Category: Divorce

Can My Spouse Take out a Loan Using Our House as Collateral After I File for a Divorce?

This is a good question and one that often comes up in divorce cases.

I cannot speak for the law in all jurisdictions, but as this question applies in the jurisdiction where I practice law (Utah), these are my observations (my discussion of a general question on Quora does not constitute legal advice, so anyone who has this particular question needs to consult with an attorney personally):

In Utah, can a spouse take out a loan using the marital home as collateral after the other spouse files for a divorce?

First, we need to know what “marital home” means in this context. Even if the house is in your spouse’s name alone, if the house was purchased by one spouse during the marriage, it is (unless the spouses contracted otherwise) still considered marital property because it was purchased by your spouse while he/she was married to you.

So, is it possible for your spouse to borrow against the marital home after a divorce action has been filed in Utah? Yes, but not likely, and even if the loan/credit was made, a Utah court would almost surely void the loan/credit contract.

Yes, if by “possible” we mean that your spouse was able to find a lender who is willing to contract with your spouse to borrow against the marital home’s value without your consent. This does not mean that the loan/credit contract is necessarily enforceable. This does not mean that the loan/credit contract could not be set aside by the divorce court as a fraudulent conveyance under the right circumstances (see below).

Not likely because 1) I don’t know of an institutional lender who would agree to accept as collateral all or a portion of a marital home without obtaining the consent of both spouses first; 2) such unilateral action on the part of your spouse to encumber marital property without your consent could be set aside as a fraudulent conveyance (See Bradford v. Bradford, 993 P.2d 887, 1999 UT App 37 (Court of Appeals of Utah 1999)); and 3) Utah Rules of Civil Procedure 109 provides, in pertinent part:

Rule 109. Injunction in certain domestic relations cases. Effective: 1/1/0021

(a) Actions in which a domestic injunction enters. Unless the court orders otherwise, in an action for divorce, annulment, temporary separation, custody, parent time, support, or paternity, the court will enter an injunction when the initial petition is filed. Only the injunction’s applicable provisions will govern the parties to the action.

(b) General provisions.

(1) If the action concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life.

And so, if your spouse attempted, after a divorce action was filed, to encumber marital property without your written consent, the court would likely void the transaction as fraudulent and/or penalize your spouse for violating the Rule 109(b) prohibition against a spouse encumbering marital property without his/her spouse’s written consent.

Utah Family Law, LC | | 801-466-9277

(61) Can my spouse take out a loan using our house as collateral after I file for a divorce? – Mother-in-Law Mysteries and Conflicts – Quora

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What Would I Have Done Differently If I Were In My Parents’ Shoes? By Braxton Mounteer, Legal Assistant

Like many people, I am a child of divorce. While I may not understand every reason why my parents chose to end their marriage (I was too young to understand at the time), I can look back on how I was raised, both pre- and post-divorce, and see what worked and what only caused problems. Hindsight is 20/20, after all.

I know that I cannot go back in time to do things differently, but if my experience might help divorcing parents who are contemplating these issues and help them avoid the difficulties and disappointments I encountered, this post will be among my best.

One of the things that affected me the most was how my divorced parents handled the matter of my clothes. Having two sets of similarly styled clothes might not have mattered to some people, but it always felt like a continental divide to me. I am the same person at both homes, but no matter what I did, I was never comfortable in either set of clothes. They always felt like I was borrowing clothing from a twin that I had just missed in passing.

My parents lived close enough that during major holidays, we did mid-day drop offs. On paper, this meant that I got two Christmases (and other holidays) on the same day. In reality, I was always late to the party. Always too early or too late to enjoy the holiday.

I love both my parents, but two Christmases gets old very quickly. I was surprised to find that as a child I had a limited amount of avarice during that particular holiday. Both parents want child-like wonder, and it always felt forced to drum up that much emotion for each holiday.

What I would have done differently (and what I did do when I was older) is use a suitcase. I combined both sets of clothing and made one set that I used all the time. It wasn’t the best solution to the problem, but it did help. To fix the holiday problem, I would adjust the schedule so that the holiday wouldn’t have been so taxing for my siblings and me.

Ultimately, the worst issues of my parents divorce are not something that I could have fixed as a child. For those issues I wish my parents would have come to me and my siblings together (parents together talking with their children together), to learn what our needs were and how they could meet them as best they could under the circumstances.

Utah Family Law, LC | | 801-466-9277

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Why All Communications with Your Former Spouse Should be in Writing By Braxton Mounteer, Legal Assistant.

Even if you trust your former spouse to deal with you honestly and in good faith in any matter pertaining to your divorce, why should you communicate in writing with your ex?
Writing down or recapping your conversations in writing (text and/or email) with your spouse creates a verifiable record. If you later present this to your spouse refer back to the record and avoid confusion, refute false claims, and prove real claims.
So if your ex tries to claim you didn’t give him or her notice of the day, time, and place for Timmy’s baseball game, referring back to that text message or email message will vindicate you. If you need to prove you made a timely request for reimbursement for a child health care or daycare expense, written record is essential.
If there is no record, the event or the claim might as well never have existed. If you can’t prove it exists, it doesn’t in the world of law. Phone calls do not exist. Well, to be fair, you may be able to prove a phone call to place, but not what was discussed during the call. Likewise with in-person communications. All the other person would have to do is to claim that the conversation didn’t happen and then it is your word against another’s. To avoid that, create a written record.
Your former spouse may try to get you to discuss (or worse, to agree to) something “off the record,” as it were, and then use that opportunity to take advantage of you. Avoid the hassle; get it in writing.
Utah Family Law, LC | | 801-466-9277
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Holding Marital Property Hostage During a Divorce Just Makes You Look Petty By Braxton Mounteer, Legal Assistant

You may have the idea that you can leverage his or her favorite or most valued things to get a more favorable outcome in your divorce. Holding property that rightfully belongs to the other party (like her jewelry or his tools) makes you look bad any way that you spin it. You may see the situation as a delicate hostage negotiation in order to get what you believe that you deserve, but in reality, if you behave this way, it reveals you as the petty and vengeful spouse you are.
During your divorce, you will be required to divide the marital property between your spouse and yourself and it cannot be avoided. Property division is a major and often, though not always, contentious issue between divorcing parties, getting only more complex the longer the marriage has lasted and the more affluent parties are the. Purposely delaying the division of marital property only makes you look bad and drags out your already expensive divorce.
Every time that you do something just to “get a jab in” on your former spouse, you only look petty and childish. You and your spouse end up making more work (and more profit) for your attorneys and slow the irritating, painful, and angst-inducing process of divorce down.
Be as equitable as possible. Do you really need that specific item of personal property, or are you just trying to be spiteful? If you cannot agree on who should get an item of significant value, or there are not enough items of or there are not enough items (such as a house or a car), or if there are not enough items of property to divide value equally, then sell the item(s) and split the profit.
Take a cool headed and business like approach to the division of property.
Utah Family Law, LC | | 801-466-9277
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Your Divorce Lawyer is Serious About Deadlines By Braxton Mounteer, Legal Assistant

Throughout the divorce process you will have to meet many deadlines.

The court will even provide you with a list of due dates known as a notice of event due dates. If your lawyer does not provide you with a copy, ask for a copy, so that you know the deadlines for yourself.

The consequences for failing to meet the deadlines set by the court and the rules of court in your case can be damaging, even fatal to your case.

When a petition for divorce is filed and served, there is a deadline by which you must file and serve responsive pleadings, meaning your answer or answer and counterclaim. If you don’t respond by the set deadline, default judgment could be entered against you.

If you do not complete discovery or provide your initial disclosures by the deadlines, you may be barred from gathering or presenting evidence or witnesses at trial.

What about extensions of time? You might get an extension on a deadline if you have a legitimate reason to ask for one and if the opposing party agrees to grant you an extension or the court grants your request for an extension. Be careful when asking for extensions, however. If you get an extension on one deadline, the opposing party will almost surely expect a favor from you too in the future.

You are better off (and better for it) by religiously adhering to deadlines. Complying with the deadlines set by the court and the rules of court results in the fewest errors and setbacks and in the fairest and most equitable treatment from the court. And that results in your greatest changes of success.

Utah Family Law, LC | | 801-466-9277

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What Should I Do if My Divorce Is Not Getting Solved Quickly?

This is a great question.

Go find a good (a good, not just any) retired divorce attorney (a divorce attorney, not some other kind of attorney who has no idea how a divorce case works), or, if you are fortunate to know a good (a good) divorce attorney as a personal friend (whether active or retired), go to that divorce attorney friend and recount for this attorney how long your case has been pending from the day it was filed to the present.

In your consultation answer—honestly and forthrightly and with as few adjective and adverbs as possible the questions the attorney you’re consulting with asks you; just the facts (if you are responsible—either in whole or in part—for delays, be honest about that too). The consulting attorney will ask you these questions to help him/her determine both 1) whether your attorney, the opposing party’s attorney, and the court is unreasonably or outright maliciously delaying the resolution of your case; and 2) what options you may have for getting your case moving and progressing expeditiously.

If the attorney you consulted tells you that your case is not progressing at an unduly slow pace, then consider yourself fortunate (even if you’re surprised to learn your case isn’t moving as slowly as you might have expected). Ask the consulting attorney what he/she sees in the handling of your case to this point that you and your attorney can and should do going forward to ensure the case does not lose momentum.

If the attorney you consulted tells you that your case is moving sluggishly, ask the consulting attorney 1) what the problems are; 2) why they are problems and 3) what to do to solve them. Take notes! Ensure that you cover all three subjects with the consulting attorney, so that you can 1) truly identify and understand the problems, 2) confront your attorney with them, 3) what can be done, and 4) why you expect it to be done going forward, if your attorney wants to continue representing you and being paid well to do it. When you do confront your attorney, don’t be a jerk about it. Don’t be a boob, but don’t be a jerk, either. Be businesslike and discuss the matter in a manner most likely to expose the problems, identify the solutions, and start implementing them.

Utah Family Law, LC | | 801-466-9277

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On What Basis Should the Couple Share Half of Property in Divorce if One Contributes Significantly More Than the Other? How Is It Fair?

It’s fair. It’s not fair. Frankly, reasonable minds can differ on this question.

The governing principle in the USA is still (though it’s subtly and slowly changing) in most jurisdictions in the USA that I know of (if not all jurisdictions in the USA) is that property acquired during the marriage by the couple should be divided equally is because a marriage is an “e pluribus unum”-style principle: out of two, one. A married couple is considered to be one when it comes to the ownership of property the couple acquired during the marriage, even if that means that each spouse did not contribute an equal amount of money or effort to the purchase/acquisition of the property.

If the property was purchased with money earned or otherwise acquired by one or primarily by one of the spouses or in exchange for “sweat equity” that one spouse contributed more than the other, the idea is that “what’s mine is yours and what’s yours is mine—it’s all ours.”

Equitable distribution and community property are two different approaches to dividing marital property between spouses in divorce.

Community property states treat all property acquired during the marriage to be owned equally owned by the spouses, and so they, unless exceptional circumstances dictate otherwise, divide the marital property equally between the spouses. Equitable distribution states generally presume that an equal division of marital property is equitable, but an equitable division of property is not necessarily an equal division. In Utah (where I practice divorce and family law), for example the rule of equitable distribution is articulated this way:

Labon v. Labon, 517 P.3d 407, 2022 UT App 103, ¶¶25 – 27 (Utah Court of Appeals 2022; I removed the references to caselaw for the sake of making it easier to read and understand the principles articulated):

In making this division [i.e., and equitable division of property and debts and obligations] the court should engage in a four-step process: (1) distinguish between separate and marital property, (2) consider whether there are exceptional circumstances that overcome the general presumption that marital property should be divided equally between the parties, (3) assign values to each item of marital property, and (4) distribute the property in a manner consistent with its findings and with a view toward allowing each party to go forward with his or her separate life.

And in making the equitable distribution, the court should generally consider the amount and kind of property to be divided. As concerns the type of property, in situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party. Doing so avoids the obviously undesirable situation that forces former spouses to be in a close economic relationship which has every potential for further contention, friction, and litigation, especially when third parties having nothing to do with the divorce will also necessarily be involved.

Moreover, a court should consider the tax consequences associated with the division of marital property if one of the parties will be required to liquidate assets to pay marital debts. But the court is under no obligation to speculate about hypothetical future tax consequences. Thus, when settling property matters, the trial court may decline to consider the speculative future effect of tax consequences associated with sale, transfer, or disbursement of marital property. In other words, there is no abuse of discretion if a court refuses to speculate about hypothetical future tax consequences of a property division made pursuant to a divorce.

Utah Family Law, LC | | 801-466-9277

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What Do We Do When Equal (50/50) Physical Custody Is Awarded but One Parent Isn’t Bearing the Responsibilities Equal Custody Requires of That Parent?

Recently a reader commented on my answer to this question: Is there a primary parent in joint custody in Utah which is also known as “equal” or “50/50” custody?

They were good comments that reflect the frustrations of many parents in equal custody situations. To summarize them:

  • Equal physical custody should not be awarded unless each parent exercises equal parental responsibility
    • Or at the very least, if one equal custodial parent does more of the work of caring for the children during his/her time when the children are in his/her care, award that parent some (or more) child support for his/her trouble.
  • Equal custody should not be awarded or exercised if an equal custodial parent who is ordered to pay child support does not pay it.

It is absolutely and indisputably correct that for a parent to merit an award to him or her of equal physical child custody that parent must bear parental responsibility equally as well.

The question, then, is: what is equal parental responsibility?

While bearing parental responsibility equally could mean that the parents perform each and every parental task equally and in equal amounts (“if I take the child to the doctor this time, you have to take the child to the doctor the next time”), it does not necessarily require it. Pulling equal weight doesn’t mean pulling the same particular weight at the same particular time. If one parent is happier helping with homework than with athletics or club activities, then it may not be a bad idea for that parent to help with most of the homework and for the other parent to take care of getting the kids to and from soccer practices and games. You get the idea.

You mentioned that your ex-husband can pay but chooses not to pay the $40 he is court-ordered to pay each month for homeschooling costs. That’s inexcusable, if you were awarded sole custody, that wouldn’t magically cause Dad to pay you $40 every month either. So not paying money isn’t a reason not to award equal custody. THAT STATED, I know that some parents who were awarded equal custody want all the benefits of equal custody without meeting any of the associated responsibilities. The only way to keep some (some, not all) of these types honest is to hit them in the pocketbook.

We all know that if spending time with the children were conditioned on paying child support in full and on time (when able, of course), we’d see a lot more child support being paid. Not always, but a lot more. We also all know that if receiving child support were conditioned on ensuring that you showed up for every custody and parent-time exchange on time (when able, of course), we’d see a lot more child support being paid as well.

Unfortunately*, Utah’s law is “If a parent fails to comply with a provision of the parenting plan [i.e., the physical custody and parent-time awards] or a child support order, the other parent’s obligations under the parenting plan or the child support order are not affected.” (Utah Code § 30–3–10.9(9)) and “A parent may not withhold parent-time or child support due to the other parent’s failure to comply with a court-ordered parent-time schedule.” (Utah Code § 30–3–33(9))

You also referred to the situation in which Dad never attends health care appointments. This is a hard question to analyze, but here’s my reasoning:

  • If Dad can take the kids to these appointments without placing his job in jeopardy, he should. That way, neither parent is burdened too much with appointments and each parent stays apprised of their children’s health and health care.
  • But if Dad works a 9 to 5 job, and if the appointments take place during the 9 to 5 work day and you’re a stay-at-home parent who homeschools the kids, doesn’t it make more sense for you to take the kids to these appointments? Why make Dad do it just to make him do it? Why make Dad do it when you can do it easier and without placing Dad’s job in jeopardy?
  • On the other hand, if Dad could bear the health care appointments burdens with you equally, but refuses to do so, resulting in you spending all the time and making all the effort required to take care of this important custodial responsibility, that may justify awarding you sole physical custody of the children.

Utah Family Law, LC | | 801-466-9277

*Again, and in fairness (and while I don’t have any data to support this), I’d bet that conditioning custody and parent-time on paying child support and conditioning the payment of child support on the child support recipient complying with custody and parent-time exchanges causes more problems than it solves. Maybe it doesn’t. If there is no data, I think it’s worth experimenting with to find out.

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What Can I Do if My Ex Doesn’t Let My Daughter Come for My Parenting Time Which Is Summer? Our Divorce Is Not Finalized Yet.

I can give you my personal opinion (not legal advice, but my personal opinion) from my perspective as a lawyer licensed in Utah and who practices divorce and family law in Utah. You’ll need to confer with a lawyer about the specifics of your particular case, but I will give you my general take on the situation below.

In Utah, if:

  • you and your spouse are parties to a pending divorce case;
  • you and your spouse have made a written agreement governing a parent-time schedule at any time during the year (whether it be when school is in session or when school is dismissed for the summer);
  • you have an agreement, but the terms of the agreement have not been made the order of the court;
  • you’re upholding your end of the agreement; you’re complying with all of the terms of the agreement;
  • the date when school will be dismissed for the summer is in just a few weeks, or even just a few days, away;
  • but then your spouse tries to renege on the agreement and tells you he/she won’t comply with the agreement

then I would immediately and without delay file an ex parte motion for a temporary order (perhaps an ex parte motion for a temporary restraining order (TRO)) asking the court to order the parties to adhere to their parent-time schedule agreement and request expedited disposition. The longer you wait, the harder it is to prevail. You can request that such a motion be reviewed and decided by the court much more quickly than a typical motion if you can show that time is of the essence (meaning that unless the motion is decided immediately, you will suffer the adverse effects of your spouse’s non-compliance with your parent-time agreement). You can argue that unless the court upholds and enforces the agreement, both you and the children will suffer irreparable harm. See Utah Rules of Civil Procedure, Rule 65A for more details. While there are no guarantees the court would grant such a motion (every judge sees things his/her own way), your odds of succeeding on such a motion are, on the face of it, pretty good.

Utah Family Law, LC | | 801-466-9277

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Elder v. Elder – 2024 UT App 68 – enforcement vs. modification

Elder v. Elder – 2024 UT App 68



Opinion No. 20210902-CA Filed May 9, 2024

Second District Court, Farmington Department

The Honorable David M. Connors No. 154700355

Julie J. Nelson and Jaclyn Robertson, Attorneys for Appellant Steven C. Tycksen, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 The district court issued an order requiring Matt Blake Elder to reimburse his ex-wife, Brittany Lee Elder, for the amount she had paid to satisfy a loan on a townhouse that she had been awarded in the divorce.[1] Matt challenges this ruling on appeal, arguing that it was a procedurally improper modification of the couple’s divorce decree. For the reasons set forth below, we affirm.


¶2 Brittany and Matt were married in 2008. In early 2015, Brittany filed a petition for divorce. Later that year, Brittany and Matt entered into a stipulated agreement that the district court subsequently adopted in a Decree of Divorce (the Decree). Under a “Division of Property” heading, the Decree divided the couple’s real property, vehicles, and other personal property. Matt received the “marital home along with any accompanying debts and/or equity.” Of note here, Brittany was awarded a townhouse “as an equalization of the distribution of the assets.” The Decree specified that “Matt will be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.”

¶3        A separate provision in the Decree was captioned “Remedies on Default.” It stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶4        Matt failed to remove the loan on the townhouse within 120 days. After that 120-day period expired, Brittany filed a motion for an order to show cause. In this motion, Brittany asked the court to hold Matt in contempt for failing to comply with several terms of the Decree—including, of note here, his obligation to pay off the loan associated with the townhouse. The district court later issued an order in which it refused to find Matt in contempt on the townhouse issue, but it did order Matt to “remove all liens on the townhouse” within 30 days. Matt failed to comply with this order.

¶5        In 2017, Matt filed for bankruptcy. Later that year, Brittany sold the townhouse. “[P]ursuant to a short sale agreement she made with the bank,” she paid off a discounted loan balance of $143,165.

¶6        In April 2019, Brittany filed another motion for an order to show cause relating to the townhouse. In this motion, Brittany requested a judgment in excess of $180,000, a figure that included the final loan balance, realtor’s commissions, closing costs, and repairs that she alleged were necessary to make the townhouse habitable.

¶7        During a hearing in July 2020, the district court noted that a domestic relations commissioner had certified for hearing the issue of “the amount [Matt] should pay [Brittany] due to his failure to have the liens removed from the townhouse.” At that point, Brittany’s counsel expressed the desire to conduct discovery on the issue. In response, Matt’s counsel suggested that she wasn’t sure if discovery was warranted because there was “no petition to modify pending,” after which she asked the court to “clarif[y]” whether it would “allow[] there to be discovery between the parties.” The court responded that it was allowing “discovery” on “what amounts, if any,” it should order Matt to pay Brittany for his “failure to have the liens removed from the townhouse,” and the court specifically ruled that the parties could depose each other on this if they wished.

¶8        Brittany subsequently submitted interrogatories, a request for production of documents, and requests for admission to Matt. For his part, Matt issued several subpoenas duces tecum to financial institutions. At a pretrial hearing in November 2020, Brittany argued that Matt’s responses to her requests for admission had been inadequate. Over the protest of Matt’s counsel, the court agreed that Matt’s responses had been inadequate and ordered Matt to submit more detailed responses. In the course of that hearing, Matt never argued that he was being deprived of the opportunity to conduct discovery of his own.

¶9        A few weeks later, the court held an evidentiary hearing on the question of “potential damages connected with the failure to deliver the title” to the townhouse “free and clear of liens.” At that hearing, both parties presented extensive arguments about their positions.

¶10      After almost a year of additional litigation, the court issued a written ruling on Brittany’s motion for an order to show cause. There, the court first noted that the provision in the Decree that made Matt “responsible” for any loans associated with the townhouse had “never been modified.” The court also ruled that Matt’s bankruptcy had not discharged his obligations relating to the townhouse.

¶11      The court then found that Matt had “failed to satisfy, pay off or remove the liens related to the loans associated with” the townhouse and that Matt’s failure had “forced” Brittany to sell the townhouse in order to pay off the discounted loan balance. The court also found that the “actual amount paid by” Brittany to the bank “to remove the lien” on the townhouse “that was associated with the loan was $143,165.00.” And it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree of Divorce.” The court accordingly awarded Brittany “the actual amount she paid the bank, $143,165,” plus post-judgment interest, though it then determined that she was not entitled to any additional amounts related to the renovation and sale of the townhouse. Finally, the court awarded Brittany her “reasonable expenses, including attorney fees and court costs actually incurred, related to the issue of [Matt’s] failure to comply with his obligations” under the Decree.


¶12 Matt challenges the district court’s ruling granting Brittany’s motion for an order to show cause. In Matt’s view, the ruling was not a valid enforcement of the Decree but instead improperly modified it. “We review procedural issues for correctness and afford no deference to the lower court’s ruling.” Berman v. Yarbrough, 2011 UT 79, ¶ 12, 267 P.3d 905.[2]


¶13 Matt argues that when the district court ordered him to reimburse Brittany for what she had paid to satisfy the loan on the townhouse, the court modified the Decree. In Matt’s view, because Brittany had only filed an enforcement action, not a modification action, this ruling was procedurally improper. We disagree with Matt’s assessment of the nature of the ruling.

¶14 District courts enjoy “inherent” authority, “when properly invoked,” to “enforce a final judgment.” Little Cottonwood Tanner Ditch Co. v. Sandy City, 2016 UT 45, ¶¶ 23–24, 387 P.3d 978 (quotation simplified); see also id. ¶ 33 (explaining that district courts may “make such orders as may be necessary to carry out and give effect to their decrees” (quotation simplified)). “If a party fails to comply with a specific directive of a judgment, another party to the judgment may move to enforce this directive.” Id. ¶ 24. However, a “court’s power to enforce a judgment is confined to the four corners of the judgment itself.” PacifiCorp v. Cardon, 2016 UT App 20, ¶ 6, 366 P.3d 1226 (quotation simplified). And a “motion to enforce cannot be used to take up matters beyond the contours of the judgment and thereby short-circuit the usual adjudicative processes.” Berman v. Yarbrough, 2011 UT 79, ¶ 15, 267 P.3d 905 (quotation simplified). A motion to enforce is thus “procedurally improper” where a judgment contains neither an “unequivocal mandate” nor a “clear directive” enjoining “the respondent to undertake some action.” Id. (quotation simplified). This is so because, “without a directive or unequivocal mandate, there is nothing for the court to enforce.” Id.[3]

¶15 Separate from the enforcement power, courts in some instances have power to modify a final judgment that has already been entered. And we’ve previously recognized that a key difference between the power to modify and the power to enforce is that the latter does “not generally extend to modifying the substantive rights of parties that have previously been agreed to or adjudicated.” Robertson v. Stevens, 2020 UT App 29, ¶ 8, 461 P.3d 323. In the family law context, “proceedings to modify a divorce decree . . . must be commenced by filing a petition to modify.” Utah R. Civ. P. 106(a). And a petition to modify allows courts to “revisit many of the provisions contained in a typical divorce decree, including provisions pertaining to child custody, child support, alimony, property distribution, and debts,” under the terms set forth by certain statutes. Robertson, 2020 UT App 29, ¶ 7.

¶16      Here, Brittany filed a motion for an order to show cause, which, as noted, was the procedural mechanism at the time for filing an enforcement action. But Brittany did not file a petition to modify the Decree. The question before us, then, is whether the district court moved beyond its enforcement powers when it ordered Matt to reimburse Brittany for what she had paid to satisfy the loan on the townhouse. Put differently, the question is whether this ruling was authorized from within “the four corners of the judgment,” Little Cottonwood, 2016 UT 45, ¶ 24 (quotation simplified), or whether it instead “modif[ied] the substantive rights of [the] parties,” Robertson, 2020 UT App 29, ¶ 8. In our view, this was indeed an enforcement ruling, as opposed to a modification, because it was grounded in the four corners of the Decree itself and did not alter the parties’ substantive rights.

¶17 “We interpret a divorce decree according to established rules of contract interpretation.” Osborne v. Osborne, 2011 UT App 150, ¶ 6, 260 P.3d 202 (quotation simplified). “When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling.” Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179. “If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” Id. Finally, in “interpreting a contract, we determine what the parties intended by examining the entire contract and all of its parts in relation to each other, giving an objective and reasonable construction to the contract as a whole.” G.G.A., Inc. v. Leventis, 773 P.2d 841, 845 (Utah Ct. App. 1989).

¶18 The Decree in question stated that “Matt [would] be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.” And it further explained that the townhouse was being awarded to Brittany “as an equalization of the distribution of the assets.” In this sense, the Decree plainly contemplated that Brittany would receive the townhouse free and clear. But she didn’t. As indicated, Matt failed to pay off the loan within 120 days. And when the court subsequently issued another order requiring Matt to remove the liens within an additional 30-day period, Matt failed to comply with that order too.

¶19 In the ruling at issue, the court found that Brittany was ultimately “forced to sell” the townhouse and “pay the discounted bank loan balance in the amount of $143,165,” and it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree.” Matt has not challenged these findings on appeal.

¶20 In light of these findings, the order requiring Matt to reimburse Brittany was a proper exercise of the court’s enforcement power. The language of the Decree didn’t narrowly require Matt to pay a particular amount to a particular bank. Rather, the provision in question was worded more broadly, requiring Matt to “be responsible for any loans associated with the townhouse” and requiring him to “have them paid off within 120 days.” (Emphasis added.) As a result, when Brittany was subsequently “forced” to pay the loan off herself due to Matt’s failure to comply with his obligations, the court’s decision to place that financial burden back onto Matt’s shoulders did nothing more than “carry out and give effect” to the Decree’s own terms. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified).

¶21      Matt responds on several fronts, but we find none of them availing.

¶22      First, Matt argues that under the principles set forth in Gullickson v. Gullickson, 2013 UT App 83, 301 P.3d 1011, the court’s order could only have been accomplished through a modification action. We disagree. In Gullickson, the divorce decree had set forth a specific arrangement for how to deal with the marital home after the divorce: namely, the wife was permitted to live in it for a period of five years, during which period she was responsible for making the mortgage payments; at the end of the five years, the husband would be required to either buy out the wife’s share of the equity in the home or instead sell it and give her half of the proceeds. Id. ¶ 2. Of some note, the arrangement under which the wife could remain in the home for five years was “prompted at least in significant part” by the “ongoing special needs” of the parties’ son. Id. ¶ 22. When the wife subsequently faced a changed financial situation, however, she decided to move from the home earlier than planned. Id. ¶ 4. To facilitate this, she “filed a petition to modify the divorce decree,” asking the court to require the husband to either buy her out sooner than was required by the decree (thus changing the time-period set forth in that decree), or to instead agree that she could move from the home and rent it out in order to help her pay the mortgage. Id. ¶ 4. The district court granted the wife’s request and directed the husband to make that choice. Id. ¶¶ 6–7, 13.

¶23 On appeal, we considered various questions relating to whether the district court had properly followed the modification procedures. Id. ¶¶ 21–25. Drawing on aspects of that discussion, Matt now suggests that Brittany’s request in this case could only have been brought as a modification petition. But unlike the wife in Gullickson, Brittany did not file a petition to modify her divorce decree; rather, she filed a motion for an order to show cause, so she chose an entirely different procedural tack all along. Moreover, unlike the wife in Gullickson, Brittany did not ask the court to change any particular term of her divorce decree. Rather, when Brittany asked the court to order Matt to reimburse her for the pay-off amount on a loan that Matt was supposed to have paid from the beginning, Brittany was asking for Matt to be held “responsible” for that loan, which is what her divorce decree already required. Thus, Gullickson involved a modification because the order changed that divorce decree’s terms; by contrast, this case involved an enforcement action because it sought to effectuate the divorce decree’s terms. Gullickson therefore doesn’t mean that Brittany could only proceed through a modification action.

¶24      Second, Matt argues that because the Decree required him to pay off any loans within 120 days, and because the amount at issue had been paid by Brittany much later than those 120 days, the court’s order effectively changed the Decree’s essential terms, thus constituting a modification. If the Decree had only said that Matt was required to pay off a particular loan to a particular bank within 120 days, Matt’s argument might have a little more force (although we might still have some skepticism). But as noted, the Decree wasn’t worded that narrowly. In addition to the language Matt relies on, the Decree said that “Matt will be responsible for any loans associated with the townhouse,” and it further noted that Brittany was being awarded the townhouse “as an equalization of the distribution of the assets.” (Emphasis added.)

¶25 As indicated, when reading contracts or divorce decrees, we interpret surrounding provisions in harmony with each other. The unmistakable intent of the Decree was to require Matt to assume the financial obligations associated with the townhouse. When Matt repeatedly failed to do so in a timely manner, the court had authority to “make such orders as may be necessary to carry out and give effect” to these provisions. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Since it’s uncontested on appeal that Matt’s failure to timely pay off the loan “forced” Brittany to sell the townhouse, the order in question placed the financial cost of that sale back onto Matt, thereby making him “responsible” for the loan, which is what the Decree always required.

¶26 Third, Matt complains of the alleged unfairness that resulted from the court treating this as an enforcement action, as opposed to requiring Brittany to proceed through a petition to modify. According to Matt, if this had been filed as a modification petition, the rules would have provided him with delineated discovery powers. In Matt’s view, these discovery powers would have allowed him to obtain evidence to support various defenses, such as “whether Brittany could have (or even did) take mitigating action,” whether Brittany received any benefit from living in the townhouse between the time of the Decree and when Brittany sold it, and whether “the marital estate was smaller than the parties thought when they stipulated to its division.”

¶27      Matt’s concerns seem grounded in the fact that, both before and after the 2021 amendments, the rules don’t provide for formalized discovery relating to an enforcement action (whether filed as an old motion for an order to show cause or instead through a current motion to enforce). But the question of whether a party should automatically be entitled to discovery in an enforcement action is a question best left to those tasked with drafting the rules. Here, however, Brittany filed a motion for an order to show cause, and as explained above, that motion was warranted to enforce the terms of the Decree. We see no basis for overturning the district court’s ruling simply because the rule drafters have not provided for automatic discovery in such cases.

¶28    In any event, even if it’s possible that the absence of automatic discovery might result in some unfairness in some other enforcement action, Matt is not in a position to complain about any such unfairness here. As noted, the district court specifically allowed the parties to conduct discovery—including taking depositions, if the parties desired—on “what amounts, if any,” the court “should order [Matt] to pay [Brittany] due to the failure to have the liens removed from the townhouse.” In reliance on that, Matt issued several subpoenas duces tecum to financial institutions. And Matt never argued below that he was being deprived of the opportunity to conduct any additional discovery.

¶29      Moreover, Matt also has not persuaded us that any of the proposed evidence would have constituted a valid defense to Brittany’s request for relief. Under the Decree, Brittany was entitled to receive the townhouse without any loans as of 120 days after the stipulation was signed. Nothing in the Decree obligated her to take any mitigation efforts if Matt failed to comply with his obligations to pay off the loans, and any benefits that she received from living in the townhouse in the ensuing years were benefits that she was always entitled to receive. As for Matt’s claim that the parties underestimated the marital estate’s size, we note that Matt stipulated to the terms of the Decree. If he later thought that some error had infected that stipulation or the ensuing Decree, he could have made his own request to somehow alter or modify it. But what Matt wasn’t entitled to do was simply not comply with its terms. And in the meantime, Brittany was entitled to ask the court to enforce the Decree as written, which is what she did.

¶30      In short, we conclude that the district court’s order appropriately “carr[ied] out and [gave] effect to” the terms of the Decree. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Because of this, the district court did not err in granting Brittany’s motion for an order to show cause.

¶31 As a final matter, Brittany has requested an award of attorney fees and costs that she incurred in this appeal, and she has done so pursuant to the same provision from the Decree that authorized the fee award she received below. That provision stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶32      “If the legal right to attorney fees is established by contract, Utah law clearly requires the court to apply the contractual attorney fee provision and to do so strictly in accordance with the contract’s terms.” Vierig v. Therriault, 2023 UT App 67, ¶ 13, 532 P.3d 568 (quotation simplified), cert. denied, 537 P.3d 1013 (Utah 2023). And as a general matter, “when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Tronson v. Eagar, 2019 UT App 212, ¶ 39, 457 P.3d 407 (quotation simplified). Because Brittany has prevailed on appeal, she is entitled to her fees reasonably incurred on appeal. We therefore remand this case to the district court for determination of those fees and an entry of that award.


¶33      The ruling in question was a valid exercise of the district court’s power to enforce the Decree. As a result, we affirm the court’s decision and remand for an award of attorney fees reasonably incurred on appeal.

Utah Family Law, LC | | 801-466-9277

[1] Because the parties share a last name, we’ll refer to them by their first names moving forward, with no disrespect intended by the apparent informality.

[2] In his opening brief, Matt surmised that the district court’s ruling might be read as a contempt ruling, and he then argued that the ruling was not justified under the court’s contempt powers. In her responsive brief, Brittany declined to defend the ruling on this basis, instead insisting that it was a valid enforcement action. We accordingly address the ruling solely on those terms.

[3] The rule in effect at the time that Brittany filed the motion at issue allowed her to file an order to show cause, and it further stated that such a motion could be granted for the “enforcement of an existing order.” Utah R. Civ. P. 7(q) (2019). The cases we’ve discussed above referred to a court’s enforcement power.

Under a rule that became effective in May 2021 and that remains in place, a motion for an order to show cause in a “domestic relations action[]” is now referred to as a “motion to enforce.” See Utah R. Civ. P. 7B(a), (i), (j) (2023). (The same is true in civil cases more generally under rule 7A of the Utah Rules of Civil Procedure.) Rule 7B further provides that its process “replaces and supersedes the prior order to show cause procedure.” Id. R. 7B(j). As with the old regime, however, the new one turns on the court’s enforcement power. See id. R. 7B(a) (allowing a party to file a motion to “enforce a court order or to obtain a sanctions order for violation of an order”).

Neither party in this case has argued that this new rule was intended to alter the substantive scope of a court’s enforcement power, much less that the new rule did so in a manner that would change the outcome of this case. Having surveyed the matter ourselves, we see no authority suggesting that such a change was intended.

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Should You Stay Friends with Your Former Spouse? By Braxton Mounteer

Whether you should be or try to be friends with your spouse after a divorce is a tough question to answer. Many divorced people continue to care about each other after divorce. Some even find their personal relationship between each other improves. Most maintain an icy distance from each other. I won’t say that being truly friendly can’t be accomplished after divorce, but the question really is: should it?

If you have children, at the very least you must maintain a respectful relationship with the children’s co-parent (even if you have to fake it, in my opinion). Just because you and your former spouse have differences does not mean that your children must share in those differences. Maintaining a co-parenting relationship that doesn’t burden the children is in their best interest. They deserve it. It’s the least you can do for them.

Side note here: I know there are those of you reading this who were innocent victims of a spiteful spouse in your divorce. That you were the class act all along and continue to be, while your ex-spouse remains antagonistic toward you. I know about those of you treat your ex-spouse by Golden Rule post-divorce, while your ex-spouse does not reciprocate. As a legal assistant, I see the ex-spouses who hypocritically hold you to a standard they themselves do not follow. This is not fair, not even close, but for the sake of your children’s well-being, you need to know that sinking to the same level as your petty, spiteful, even malicious ex-spouse would benefit no one and only make life harder for the kids. Doing the right thing matters most when doing the right thing is hard.

Sometimes it may be unavoidable to have some kind of continuing relationship with your ex-spouse. Are you coworkers? Do you have mutual friends or engage in the same activities that neither of you is willing to give up? If so, you must determine mutual friends and activities are worth making the effort to get along with your ex-spouse. If they aren’t, you can’t complain about having to give those things up for the sake of achieving your goal of having nothing to do with your ex-spouse post-divorce.

We have all heard a story of an “ ugly divorce”. Most people burn whatever bridge that they had or may have had with their spouses over the course of that process.

The fact is that the right thing to do, if only for your own sake and without consideration for your ex-spouse, is to recognize your own failings that contributed to the failed marriage (and don’t misunderstand me; if you’re not at fault, you’re under no obligation to apologize falsely) and to forgive your ex for his or her faults and the hurt he or she caused you, so that you can put your troubled past behind you as best you can as you move on with life after divorce. “Hate is a poison more deadly to the hater than the hated.” If all you can do is make peace with the pre-divorce past, that’s invaluable. If you can do one better and bury the hatchet, becoming friends, though no longer spouses, don’t let your pride stand in the way of that. If you do, you’ll regret it.

Utah Family Law, LC | | 801-466-9277

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What Would I Say, if I Were a Judge or Commissioner Hearing a Protective Order Request Case and I Denied the Request for the Protective Order?

I would say this:

By law I cannot grant a request for a protective order unless a preponderance of the evidence supports the request.

If the request lacks the support of a preponderance of the evidence, then the law prohibits me from granting it, even if I desired to grant it in spite of the law. I have no desire to act in spite of the law.

It is tempting to grant a protective order unsupported by a preponderance of evidence on a “better safe than sorry” basis, but that temptation’s ultimate end is, as is true of all temptations, evil. Abusing the law to provide protection from ostensible cohabitant abuse would be rank hypocrisy.

Finding a petitioner has not met the burden of proof does not mean either 1) the petitioner is or is not, in fact, a victim of cohabitant abuse; or 2) the respondent did or did not, in fact, commit cohabitant abuse.

If any protective order petitioner is in fact a victim of cohabitant abuse, then I suggest that the petitioner take all reasonable, necessary, and legally permissible measures available to the petitioner for the petitioner’s protection. A protective order is certainly not the only or the most effective protective measure a cohabitant abuse victim can or should take. A sheet of paper or an image on a screen cannot deflect fists, feet, clubs, knives, or bullets. A protective order is only as effective as it is duly enforced, but unfortunately, “When seconds count, the police are just minutes away.” For your own sake be resourceful. Do not become a victim of your own inaction.

If a protective order respondent is, in fact, innocent of the allegations made against the respondent, then I extend to all such respondents this court’s apologies for the stigma that may, and almost certainly will, attach to and dog the respondent for who knows how long as the result of being falsely accused. Fraudulently sought protective orders are all too common, and everyone in the legal system knows it.

If a protective order respondent is, in fact, a cohabitant abuse perpetrator whom the preponderance of evidence standard unwittingly abetted, then I hope and suggest you seize on this opportunity to sin no more. You may not be so lucky next time.

The first courtroom I set foot in as a lawyer had these two statements written on its walls: “Know thyself. – Socrates” and “Control thyself. – Cicero”. I commend this advice both to the petitioner and to the respondent.

Having reviewed the admissible evidence presented to me on the petitioner’s request for a protective order and having found that the petitioner has not met the preponderance of evidence burden of proof, the request must, therefore, necessarily be and is denied.

Utah Family Law, LC | | 801-466-9277

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What Would Happen if One Parent Does Not Bring Their Child for a Utah Court-Ordered Custody Exchange?

First, we need to learn and understand the term for violating a court order. That term is “contempt of court.” In Utah, one commits contempt of court in a civil proceeding (like a child custody case in a divorce or between unwed parents) if, and only if, all of the following criteria are met:

As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so. The district court must make explicit findings, whether written or transcribed, on the three elements of contempt. In a civil contempt proceeding, those elements must be proved by clear and convincing evidence.

(Koehler v. Allen, 466 P.3d 738, 2020 UT App 73 (Court of Appeals of Utah))

So, if the parent did not meet for the child custody or visitation/parent-time exchange because his/her car was out of commission or because the flight home was delayed for weather or because he/she was in a coma (you get the idea), then that parent couldn’t be held in contempt because a) that parent did not have the ability to comply (at least at that time), and b) did not intentionally fail or refuse to comply with the court’s order, that parent cannot be held in contempt.

If the parent could comply with the order and intentionally violated the order, that parent can be held in contempt.

To hold a parent in contempt, you would need to file a motion to hold the parent in contempt. You could move for (but are not required to move for) sanctions against the parent for his/her contemptuous actions. Here is where you can find the forms for this, if you want to file them yourself, instead of retaining the services of an attorney to file and prosecute the motion for you (warning: rarely do people who aren’t attorneys fill out, file, and serve these forms correctly, and oftentimes a winning motion is lost because of it):

Motion to Enforce Order (

What kinds of sanctions can the court impose for contempt of court for noncompliance with the child custody and parent-time orders?

See Utah Code Section 78B-6-316:

Utah Code § 78B-6-316.  Compensatory service for violation of parent-time order or failure to pay child support.

(1) As used in this section, “obligor” means the same as that term is defined in Section 81-6-101.

(2) If a court finds by a preponderance of the evidence that a parent has refused to comply with the minimum amount of parent-time ordered in a decree of divorce, the court shall order the parent to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the parent about the importance of complying with the court order and providing a child a continuing relationship with both parents.

(3) If a custodial parent is ordered to perform compensatory service or undergo court-ordered education, there is a rebuttable presumption that the noncustodial parent be granted parent-time by the court to provide child care during the time the custodial parent is complying with compensatory service or education in order to recompense him for parent-time wrongfully denied by the custodial parent under the divorce decree.

(4) If a noncustodial parent is ordered to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the noncustodial parent’s parent-time with the child.

(5) The person ordered to participate in court-ordered education is responsible for expenses of workshops, classes, and individual counseling.

(6) If a court finds by a preponderance of the evidence that an obligor has refused to pay child support as ordered by a court in accordance with Title 81, Chapter 6, Child Support, the court shall order the obligor to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the obligor about the importance of complying with the court order and providing the children with a regular and stable source of support.

(7) The obligor is responsible for the expenses of workshops, classes, and individual counseling ordered by the court.

(8) If a court orders an obligor to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the obligor’s parent-time with the child.

(9) The sanctions that the court shall impose under this section do not prevent the court from imposing other sanctions or prevent any person from bringing a cause of action allowed under state or federal law.

(10) The Legislature shall allocate the money from the Children’s Legal Defense Account to the judiciary to defray the cost of enforcing and administering this section.

What else can the court order?

See Utah Code Section 78B-6-310:

Utah Code § 78B-6-310.  Contempt — Action by court.

(1) The court shall determine whether the person proceeded against is guilty of the contempt charged. If the court finds the person is guilty of the contempt, the court may impose a fine not exceeding $1,000, order the person incarcerated in the county jail not exceeding 30 days, or both. However, a justice court judge or court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both.

(2) A fine imposed under this section is subject to the limitations of Subsection 76-3-301(2).

And you can ask for the court to award you the fees and court costs you incurred in having to prepare and prosecute the motion to enforce the domestic relations order and for sanctions as well.

Should I call the police?

Whether to call the police depends on the circumstances, but generally, I discourage calls to the police simply because a parent refuses to obey a court order to meet to exchange custody of the children. If there is real concern (real concern) that a parent has absconded with or kidnapped a child, a call to the police is more than warranted, but calling the police in the hope that they will coerce or intimidate a parent into complying with the custody exchange orders usually doesn’t work and often makes you (if you call the police) look spiteful. And it upsets the police (they feel they have much better things to do than respond to calls of noncompliance with child custody exchange orders). Better to report the noncompliance to the police by calling them, reporting the noncompliance with a brief description of what happened, and asking the police department to make a record and give you the incident number for the report. That way, when you move to hold the contemptuous parent in contempt, you have proof that you were complying at your end and did complain to the police about it.

But I thought that noncompliance with child custody and parent-time orders is a crime.

In Utah, it is a crime (see Utah Code Section 76-5-303 (Custodial Interference)), but with extraordinarily rare exception, law enforcement officers simply refuse to enforce it. I’ve never witnessed anyone being arrested or even cited for it. Better to report the noncompliance to the police by calling them, reporting the noncompliance with a brief description of what happened, and asking the police department to make a record and give you the incident number for the report. That way, when you move to hold the contemptuous parent in contempt, you have proof that you were complying at your end and did complain to the police about it. That way you have documented the noncompliance and your reasonable efforts to enforce it to the extent that the police are willing to do anything connected with enforcement (which is, admittedly very little).

What if this is a chronic problem (the other parent repeatedly doesn’t show up for exchanges)?

If the other parent is shamelessly flouting the custody and parent-time exchange orders, and if you have a long enough history you can prove (and you can prove the no-shows are intentional), that could, if it’s egregious enough, constitute a basis for a modification of the child parent-time and/or child custody awards themselves. If you can prove that the chronic noncompliance constitutes “a substantial and material change in the circumstances upon which custody was awarded” and “that a modification is in the best interests of the child,” to remedy the problems being caused by these substantial and material change in the circumstances (See Hudema v. Carpenter, 1999 UT App 290, ¶ 22, 989 P.2d 491), you might prevail on such a petition.

Utah Family Law, LC | | 801-466-9277

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What Are the Options for Someone Who Has Been Served Divorce Papers by Their Spouse Who Has Moved Away and No Longer Wants to Be With Them?

If you want to know your options and have the time to exercise them, then you need to meet with an attorney immediately to find out what the law requires of you, so that you don’t default (“default” means that you failed or refused to answer or defend against the divorce petition or complaint filed against you in court) and end up having judgment entered against for your default. You have a limited amount of time to respond to the petition/complaint for divorce before you will be in default. Choosing to procrastinate is not an option that would do you any goodGo consult with an attorney immediately. Bring the divorce papers you were served with to the appointment.

Utah Family Law, LC | | 801-466-9277

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Second-Hand Testimony Is and Never Will Be Better Than the Witness’s Own Testimony in His/Her Own Voice

For lawyers and parents (and perhaps even commissioners and judges) who hate child custody determinations (temporary or otherwise) based upon proffer, I share this with you:

This court has previously expressed concern about determining custody based upon proffers given the seriousness and magnitude of child custody decisions.


In Fullmer v. Fullmer, 761 P.2d 942 (Utah.Ct.App.1988), this court reviewed a permanent custody award entered based upon a proffer of witness testimony and the stipulated receipt of two child custody reports. In a footnote, we observed:

Although the parties stipulated that the testimony could be presented by proffer, and appellant does not argue that she was entitled to an evidentiary hearing, we note that an evidentiary hearing with all witnesses testifying would have been preferable. In a child custody case, we are convinced that witness demeanor and credibility are critical in ascertaining whether there has been a change of circumstances and what is in the best interests of the child. Any award of physical custody based solely upon what an attorney states a witness would have said and documentary evidence not subject to cross-examination is tenuous at best and subject to close scrutiny on appeal. Such deficiencies undermine the vitality of the trial court’s determinations.

Id. at 945 n. 1 (citations omitted); see also Hamby v. Jacobson, 769 P.2d 273, 278 (Utah.Ct.App.1989) (“[I]n cases involving the best interests of a child and competing claims by parents of the child, demeanor and credibility of witnesses is particularly critical, and use of proffers should be discouraged.”).


[W]e reiterate that the use of proffers as a basis for child custody determinations, whether permanent or temporary, is discouraged.

(Montano v. Third Dist. Court for County of Salt Lake, 934 P.2d 1156, 1157-1158 (Utah Ct.App.1997).

The presumption that second-hand testimony “from” a child through someone other than the witness is generally better than hearing from the witness himself/herself is rationally and factually bankrupt. The idea that a judge (a former lawyer) charged with adjudicating a child custody dispute shouldn’t interview a child who is the subject of a custody dispute but should appoint a lawyer to do it (and in secret) instead is rationally and factually bankrupt as well.

In light of the sentiments expressed in the Montano decision, I ask you: why appoint PGALs and/or custody evaluators who (a) refuse to record their interviews of the children and of collateral sources for the record and (b) refuse to allow children to testify and/or refuse to interview children on and for the record in child custody dispute cases; and (c) continue to insist that second-hand testimony is better than the witness’s own testimony in his/her own voice?

Utah Family Law, LC | | 801-466-9277

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Taylor v. Elison, 2011 UT App 272, ¶ 6:

The bifurcated inquiry required by Utah law in custody modifications cases where the court must consider whether “there has been a substantial and material change in the circumstances upon which” custody was awarded and “whether a modification is in the best interests of the child.” See Hudema v. Carpenter, 1999 UT App 290, ¶ 22, 989 P.2d 491.

Utah Family Law, LC | | 801-466-9277

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Is It Common for Ex-spouses to Continue Supporting Each Other Financially and Emotionally After a Divorce? What Are Some Potential Solutions for This Situation?

See parent question. I am a divorce lawyer, and after a divorce case ends (meaning a decree of divorce has been issued and case essentially closed), I literally never know how the divorced couple interacts afterward unless their interactions result in the violation of provisions of the decree, or circumstances change so substantially and materially from what they were at the time the decree of divorce was entered that modifying the decree becomes either necessary or warranted.

If a court orders an ex-spouse to pay child support and/or alimony, then clearly that ex-spouse will be supporting the other financially, but this is due to a court order, not out of the goodness of that ex-spouse’s heart (in fairness, most people have no objection to supporting their own minor children and would do so whether they were “court-ordered” to do so).

That stated, it is my impression that post-divorce, most (most, not all) couples interact with each other very little, and only as much as necessary. Obviously, divorced parents of minor children almost always find themselves interacting with each other more than a couple without children or whose children are grown adults and not living with either parent because these divorced parents of minor children need to sign documents pertaining to the children, attend health care appointments and parent teacher conferences, performances and athletic events in which the children participate, etc.

Some ex-spouses end up voluntarily supporting an ex-spouse financially and/or emotionally because they didn’t want the divorce and still care for their ex-spouses and genuinely want to help them. Some provide support over and above what the court orders because it’s easier to provide the support than it is to ignore the ex-spouse’s constant wheedling and complaining, threats, and overall nuisance-causing.

Some people divorce in such an amicable way that they can truly care for each other yet conclude (often mutually) that they are better off friends than spouses. In those situations, they can and do care about and support each other as friends. I don’t know about you, but I am not in the habit of supporting my friends financially (with friends like those . . . ). Of course I’ll help in a time of emergency or need, I’ll buy a friend a birthday gift, pick up the tab for a meal, and things like that, but I don’t consider it part of a friendship to be paying a friend’s expenses with any degree of regularity. So a “friendly ex-spouse” who expects your friendship with him/her to include regular financial support of any amount is probably exploiting your good will.

For the most part, it is my experience that most ex-spouses do not voluntarily continue to support each other financially and emotionally after a divorce; it’s part of the divorce process to cut those ties.

A divorced person who feels “cheated” or “deprived” of an ex-spouse’s financial and/or emotional support after divorce because of divorce is someone who either does not understand divorce or its purpose.

If one is an innocent spouse who was nothing but loving and supporting and faithful and devoted during the married and his/her spouse divorced him/her due to no fault of the innocent spouse, well, honey, unless your ex comes to his/her senses and sincerely begs your forgiveness (and it is known to happen in rare, rare circumstances—not frequently enough to justify believing or even hoping it is likely to happen), then if your ex wants nothing more to do with you, you’re much better off finding love, affection, and support elsewhere.

Utah Family Law, LC | | 801-466-9277

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How to Refer to Numbered Paragraphs in Divorce and Family Law Cases

If you care to know: please don’t refer to the numbered paragraphs in divorce and family law cases as anything other than paragraph numbers. ¶

So it’s “paragraph 4”.

Not “section 4”.

Not “clause 4”.

Not “subdivision 4”.

Not “part 4”.

Not “article 4”.

Not “item 4”.

Not “segment 4”.

Just paragraph 4. ¶ 4.

Thank you.

Utah Family Law, LC | | 801-466-9277

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What Are the Standards for Appeal That Usually Apply in a Utah Case?

See 2024 UT App 54 – Tilleman v. Tilleman, which recites many of them:

¶26 . . . Generally, we review a trial court’s custody award for an abuse of discretion. See T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified). But whether the court correctly interpreted the legal standards set forth in sections 30-3-10 and 30-3-10.2 is a question of law that we review for correctness. See Ross v. Ross, 2019 UT App 104, ¶ 8, 447 P.3d 104. See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (stating that because “trial courts do not have discretion to misapply the law,” “the abuse-of-discretion standard of review will at times necessarily include review to ensure that no mistakes of law affected a lower court’s use of its discretion”) (quotation simplified).

¶26 . . . We review the trial court’s findings of fact for clear error. See T.W., 2021 UT App 132, ¶ 15. Under this standard, “the factual findings of the district court will not be disturbed unless they are clearly erroneous by being in conflict with the clear weight of the evidence. But the existence of conflicting evidence is not sufficient to set aside a district court’s finding.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (quotation simplified).

¶27  . . . In reviewing the admissibility of evidence, we review the underlying legal questions for correctness and the “court’s decision to admit or exclude evidence and [its] determinations regarding the admissibility of expert testimony” for an abuse of discretion. Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729 (quotation simplified). “However, error in the district court’s evidentiary rulings will result in reversal only if the error is harmful.” Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT App 134, ¶ 17, 351 P.3d 832.

¶28  “We review the district court’s interpretation of statutory requirements for correctness” and “the court’s ultimate imputation of income . . . for abuse of discretion.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 23, 455 P.3d 1071 (quotation simplified).

¶29  “We review a district court’s decision to award attorney fees pursuant to this statute (Utah Code § 30-3-3) for an abuse of discretion,” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134, but review its underlying legal conclusions for correctness, see De La Rosa, 2019 UT App 110, ¶ 4.

Utah Family Law, LC | | 801-466-9277

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My Husband Is Forcing Me to Get My Inheritance From Court From My Ex-husband’s (Deceased) Brothers Otherwise He Will Divorce Me. What Should I Do?

Talk to a good (a good) lawyer about whether you even have the right to “inherit” from your ex-husband’s brothers. Unless there are bizarre circumstances at work here, odds are you have no rights to your ex-husband’s brothers’ decedents’ estates. Talk to a good lawyer who handles wills and probate matters to find out. Heck, bring your husband along to the meeting, so that he learn first-hand from the lawyer himself (that way he can’t tell you that “you don’t understand” if you come back from the lawyer’s office by yourself and tell your husband what the lawyer told you).

As for a husband who threatens to divorce you if you don’t try to obtain a portion of your ex-husband’s brothers’ decedents’ estates, if this kind of behavior on his part is the norm in your marriage, you ought next to find out if this is mental illness, whether it’s behavior that can be corrected, whether he’ll recognize the behavior as wrong, or whether he’ll choose (regardless of why) to continue to conduct himself contemptibly. If your husband is chronically manipulating or emotionally abusing you without remorse, you may be better off without him.

Utah Family Law, LC | | 801-466-9277

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