your ally in the fight. Yes, good attorneys cost money, but when the last time you did your job well without being paid well to do it? If you care about having control over your future, and about coming out of divorce without being financially and emotionally raped, a good divorce attorney (notice I said a good divorce attorney, not just any old attorney) is a sound investment.

“One thing that makes it possible to be an optimist, is if you have a contingency plan for when all hell breaks loose. There are a lot of things I don’t worry about, because I have a plan in place if they do.” – Randy Pausch, The Last Lecture

Be one who acts, not one who is acted upon. Take time to think, to plan. Do the work, stay consistent, persevere, and you will won’t feel frustrated or overwhelmed by the divorce process. You will be prepared for each step as it comes and you will find yourself feeling confident and in control.

Attention people who are divorcing and who are parents:

Attention people who are divorcing and who are parents:

Utah law requires divorcing parents to complete not one, but two[1] a mandatory courses (hooray).

You cannot obtain a divorce decree without both parties first attending this mandatory course, unless the court orders attendance waived (don’t expect the court to waive course attendance except in highly rare, extenuating circumstances).

One course, the “Divorce Education Course,” is “a mandatory course for divorcing parents in all judicial districts” . . . designed to educate and sensitize divorcing parties to their children’s needs both during and after the divorce process.  See Utah Code § 30-3-11.3.

The Divorce Education Course isn’t free (it could be, if the courts would just put the course on YouTube, or could be virtually free if it were offered on iTunes for 99¢, but that hasn’t happened and there’s no indication it will any time soon).  The cost for the Divorce Education course is $35, regardless of whether you take it before or after the 30 day time frame.

You can get the fee waived if you prove you’re too poor to pay.

The divorce education course is two hours long.

The other course is “a mandatory divorce orientation course for all parties with minor children who file a petition for temporary separation or for a divorce.”  See Utah Code § 30-3-11.4.   The purpose of the course is “to educate parties about the divorce process and reasonable alternatives.“

The petitioner must attend a divorce orientation course no more than 60 days after filing a petition for divorce.  The respondent must attend the divorce orientation course no more than 30 days after being served with a complaint for divorce.

The court may not hear any motion for temporary orders filed by either party until the party seeking temporary orders has completed the divorce orientation course (hooray).

It is an affirmative defense in all divorce actions that the divorce orientation requirement was not complied with.  The action may not continue until a party has complied with the orientation course.

The divorce orientation course isn’t free either.  You can save $15.00 on the cost of the Divorce Orientation class if you take it within 30 days of filing for divorce (if you are the petitioner who filed for divorce), or within 30 days after being served in a divorce case (if you are the respondent who was served with a divorce complaint).  If you wait longer than 30 days to take the course, the fee doubles, to $30.00.

The divorce orientation course must be at least an hour long.

 

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