Tag: divorce law

Does an ex-spouse have claims to properties purchased during the marriage but name is not on deed, deed states married man and no mention of the property or distribution in the divorce?

I can answer this question in the context of the law of Utah, which is the jurisdiction where I am licensed to practice divorce and family law. To learn the answer to the question for another state, you would need to consult the law of that jurisdiction and/or consult with an attorney who is licensed in that state.

If your question is, “Do I have a claim to property my spouse purchased during the marriage but did not disclose the existence of during the divorce proceedings (meaning that I discovered its existence only after the decree of divorce was entered by the court)?”, then the answer is (in Utah):

Yes, you may have a claim. Now that means you have an argument for an award of some or all of (or a money judgment for some or all of the value of) that undisclosed property to you. You do not have an automatic right to any such award, but you may have a strong argument for it. If you want to pursue your claim, you should almost always pursue as soon as you possibly can. Delays in asserting and prosecuting a claim can weaken your claim.

Utah Rules of Civil Procedure, Rule 26.1 provides, in pertinent part:

(f) Sanctions. Failure to fully disclose all assets and income in the Financial Declaration and attachments may subject the non-disclosing party to sanctions under Rule 37 including an award of non-disclosed assets to the other party, attorney’s fees or other sanctions deemed appropriate by the court.

Note: separate property usually remains separate property in a divorce. Separate property has three (which is basically two) different forms in a marriage: 1) property one owned (and “property” in this sense includes money you owned) before marriage (premarital property) and 2) property purchased with separate property funds. Separate property also includes money or property you obtained during the marriage if you obtained it by gift from someone other than your spouse and it also includes money or property you inherited during the marriage. So if, while married, you inherited a house from your parent, that house would be your separate property. Now one can convert (the legal term is “transmute”) separate property into marital property (by transferring title from yourself to you and your spouse jointly, or by spending money you inherited by adding a room to the marital home, or by spending your inheritance on a fancy cruise for you and our spouse—you get the idea), but if the separate property is not transmuted, it usually (usually) remains your separate property, although Utah law permits a court to award separate property to the other spouse, if circumstances warrant it.

Elman v. Elman (245 P.3d 176, 2002 UT App 83 (Utah Court of Appeals 2002):

¶ 18 Generally, trial courts are . . . required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

¶ 19 However, separate property is not “totally beyond [a] court’s reach in an equitable property division.” Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in “‘extraordinary situations where equity so demands.’” Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1993) (“‘Exceptions to this general rule include whether … the distribution achieves a fair, just, and equitable result.’” (quoting Dunn v. Dunn, 802 P.2d 1314 at 1320)).

And there are these authorities too:

“The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property.” Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990). Such separate property can, however, become part of the marital estate if (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it, or (2) the property has been consumed or its identity lost through commingling or exchanges or where the acquiring spouse has made a gift of an interest therein to the other spouse. (Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (citation omitted)).

Premarital property, gifts, and inheritances may be viewed as separate property, and in appropriate circumstances, equity will require that each party retain separate property brought to marriage; however, the rule is not invariable. Burke v. Burke, 733 P.2d 133 (Utah 1987).

A material misrepresentation or concealment of assets or financial condition as a result of which alimony or property awarded is less or more than otherwise would have been provided for is a proper ground for which the court may grant relief to the party who was offended by such misrepresentation or concealment, absent other equities such as laches or negligence…. However, before relief can be granted, it must be determined that the alleged misrepresentation or concealment constitutes conduct, such as fraud, as would basically afford the complaining party relief from the judgment. (Clissold v. Clissold, 30 Utah 2d 430, 519 P.2d 241, 242 (1974) (citations omitted), overruled in part on other grounds by, St. Pierre v. Edmonds, 645 P.2d 615, 619 n. 2 (Utah 1982); accord Boyce v. Boyce, 609 P.2d 928, 931 (Utah 1980) (noting that “[c]learly, a court should modify a prior decree when the interests of equity and fair dealing with the court and the opposing party so require”); Reid v. Reid, 245 Va. 409, 429 S.E.2d 208, 211 (1993) (ruling that “[o]nce the amount of spousal support is determined, the statutes and case law specifically limit the divorce court’s authority to retroactively modify that amount, absent fraud on the court ”) (emphasis added).

Utah Family Law, LC | | 801-466-9277

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Should mutual friends choose sides in a divorce?

There’s more to consider than just the mutual friendship.

Such as whether someone is seriously in the wrong. You wouldn’t (or shouldn’t) fail to report a friend for committing murder. Hard as it would be to do the right thing, doing the wrong thing is much worse. Likewise, sitting on the fence in a divorce case involving mutual friends would be wrong if you are a witness to one of the two spouses abusing the other spouse or the couple’s children, or wasting the family funds on drugs or a paramour, for example.

But if you are not a witness to any wrongdoing by either spouse that is relevant to the divorce action, and if there is nothing in either spouse’s conduct that gives you cause to terminate your friendship or to dislike either one of them, it’s likely the wisest course of action to inform your mutual friends that the divorce action does not change your friendship with either of them, that you wish to remain friends with both of them, and that you would appreciate it if neither of them would try to have you give testimony for or against either of them.

Utah Family Law, LC | | 801-466-9277

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If I Get Married and Divorce Laws Change, Then Can I End the Marriage Before a New Divorce Law Applies Mentioning the Same as the Reason for Divorce?

My answer to your question is going to be a generalized answer to a hypothetical question. Before you take any real-life legal action in relation to real, existing laws, you will need to ensure you understand now the real, existing laws are construed and applied. And you would likely benefit from consulting with an attorney in your jurisdiction who is familiar with the law there. With that stated:

If I understand your question correctly, you are asking a question involving this scenario:

  1. A divorce law currently exists.
  1. The law may change or you know it is going to change.
  1. Under the current law, you could benefit from its provisions.
  1. You want to take advantage of the benefits that the current law provides before those benefits disappear after the change to the law goes into effect.

So, your question is, can you file for divorce now to take advantage of the benefits of an existing law before the law changes? You certainly could. It is not uncommon for people to take action under the provisions of laws that are about to change, so that they can take advantage of the provisions in the old law that will no longer exist after the changes go into effect. This happens with tax law frequently.

If you filed for divorce under an old law’s provisions to obtain the benefits the old law bestows and if your decree of divorce was granted before the law changed, it is likely that the new laws would not apply to your case. You would, however, still want to ensure that the changes to the law do not operate such that the changes are not retroactive or invalidate any pending divorce actions filed under the old law.

Utah Family Law, LC | | 801-466-9277

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Can a Prenuptial Agreement Be Legally Binding if It’s Signed After the Marriage and Before the Divorce?

I will answer this question in the context of Utah law because I practice law in Utah.

The term “prenuptial agreement” means “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” (See Utah Code § 30-8-2. Definitions)

Dictionaries define, correctly, a prenuptial agreement as an agreement a couple makes before they marry that establishes rights to property and support in the event of divorce (or death).

“Prenuptial” means before (pre) marriage (nuptial). So, a prenuptial agreement cannot be created after marriage. But there is also such a thing as a postnuptial agreement, meaning an agreement that a married couple makes after marriage that establishes rights to property and support in the event of divorce (or death). As long as the postnuptial agreement meets the legal requirements for enforceability, a married couple can enter into a postnuptial agreement in Utah.

Utah Family Law, LC | | 801-466-9277

Eric Johnson’s answer to Can a prenup be legally binding if it’s signed after the marriage and before the divorce? – Quora

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What Made You Want to Become a Family Law Attorney?

Thank you for asking this question. It comes at a time when I’ve been thinking about this very subject.

I am the first lawyer in my family. I am also, at this point, the only lawyer in my family. I’ve been practicing law for 25 years, and while I did not exclusively practice family law at the beginning of my career, I practiced family law throughout my career, and focused purely on family law for the last 13 years. I chose to practice family law because I got tired of this scenario:

Potential client: Somebody did me wrong to the tune of $20,000, and I’d like to know how much it will cost for me to sue him to get a judgment against him for $20,000.

Me: It will cost you about $20,000 to sue him to get a judgment for $20,000.

Potential client: Hmmm, so I have to pay $20,000 to get $20,000? That still means I’m out $20,000.

Me: No, it’s worse than that. It will cost you $20,000 to sue him to get a judgment for $20,000, if you get a judgment for $20,000 against him, and even if you do get the judgment for $20,000 against him, that doesn’t mean you’re guaranteed to collect that $20,000 judgment. You will likely have to spend more time and effort after obtaining the judgment against him to collect the $20,000, and that’s if he actually has $20,000 that you can collect.

Potential client: Then it seems to me that it doesn’t take a genius to realize that odds are I’d be better off just cutting my losses and not suing.

Me: Agreed. Suing people to recover damages is, for most people, a losing proposition, in my experience.

It was good advice, but as you may have guessed, I didn’t make any money dispensing such advice.

Personal injury is too much of a money grab. Of course those who were wrongfully injured deserve compensation for their losses, but that has about as much to do with personal injury practice as that trip to Vegas has to do with being a necessary business expense.

I didn’t like criminal defense because I got tired of A) guilty people wanting my help to avoid accountability and B) dealing with those prosecutors and judges who at best don’t much value innocence and at worst fraudulently disregard it.

So what makes family law any different? While divorce and child custody disputes are also often matters of throwing good money after bad, you at least possess something you haven’t yet lost and that you may, if you can persuade the court that your just cause is just, still hold onto after all the litigation dust settles. Fighting for your children, your home, and your livelihood are some of the last things people should give up on. This is one of the reasons why I became a family lawyer. It’s a good fight.

What issues in divorce and family law that do not drown in a vast sea of lies are difficult–at times impossible–to detect in and among the fraudulent froth, which breeds cynicism and apathy in most judges. Knowing this, judges’ credulity fatigue leads to perfunctory, “I don’t need to hear any more” and “your guess is as good as mine” decisions. Knowing this, lawyers and litigants too often either deliberately take an ends justify the means approach or a “who knows what’ll work; let’s see what sticks to the wall” approach. Litigants abuse lawyers who abuse judges who abuse litigants in a vicious circle. Nothing destroys one’s faith in the legal system more or faster than experience with the legal system. The practice of family law is soul sucking. While our legal system is fairly well designed, it is, in general, poorly administered at every level from the judges on down to the lawyers and to the litigants. While there are some good people working within the system, there are not enough of them to make a meaningful difference in most cases, to say nothing of all cases. This is the other reason I practice family law; it’s the only practice niche where—because I know through hard-won experience where the quicksand, snakes, and tigers are, and how to avoid them, if not always defeat them—I can still do some good some of the time more often than in any other practice niche, and thus I can earn the money I charge for my services.


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

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Is 50/50 custody likely when the parents live in the same neighborhood?

What is the likelihood of reverting to 50/50 custody when the parents live in the same neighborhood? Mom still cares for the child over 80%

Your question states in part, “What is the likelihood of reverting to 50-50 custody.” Your use of the word “reverting” implies that at one time in the past you and the other parent exercised joint equal (50/50) custody of the child. It appears that at some point one or both of you moved away from each other such that 50/50 custody could not be practicably exercised anymore, at which point sole or primary custody of the child was awarded to the mother. 

It appears that either the mother has moved into your neighborhood or you have moved into the mother’s neighborhood, such that 50/50 custody can now be practicably exercised again.  

Unless you have an unusual case in which the court does not allow the parents to determine what the custody and parent time schedules are, you and the mother could agreed to resume a 50/50 custody and parent time schedule, if you wanted. If you want to do that, it would be wise to write up a new agreement indicating that you and the mother agree to exercise 50/50 custody and parent time and have that agreement made the new order of the court. 

If the mother refuses to agree to resume a 50/50 custody and parent time schedule, the question then becomes whether the court would grant your petition to revert back to a 50/50 schedule and resume that schedule for you and the child. 

I cannot speak for all jurisdictions and the laws that apply in each of them, but I can tell you that in the state of Utah, where I practice divorce and family law, simply moving closer to the other parent, so that joint equal (50/50) custody could be practicably unsuccessfully exercised, is usually not enough of a reason to modify the child custody and parent time order: 

Huish v. Munro, 191 P.3d 1242 (2008 UT App 283): 

To demonstrate a substantial change of circumstances . . . the asserted change must, therefore, have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship. 

Thorpe v. Jensen, 817 P.2d 387, 391 (Utah Ct.App. 1991): 

[The] need for caution was emphasized in Kramer v. Kramer, 738 P.2d 624 (Utah 1987), where the court noted that “a central premise of our recent child custody cases is the view that stable custody arrangements are of critical importance to the child’s proper development.” Id. at 626 (citations omitted). The “change of circumstances” threshold announced in Hogge and Becker is elevated to discourage frequent petitions for modification of custody decrees. The Hogge test was designed to “protect the custodial parent from harassment by repeated litigation and [to] protect the child from ‘ping-pong’ custody awards.” Hogge v. Hogge, 649 P.2d at 53-54. This policy is soundly premised. 

But there is this (from the case of Miller v. Miller, 480 P.3d 341 (2020 UT App 171): 

[I]f a court determines a petition as a whole clearly does not allege a change in circumstances that has any relation to the parenting skills or custodial relationship or the circumstances on which the custodial arrangement was based, it may dismiss the petition for failure to state a claim. See O’Hearon v. Hansen, 2017 UT App 214, ¶ 10, 409 P.3d 85; cf. Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that, to meet the materiality requirement, the change in circumstances must “have some material relationship to and substantial effect on parenting ability or the functioning of the presently existing custodial relationship” or “appear on their face to be the kind of circumstances on which an earlier custody decision was based”). 

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

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When it comes to divorce and family law firms, never hire on faith and hope

Do your research with due diligence. Interview a lot of different firms and attorneys (I’m talking 5 to 10, not just 2 or 3—you’ll never get a feel for the diversity of competence and incompetence unless you do). Don’t be offensive in your questioning, but do ask candid and serious questions of those you interview to get an idea of the lawyer’s (and of the office’s) personality and professional culture, and approach to the work.  

Lawyers are trained to be persuasive, so don’t be taken in by simply what they say or how well you perceive they say it. Most lawyers who are mediocre and incompetent can still charm you in conversation fairly well, if you’re not discerning.  

Don’t hire the least expensive or the most expensive attorney. Hire the best attorney you can afford, and if the best attorney you can afford is incompetent, then you either need to get more money for a good attorney or you’re probably better off with no attorney at all. Paying an incompetent attorney is just wasting your money.  

Don’t base your decision on online reviews. Great online lawyer reviews are easy to fake and usually are fake.  

Don’t hire based solely or primarily upon the recommendations of friends alone. Some friends have no idea who’s good or bad, but they “recommend” people so that they look smart and connected, not really to help you. Some friends surprisingly don’t know a good attorney from a bad one, even if they think they do.  

Even when you’ve done your best to ensure you hired a good attorney, it is virtually impossible to know whether you’ve hired a good or bad divorce and family lawyer until after you’ve worked with him/her for a few days or weeks. Pay close attention in those first days and weeks.  

“Hire slow, fire fast” is good advice for who your attorney is. Take your time to find who you believe—after conducting a solid investigation—is a good attorney before you hire one. In the unfortunate event you realize your attorney stinks, don’t beat yourself up about; many, many lawyers succeed by being deceitful. But once you discover your choice of attorney was a bad choice (a bad lawyer), replace him/her as fast as you reasonably can. Don’t try to reform your bad attorney. Odds are high that it won’t work. Don’t hold on to your incompetent attorney because of sunk costs. Your lousy attorney will only cost you more the longer he/she stays on your case. Hire slow, but fire (when you need to fire) fast.  

If your lawyer: 

  • (or a member of his/her staff) returns your calls and emails and text messages promptly and addresses all of your questions and concerns (your good, thoughtful questions and concerns—if you are the type who runs to the phone or the computer in a panic or on a whim with any and every question having failed to do your own homework first, expect your lawyer to get testy with you sooner than later); 
  • (or a member of his/her staff) promptly sends you complete copies of correspondence with opposing counsel and others involved in the case; 
  • (or a member of his/her staff) promptly sends you complete copies of everything he/she files with the court and that opposing counsel files with the court; 
  • (or a member of his/her staff) sends you drafts of the motions and other documents he/she is preparing to file with the court, so that you can review and comment on them and approve them for filing with the court before they are filed with the court; 
  • and his/her staff reflect a desire to do their best in every aspect of their work; 
  • checks in with you regularly to give you update and to see how you’re holding up; 
  • explains the legal process to you before you file your case and as your case unfolds; 
  • shows up to court on time, is clearly knowledgeable of the facts and the applicable law, and is prepared to argue your case zealously at hearings; 
  • isn’t afraid to tell you when your case or elements of your case is/are weak, and doesn’t offer or agree to do whatever you want “if the price is right”; and  
  • isn’t afraid to take your case to trial (in other words, isn’t champing at the bit to get you to agree to quick and dirty settlement), 

you likely have a good lawyer. A lawyer who delivers real value for the money you pay your lawyer. If your lawyer or his/her staff doesn’t do these all of these things, you likely have a bad lawyer.  

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

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Can a child who wants to, testify of his/her desires regarding the child custody award?

Am I, as an 11-year-old, allowed to go to court in a situation where my parents are divorced to see if I can get my dad to have full custody of me even though my mom doesn’t abuse me? 

What actually happens when a child wants to be heard on the subject of his/her desires regarding the child custody award? 

Great questions. I can’t speak for all jurisdictions, but I can tell you 1) what the law is for the state of Utah; and 2) what (in my experience) actually happens when a child wants to be heard on the subject of his/her desires regarding the child custody award. 

The law for the state of Utah. A child can testify as to the child’s preferences regarding the child custody award, if the court allows the child to testify: 

30-3-10(5). Custody of a child — Custody factors. 


(a) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony. 


(i) The court may inquire of the child’s and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. 

(ii) The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor. 


(i) If an interview with a child is conducted by the court pursuant to Subsection (5)(b), the interview shall be conducted by the judge in camera. 

(ii) The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody. 

So what do the words of § 30-3-10 mean? How does § 30-3-10 work (or how should it work)? Get ready to be upset. 

§ 30-3-10 provides that a child can testify, but only under circumstances that most Utah courts construe so restrictively as to make it all but impossible for a child to testify. How?  

Most Utah courts will say (I know because I am one of the few attorneys who thinks children who are smart enough and emotionally tough enough to testify intelligibly should be heard on the subject of the child custody award) that 1) the “extenuating circumstances that would necessitate the testimony of the child be heard” do not exist (and will, if the court has anything to say about it, essentially never exist under any circumstances); and 2) there is always another “reasonable method” to present the child’s testimony without actually presenting the child’s testimony directly from the child’s mouth to the judge’s ear. Generally, courts in Utah will bend over backward to avoid hearing from the child directly. And the “other reasonable method” means ensuring the questions posed to the child on the subject of child custody are not recorded, that the child’s purported answers are not recorded, that the child’s testimony is filtered through a third party, such as a guardian ad litem and/or a custody evaluator.  

If a court in Utah has ever found “that an interview with a child is the only method to ascertain the child’s desires regarding custody,” I am not aware of such a case. What is so frustrating to me is why would such a law exist? Why isn’t the law just the opposite, i.e., “Unless the evidence shows that the judge interviewing the child will not ascertain or at least help the court to ascertain the child’s desires regarding custody, the court shall interview the child to ascertain the child’s desires regarding custody.” 

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

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Why are so many attorneys seemingly against legal separation?

Why are so many attorneys seemingly against legal separation? I truly feel in my circumstance its best for me/us. Is it because they wont make as much money? We have already started the divorce process. Can it be switched? 

I can’t speak for all divorce attorneys, and I am not an attorney licensed to practice law in Illinois (I practice divorce and family law in Utah), but I can tell you why I personally don’t like going the temporary separation route. 

Too many people divorce needlessly. Too many people divorce only to discover that their spouses and marriages weren’t their problem and/or that divorce wasn’t the solution. I support desires and efforts to save marriage. While legal separation may sound to some like a good way to “get some space” to contemplate whether one should stay married or should divorce, I’ve found that: 

legal separation tends to damage a marriage far more than fostering its survival; and  

by the time one wants a legal separation, he or she really wants a divorce and is only postponing divorce out of fear or laziness or for the sake of appeasing the other spouse or “letter him/her down easy”.  

While I am sure there are people out there whose legal separation proved that “absence makes the hear grow fonder” and helped them “wake up” and realize that their marriage is worth saving, I know no such people. 

If I recall correctly, I’ve seen one legal separation end with the couple later reconciling. In every other legal separation situation, the couple has eventually divorced. So you can see where this is going: why go to the additional trouble, expense, and emotional ordeal of obtaining a legal separation order if you’re going to end up divorcing anyway and having to go through more of the same kind of effort, wait, expense, and pain again? 

I understand the desire to give the marriage every last reasonable opportunity to survive. I understand the desire to take every reasonable effort to save it. But at the same time, I don’t see the point in pouring time, effort, care, and money into what is for most a hopeless cause. **That stated,** I would much rather “waste” time, effort, care, and money on taking every reasonable effort to save my marriage if it meant having the peace of mind that I gave saving my marriage everything I could in an effort to save it before deciding that it was not worth saving or that I alone could not save it and concluding that divorce was the only remaining option. 

Are there divorce lawyers who discourage legal separation because they make (or believe they make) less money working on a legal separation instead of a divorce? I’m sure there are. But not all of us are out to take the client for all he or she is worth (you’d be wise to ensure you don’t hire a greedy lawyer, but there are some among us who are decent, caring, trustworthy professionals worth seeking out). In my experience, if one wants to do all he or she can to save his or her marriage, then working to improve yourself as a spouse, making changes in your family environment, and giving your best efforts to some good marriage counseling are certainly worthwhile. Legal separation rarely, if ever, helps improve a marriage. It tends to weaken and destroy a marriage.  

Utah Family Law, LC | | 801-466-9277 

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How long do you pay alimony in Utah?

The law governing the duration of alimony is pretty simple and straightforward: 

See Utah Code § 30-3-5, subsections (1)(c) and (11)(e): 

(1) As used in this section: 


(c) “Length of the marriage” means, for purposes of alimony, the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court. 



(i) Except as provided in Subsection (11)(e)(iii), the court may not order alimony for a period of time longer than the length of the marriage. 

(ii) If a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony. 

(iii) At any time before the termination of alimony, the court may find extenuating circumstances or good cause that justify the payment of alimony for a longer period of time than the length of the marriage. 

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


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Why is it so easy to get married, and so hard to get divorced?

Why is it so easy to get married, and so hard to get divorced? Shouldn’t it be the other way around? 

This is a perceptive question. 

It would not not be that hard to get divorced if you were to give up everything in the divorce. If you told your spouse, “I want a divorce so bad I’ll make this as easy for, and as advantageous to, you as possible by waiving any and all rights to the marital assets, spousal support, the kids, everything,” you could get divorced relatively quickly and without having to incur any attorney’s fees. Heck, your spouse might gleefully pay an attorney to draw the “my spouse is giving away the farm” divorce action and settlement agreement. Of course, while getting the divorce that way would be fast, easy, and cheap, you’d pay a dear personal price—in both the short and the long run—in almost every other aspect.  

When you think about it, there are many endeavors that are easy to enter but prove to be very difficult to finish or exit (or at least to finish or exit comfortably): 

  • college (easy to enroll, get loans), hard to finish, hard to pay off student loans, especially if you drop out and still have to pay the loans off 
  • business (easier to get into than to stay in, and brutal to experience a business failure) 

And marriage is another. The longer one is married, the harder a divorce usually is due to so much having been invested in a marriage of long duration. It’s easier for two single, childless people to marry than for two married people to divorce who acquired property/assets and incurred debt and who may have begotten minor children (to say nothing of the disruption divorce inflicts on the physical and emotional reliance upon each other that spouses develop over time). With this in mind, it’s hard to conceive a way by which we could reasonably and responsibly make easier than marrying the dividing the property/assets, apportioning responsibility for marital debts and obligations, and determining the custody of minor children in divorce.  

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

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New Laws Affecting Utah Divorce and Family Law in 2022

Here is a summary of new law affecting divorce and family law that was created by the Utah State Legislature in 2022: 

HB (House Bill) 122 1st Substitute, entitled “Family Terminology Amendments.” This bill amended language regarding marriage and legitimacy. That means terms like “legitimate” or “illegitimate” in the context of children born out of wedlock have been replaced with “legally recognized relationship.” As I’ve always said, why use one word when you can use three? And as I’ve also always said, “I know how to prevent stigmas attached to words: change the word!” Look how well that’s worked in the past! Your tax dollars at work.  

HB 175, entitled Protection of Animals Amendments. This bill modified the definition of “emotional distress” related to the offense of stalking to include significant mental or psychological suffering resulting from harm to a household pet. But wait, there’s more: it also provides that protection of an animal can be requested certain protective order request forms and protective orders, and it permits the court, when issuing certain protective orders, to enjoin the respondent from injuring, threatening to injure, or taking possession of certain animals.  

HB 231 1st Substitute, entitled “Fishing and Hunting Restrictions for Nonpayment of Child Support.” This bill: amended the restrictions for a license, permit, or tag related to fishing or hunting when an individual is delinquent in child support and makes certain accommodations for obtaining a hunting or fishing license if a child support payor is temporarily unable to pay child support due to transition to new employment. 

SB 74 3rd Substitute, entitled “Alimony Modifications”. This bill defined the term, “length of the marriage” to mean the  number of years from the day on which the parties are legally married to the day on which the petition  for divorce is filed with the court; it provides that if a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony. It also provides that if a party establishes that a current spouse cohabits with another individual during the pendency of the divorce action, the court: may not order the party to pay temporary alimony to the current spouse; and shall terminate any order that the party pay temporary alimony to the current spouse. 

SB 85 4th Sub, entitled “Protective Order and Civil Stalking Injunction Expungement”. This bill defined terms relating to the expungement of protective orders and stalking injunctions; makes statutory provisions for the expungement of protective orders and stalking injunctions retroactive; allows for the expungement of certain protective orders and stalking injunctions; provides the requirements for expunging certain protective orders and stalking injunctions; and addresses the distribution and effect of an order for expungement of certain protective orders and stalking injunctions. It’s about time. If the courts are going to hand out protective orders like stale candy, consistently flout the preponderance of evidence standard in favor of a “ 

SB 164, entitled “Marriage Solemnization Amendments”. This bill amended the list of individuals authorized to solemnize a marriage to include the state attorney general, the state treasurer, the state auditor, and members of the state’s congressional delegation. After all, haven’t we all felt it just plain common sense that the state treasurer, the state auditor, and members of the state’s congressional delegation ought to have the power to perform wedding ceremonies? I mean, how did we get along without this to this point? 

SB 217, entitled “Protective Order Revisions”. This bill clarifies that a protective order or civil stalking injunction may be filed in the county where a party is temporarily domiciled. 

SB 242, 1st Sub, entitled “Child Support Amendments”. This bill modifies the child support tables; provides the effective dates of the child support tables. 

SB 243 1st Sub, entitled “Parent-Time Amendments”. This bill: defines terms; modifies and clarifies parent-time schedules. More particularly, it specifies transfer time for Christmas holiday on December 27th at 7 p.m. Creates summer parent-time notice dates of May 1st and May 15th. 

Utah Family Law, LC | | 801-466-9277 

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What are the primary parenting issues of concern by the court?

What are the primary concerns of the courts in determining parenting issues? Why?

In Utah (and in no particular order), the court must consider the factors articulated in these sections of the Utah Code when making a legal and physical custody award: 

  1. § 30-3-10. Custody of a child — Custody factors.
  2. § 30-3-10.2. Joint custody order — Factors for court determination — Public assistance.
  3. § 30-3-34. Parent-time — Best interests — Rebuttable presumption.
  4. § 30-3-35.1. Optional schedule for parent-time for children 5 to 18 years of age.
  5. § 30-3-35.2. Equal parent-time schedule. 

If I were to create a list of all factors from the above-referenced Utah Code sections, this answer would be too long, which is why I have provided hyperlinks to the Code sections for your review. 

CONCERN FOR FATHERS. What fathers encounter far too often (not always, but far too often): denials of requests to maintain their already-existing rights of joint equal legal and physical custody that are contrary to the facts, contrary to the best interest of the children, irrational, biased, arbitrary, inequitable, discriminatory, and unconstitutional.  

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


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Taylor v. Taylor 2022 UT 35 – Divorce Arbitration








No. 20191090

Heard: April 13, 2022

Filed August 18, 2022

On Certification from the Court of Appeals

Third District, Summit County

The Honorable Teresa Welch

No. 174500181


Julie J. Nelson, Millcreek, Erin B. Hull, Salt Lake City, for appellant

Martin N. Olsen, Beau J. Olsen, Midvale, for appellee

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,


and JUDGE HARRIS joined.

Due to their retirement, JUSTICE HIMONAS and JUSTICE LEE did not



[*] JUSTICE DIANA HAGEN became a member of the Court on May 18, 2022 but sat as a visiting judge prior to her confirmation.



¶1 After litigating their divorce for a year, David Taylor asked his soon-to-be ex-wife, Jill Taylor, to arbitrate. David apparently hoped for an expeditious resolution that would allow him to receive favorable tax treatment of the alimony he was about to pay. After the arbitrator issued his decision, David moved the district court to invalidate the award under section 78B-11-107 of the Utah Uniform Arbitration Act, arguing that the arbitration agreement he proposed was invalid because it was contrary to public policy to arbitrate divorce actions. David alternatively asked the court to vacate the award, arguing that the arbitrator had manifestly disregarded the law. The district court denied David‘s motion.

¶2 The Utah Uniform Arbitration Act does not permit a party who participates in arbitration without objection to then contest an arbitration award by arguing that it is based on an infirm agreement to arbitrate. But even if David was able to contest the award, the arbitration agreement he sought was not invalid. Unless and until the Legislature provides additional guidance, the intersection of the Utah Uniform Arbitration Act and Utah family code permits parties to arbitrate the aspects of a divorce that the Taylors agreed to arbitrate. As for David‘s assertion that the arbitrator manifestly disregarded the law, even if we assume that is still a viable challenge to an arbitration award, David has not shown that the arbitrator manifestly disregarded the law. We affirm the district court.


¶3 In August 2017, Jill Taylor filed for divorce from her husband, David Taylor. Jill and David stipulated to joint legal and physical custody of their two children but were unable to agree on, among other things, alimony, child support, and the appropriate division of their assets.

¶4 David wanted to resolve the parties‘ remaining issues by the end of 2018 so that he could avoid changes to the tax treatment of alimony that were slated to take effect the following year. To expedite a resolution, David asked Jill to attend arbitration in lieu of trial. Jill obliged, and the parties signed an arbitration agreement. The agreement provided that the Utah Uniform Arbitration Act (UUAA) would apply. See UTAH CODE §§ 78B-11-101 to -131. The agreement also named a retired district court judge as the arbitrator.

¶5 The parties engaged in an arbitration process that saw the arbitrator meet with each party separately and repeatedly. The arbitrator reviewed various expert reports as well as documents that detailed the parties‘ employment history, earnings, and job prospects.

¶6 To determine Jill‘s income, the arbitrator reviewed evidence regarding Jill‘s past employment in finance and pharmaceutical sales. He also reviewed a report David‘s vocational expert prepared that detailed wage estimates for various jobs available to Jill based on Jill‘s qualifications and prior work experience. The arbitrator also spoke with Jill, who explained that she was currently working as an aide in the Park City School District and that she intended to seek employment as an elementary school teacher once she had completed her degree in elementary education.

¶7 After considering the parties‘ positions and submissions, the arbitrator issued an award. Among other things, the arbitrator‘s award calculated alimony, set the amount of child support, and divided the parties‘ assets.

¶8 As part of that decision, the arbitrator estimated Jill‘s future income. The arbitrator concluded that “[Jill] should be allowed to work in the field of her choice—education, and she should be given time to complete her degree.” He calculated Jill‘s income for 2019– 2021 based on her salary as an aide and her ability to find work during the summer, and for 2022 according to her ability to secure a full-time teaching position once she had completed her degree. As to alimony, the arbitrator awarded Jill spousal support based on the parties‘ current financial situations and spending needs, including Jill‘s tuition costs.

¶9 A few months after the arbitrator issued the award, David moved the district court to correct three mathematical miscalculations. The district court made two of those corrections and entered the corrected award.

¶10 Less than two months later, David changed counsel and moved the district court to invalidate the entire arbitration award pursuant to section 78B-11-107 of the UUAA.[1] David argued that “[a]n arbitration agreement is not valid or binding in the divorce context” for three “well-defined” policy reasons.

¶11 David first claimed that arbitration interfered with a court’s “inherent” and “nondelegable” authority to decide divorce issues. As David saw it, “[b]ecause parties cannot divest a court of jurisdiction by stipulati[on]” or delegation to a third party, it was necessarily true that they could not divest a court of jurisdiction by arbitration.

¶12 David next asserted that the UUAA permits modification of an arbitration award “only in . . . very limited circumstances,” and such a “bar against modif[ication] . . . is flatly against the policy of ensuring that district courts retain ongoing jurisdiction to modify divorce-related rulings.”

¶13 David additionally contended that the UUAA’s limited appeal procedures impermissibly restrict the parties’ statutory right to appeal the arbitrator‘s child support determination.

¶14 Alternatively, David asked the district court to vacate the arbitration award because the arbitrator manifestly disregarded the law—and thus exceeded his authority—when he calculated Jill’s imputed income.[2] David claimed that Utah law requires the arbitrator to consider a list of factors when calculating the parties’ incomes. See UTAH CODE § 78B-12-203(8)(b)(i)–(x). And David asserted that the arbitrator had substituted his “personal view” in place of those factors when he opined that Jill’s income should be based on her desire “to work in the field of her choice.”

¶15 David also argued that the arbitrator manifestly disregarded the law when he included Jill’s tuition costs in the alimony budget. David contended that those costs were “not a part of the parties’ standard of living during the marriage, nor [were they] a ‘need,’” and were thus “the epitome of an unnecessary expense, given that [Jill was] intending to pay to attend school so that she may earn less than she already earns.”

¶16 Jill moved the district court to confirm the arbitration award and enter a decree of divorce.

¶17 A court commissioner heard the parties’ motions. The commissioner denied David’s motion and granted Jill‘s. The commissioner concluded that contrary to David‘s position, public policy supports the arbitration of divorce cases. She reasoned that arbitration does not interfere with a court‘s continued jurisdiction because “[o]nce the arbitration award is reduced to a Decree of Divorce, the [c]ourt maintains jurisdiction to modify the decree based upon a material and substantial change in circumstances.” The commissioner also concluded that “waiving the right to appeal is not contrary to law” because parties routinely waive their right to appeal “when the parties stipulate and a Decree of Divorce is entered.”

¶18 As to David’s claim that the arbitrator had manifestly disregarded the law, the commissioner determined that the arbitrator’s calculation regarding Jill‘s income was “rational and evidence based.” She explained that Utah law does not require a court to calculate income according to “the highest level.” Rather, “[t]he imputation need[ed] to be reasonable and equitable,” and “[i]t [was] not unreasonable to allow [Jill] to select a job that gives her a decent living rather than maximizing what a vocational evaluator opines.” The commissioner also upheld the arbitrator’s alimony award. The commissioner explained that “the standard of living during the marriage was such that [Jill] did not need to work full time.” Therefore, “[t]he fact that tuition was provided so [Jill] could increase her earning potential, and that alimony was actually limited to the same time period as child support, was reasonable and equitable.”

¶19 David asked the district court to overrule the commissioner’s decision and made basically the same arguments he had included in his motion to invalidate or vacate the arbitration award.

¶20 The district court denied David’s request to overrule the commissioner and confirmed the arbitration award. The court held that “Utah law does not preclude divorces from being arbitrated” for four reasons. The court first determined that “the plain language of the [UUAA] does not preclude divorce actions from being arbitrated,” and “had the Utah legislature intended for divorce actions to be precluded from being arbitrated, it would have indicated so.” The court next opined that the same public policies that favor arbitration in the civil context—”just, speedy, and inexpensive outcomes”—also “support parties being able to resolve their divorce cases in Utah via arbitration.” The court stated that “[i]n fact, [David] invoked and relied on these policy considerations by proactively requesting to arbitrate this matter . . . as opposed to setting it for trial.” The court further reasoned that “the plain language of the [UUAA] indicates that district court judges retain jurisdiction and the authority to vacate or amend arbitrations that run afoul of Utah law.” Therefore, the court said, “[i]t follows that for divorce cases that have been arbitrated, a district court . . . cannot change or amend arbitration awards if [it] merely disagree[s] with the arbitrator’s findings and conclusions” but it can “vacate or amend arbitration awards that contain provisions that run contrary to established Utah law.” The court finally concluded that even if “any substantive appellate rights are waived” by participation in arbitration, that waiver “is not contrary to Utah law, as Utah law indicates that there are various procedures wherein parties may agree to pursue expedited outcomes of their matters in exchange for giving up certain appellate rights.”

¶21 The district court also concluded that the arbitrator had not manifestly disregarded the law. The court determined that “[the arbitrator]’s method of imputing [Jill]‘s income complied with Utah law.” The district court reasoned that Utah law required the arbitrator to calculate Jill‘s income by considering the relevant statutory factors, which, according to the court, “do[] not define ’employment potential and probable earnings‘ as being the equivalent of the highest or maximum amount of salary that a party could attempt to obtain” and “recognize[] that a parties‘ ’employment potential and probable earnings‘ encompass[] more considerations than just salary calculations for any given job.” And the court held that the arbitrator had “effectively considered and applied the pertinent statutory factors” and “was not unreasonable” in permitting Jill to work in the field of her choice, which would allow for “more stable and ongoing” employment than if the arbitrator “require[d] [Jill] to work a job in a field that she had not been working in for many years.”

¶22 Additionally, the district court opined that “[the arbitrator]‘s alimony determinations” also “complied with Utah law.” The court reasoned that the arbitrator acted in accordance with the statute when he based the alimony award on expenses, such as Jill‘s tuition costs, that “existed at the time of the arbitration.” The district court also noted that the arbitrator had “limited [David]‘s alimony obligation—i.e., . . . [he] did not order an alimony award for the length of the marriage, nor did [he] order that the alimony award . . . remain the same regardless of [Jill]‘s efforts to obtain employment as a teacher.”

¶23 In sum,” the district court concluded, “[the arbitrator]‘s findings and decisions regarding [Jill]‘s imputed income and the alimony award were informed, reasonable, equitable, and complied with Utah law.” David appeals.


¶24 “In reviewing the order of the district court confirming, vacating, or modifying an arbitration award, we grant no deference to the court‘s conclusions of law, reviewing them for correctness.” Softsolutions, Inc. v. Brigham Young Univ., 2000 UT 46, ¶ 12, 1 P.3d 1095; see also Westgate Resorts, Ltd. v. Adel, 2016 UT 24, ¶ 9, 378 P.3d 93 (“When we hear an appeal from a district court‘s review of an arbitration award, . . . we review the district court‘s interpretation of the UUAA . . . for correctness, without deference to its legal conclusions.”).


  2. Utah Law Does Not Permit David to Contest the Validity
    of the Arbitration Agreement After He Participated in
    Arbitration Without Objection

¶25 David asks us to reverse the district court, set aside the arbitration agreement and award, and “order the district court to conduct a regular divorce trial.”

¶26 Section 78B-11-107 of the UUAA, the provision on which David hangs his appeal, states in pertinent part: “An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” UTAH CODE § 78B-11-107(1).

¶27 David reads section 78B-11-107 to mean that a matter is not eligible for arbitration if there is “a ground that exists at law or in equity for the revocation of a contract.” David argues that if a matter is not eligible for arbitration, the parties‘ arbitration agreement—and any arbitration award flowing from that agreement—is invalid.

¶28 “When interpreting a statute, our primary objective is to ascertain the intent of the legislature,” “[t]he best evidence” of which “is the plain language of the statute itself.” McKitrick v. Gibson, 2021 UT 48, ¶ 19, 496 P.3d 147 (alteration in original) (citations omitted). “[W]e read the plain language of the statute as a whole[] and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” State v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (alterations in original) (citation omitted).

¶29 By its plain language, section 78B-11-107 speaks to the “valid[ity], enforceab[ility], and irrevocab[ility]” of an arbitration agreement. See UTAH CODE § 78B-11-107(1). Section 78B-11-107 establishes the standard by which a court may judge—or the parties may contest—the existence of a “valid, enforceable, and irrevocable” arbitration agreement. But while section 78B-11-107 instructs us on how to assess the validity of an arbitration agreement, it does not speak to what to do with an arbitration award.

¶30 Other sections of the UUAA, however, do tell us what to do when a party challenges an arbitration award. Cf. Jenkins v. Percival, 962 P.2d 796, 799–800 (Utah 1998) (explaining that “[s]eparate parts of an act should not be construed in isolation from the rest of the act,” and “constru[ing]” two sections of the UUAA “in tandem so as to give full effect to the intended scope of the Act” (citation omitted)). UUAA section 78B-11-123, for instance, explains that a court must confirm an arbitration award “unless the award is modified or corrected . . . or is vacated” pursuant to the grounds set forth in section 78B-11-124. One of those grounds permits a court to vacate an arbitration award “if[] . . . there was no agreement to arbitrate, unless the person [contesting the award] participated in the arbitration proceeding without raising an objection [as to lack or insufficiency of notice] not later than the beginning of the arbitration hearing.” UTAH CODE § 78B-11-124(1)(e) (emphasis added).

¶31 David does not argue, in the words of section 78B-11­124(1)(e), that “there was no agreement to arbitrate.” He instead argues that the arbitration agreement, though existing, is invalid. Stated differently, David contends that section 78B-11-124(1)(e) does not govern his challenge because he had an agreement to arbitrate, just not a valid one. This argument elevates form over function. An argument that there is no arbitration agreement differs in degree, but not kind, from an argument that there is no valid arbitration agreement. Therefore, when a party seeks to set aside an arbitration award by contesting the validity of the arbitration agreement, that claim must be analyzed under the strictures of section 78B-11­124(1)(e).

¶32 Importantly, then, if a party participates in arbitration without proper objection, she is unable to challenge the resulting arbitration award for want of a valid arbitration agreement.[3] Section 78B-11-107 is simply not a mechanism that allows a party to see what result she gets in arbitration before deciding to contest the validity of the arbitration agreement.

¶33 David did not object to arbitration. He asked for it. And without proper objection, see id. § 78B-11-124(1)(e), David cannot rely on section 78B-11-107 to invalidate the arbitration award.[4]

  1. Divorce Cases Are Arbitrable

¶34 David lost the chance to contest the arbitration agreement and award when he participated in arbitration without objection, and so we affirm the district court‘s denial of David‘s motion to invalidate. But we recognize that even if we were to reach the merits of David‘s argument, it would still fail.

¶35 David argues that the UUAA and Utah divorce law conflict such that divorce cases are not eligible for arbitration. He claims that family code and case law impose a “nondelegable duty” on district courts to make and modify final decisions regarding alimony, property division, child support, and custody. David contends that this is incompatible with the UUAA, which, according to David, “does not allow a court to supplant its own judgment for that of the arbitrator” and “does not allow ongoing jurisdiction for modification.” And he asks us to resolve this conflict by concluding that the “more particular” divorce law prevails over “the general Arbitration Act.” See, e.g.Lyon v. Burton, 2000 UT 19, ¶ 17, 5 P.3d 616 (“[A] statute dealing specifically with a particular issue prevails over a more general statute that arguably also deals with the same issue.”).

¶36 Jill claims there is no conflict between divorce law and the UUAA. As she reads it, “[t]he plain language of the [UUAA] shows that there is nothing in the statute to indicate that divorce cases should be precluded from arbitration.” Jill also argues, among other things, that the UUAA does not divest a district court of its authority to ensure that arbitration awards are equitable and based in law and that family code expressly preserves a court‘s continuing jurisdiction to modify a divorce decree.

¶37 We begin our analysis “by looking at the plain language of the statute[s] because it is ‘the best evidence of legislative intent.‘” Rosser v. Rosser, 2021 UT 71, ¶ 42, 502 P.3d 294 (citation omitted). “Our first undertaking in this regard is to assess the language and structure of the statute[s].” State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In so doing, “[w]e presume that the legislature used each word advisedly, and that the expression of one [term] should be interpreted as the exclusion of another . . . .” Bountiful City v. Baize, 2021 UT 9, ¶ 42, 487 P.3d 71 (second alteration in original) (citation omitted) (internal quotation marks omitted).

¶38 The UUAA governs the arbitration process in Utah. See UTAH CODE § 78B-11-101 to -131. It “applies to any agreement to arbitrate made on or after May 6, 2002.”[5] UTAH CODE § 78B-11-104(1) (emphasis added). The UUAA further states that “[a]n agreement . . . to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” Id. § 78B-11-107(1) (emphasis added). More simply put, the UUAA applies to “any agreement to arbitrate” “any existing or subsequent controversy arising between the parties to the agreement.” Id. §§ 78B-11-104(1), 107(1) (emphases added); see also Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 33, 44 P.3d 663 (“Under the [UUAA], parties can agree to arbitrate any controversy.”). The UUAA does not expressly exempt any action or issue, including those related to divorce, from its provisions. Thus, by the UUAA‘s plain language, the Taylors‘ agreement to arbitrate certain aspects of their divorce—alimony, property division, and child support—falls into the category of “any agreement to arbitrate.”

¶39 Neither Utah‘s family code nor case law, moreover, squarely addresses the arbitrability of divorce issues. Utah Code section 30-3-10.9—the only section of our family code in which the word “arbitration” appears—states that divorcing parents must include in their parenting plan “[a] process for resolving disputes,” such as “counseling,” “mediation or arbitration by a specified individual or agency,” or “court action.” UTAH CODE § 30-3-10.9(3)(a)–(c). That section also states that “the district court has the right of review from the dispute resolution process.” Id. § 30-3-10.9(4)(f). But while the code seemingly allows divorcing parties to submit “future disputes” over the provisions of a parenting plan to non-binding arbitration, it does not explicitly forbid—or permit—parties from agreeing to arbitrate their divorces.

¶40 David argues that plain language, by itself, does not answer the question. And he credibly points to sections of Utah family law that seem to conflict with the provisions of the UUAA dealing with vacatur and modification. He argues that these conflicts require us to conclude that it is contrary to public policy for divorcing parties to submit their alimony, property division, child support, and custody-related disputes to arbitration.

¶41 We take David’s point. A plain language look at the UUAA and our family code spotlights two statutory schemes that do not speak to each other. The Legislature could have spelled out, either in the UUAA or our family code, if, when, and what portions of a divorce may be submitted to arbitration. It did not. But that does not end our inquiry.

¶42 “If,” after looking at plain language, “there is doubt or uncertainty as to the meaning or application of the provisions” at issue, Osuala v. Aetna Life & Cas., 608 P.2d 242, 243 (Utah 1980), “we attempt to construe [the provisions] in harmony, and such that ‘effect is given to every provision,’” I.M.L. v. State, 2002 UT 110, ¶ 26, 61 P.3d 1038 (citations omitted); see also Field v. Boyer Co., 952 P.2d 1078, 1081 (Utah 1998) (“[I]t is the Court‘s duty to harmonize and reconcile statutory provisions, since the Court cannot presume that the legislature intended to create a conflict.” (citation omitted)). We accomplish this task by “analyz[ing] the [statutes] in [their] entirety, in the light of [their] objective, and . . . in accordance with the legislative intent and purpose.” Osuala, 608 P.2d at 243 (footnote omitted). In other words, we try to read the statutes together in a way that best keeps faith with what the Legislature wanted those statutes to accomplish.

  1. The UUAA Provisions Limiting Judicial Review Did Not Prevent the Taylors from Submitting Their Divorce Issues to Arbitration

¶43 The first area of potential conflict David highlights is the ability of the district court to disregard an arbitration award before it is entered. David contends that our divorce law demands that a district court retain final authority to reject an agreement between the parties or input by a third party “based on equity.”[6] David claims that the UUAA, in contravention of divorce law, confines a district court‘s authority to disturb an arbitration award to the “limited circumstances” laid out in section 78B-11-124. In other words, David argues that in the divorce context, an agreement between the parties or input by third parties can only constitute a recommendation to the district court, whereas under the UUAA, they are binding and difficult to set aside.

¶44 As an initial matter, we note the strong state policies underlying both the UUAA and Utah divorce law. As to arbitration, our law has long “favor[ed] arbitration as a speedy and inexpensive method of adjudicating disputes” and “easing court congestion.” Robinson & Wells, P.C. v. Warren, 669 P.2d 844, 846 (Utah 1983); accord Giannopulos v. Pappas, 15 P.2d 353, 356 (Utah 1932). We have held that “judicial review of arbitration awards should not be pervasive in scope or susceptible to repetitive adjudications,” but rather “strictly limited to the statutory grounds and procedures for review.” Robinson & Wells, 669 P.2d at 846; see also Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941, 947 (Utah 1996) (“A trial court faced with a motion to vacate or modify an arbitration award is limited to determining whether any of the very limited grounds for modification or vacatur exist.”); Duke v. Graham, 2007 UT 31, ¶ 8, 158 P.3d 540 (“A district court‘s review of an arbitration award should be narrowly confined to those grounds established by statute.”). “As a general rule,” therefore, “an arbitration award will not be disturbed on account of irregularities or informalities in the proceeding or because the court does not agree with the award as long as the proceeding was fair and honest and the substantial rights of the parties were respected.” DeVore v. IHC Hosps., Inc., 884 P.2d 1246, 1251 (Utah 1994).

¶45 Utah family law is likewise driven by strong public policy. Foremost among these is the bedrock understanding that equity should prevail when a marriage dissolves. See UTAH CODE § 30-3-5(1) (2018), amended by and renumbered as UTAH CODE § 30-3-5(2) (2022) (“When a decree of divorce is rendered, the court may include in the decree of divorce equitable orders.” (emphasis added)); see also Iverson v. Iverson, 526 P.2d 1126, 1127 (Utah 1974) (“[A]ll aspects of proceedings in divorce matters are equitable . . . .”); Lord v. Shaw, 665 P.2d 1288, 1291 (Utah 1983) (“A divorce action is highly equitable in nature . . . .”). When making divorce-related decisions, therefore, a district court is generally given “broad discretionary powers” to craft an equitable result. Despain v. Despain, 610 P.2d 1303, 1305–06 (Utah 1980); see also UTAH CODE § 30-3-5(8)(e) (2018), amended by and renumbered as UTAH CODE § 30-3-5(10)(d) (2022) (requiring a court to “consider all relevant facts and equitable principles” in determining alimony).

¶46 David correctly points out that we have held that an agreement between the parties serves only as a recommendation to the district court. See, e.g.Callister v. Callister, 261 P.2d 944, 946, 948– 49 (Utah 1953) (“[A]n agreement or stipulation between parties to a divorce suit . . . is not binding upon the court in entering a divorce decree, but serves only as a recommendation. . . . [T]he law was intended to give courts power to disregard the stipulations or agreements of the parties in the first instance and enter judgment . . . as appears reasonable . . . .”). And he contends that “[b]ecause parties cannot divest a court of jurisdiction by stipulating to an agreement, it follows that they cannot divest a court of jurisdiction by delegating that task to . . . an arbitrator.”

¶47 Those cases stand for the proposition that parties cannot insulate stipulations they make regarding property division and alimony from judicial review. And we stand by that law. But we conclude that, in the absence of an express statutory prohibition, when divorcing parties make an informed and voluntary decision to submit their alimony and property-related disputes to a neutral third-party arbitrator under the UUAA, the strong policies allowing parties to choose to arbitrate their disputes overtake those policies favoring more robust judicial review.[7]

¶48 Arbitrations concerning alimony and division of marital property do not differ substantially from the types of cases that are routinely arbitrated. See, e.g.HITORQ, LLC v. TCC Veterinary Servs., Inc., 2021 UT 69, 502 P.3d 281 (compelling arbitration of a claim for dissolution of a veterinary clinic); Harold Selman, Inc. v. Box Elder Cnty., 2011 UT 18, 251 P.3d 804 (concluding that the Ombudsman‘s Office has statutory authority to arbitrate an ownership dispute between private property owners and Box Elder County); Shipp v. Peterson, 2021 UT App 25, 486 P.3d 70 (reinstating an arbitration award granting life insurance proceeds to listed beneficiary). In both camps of cases, adult parties—often aided by counsel—agree to have a neutral third party decide what is equitable. The policies favoring equitable decision-making that animate our family law do not disappear, but that work is outsourced to a neutral third party. And safeguards remain in place to revisit the outcome of the arbitration if the process is, among other things, tainted by fraud, corruption, or misconduct, or if the arbitrator exceeds her authority. See UTAH CODE § 78B-11-124(1).

¶49 Put another way, while we continue to recognize our state‘s policy in favor of ensuring that an arbitration award addressing alimony or marital property is equitable, we do not find that policy to be so strong as to require us to treat divorcing spouses— particularly those represented by counsel—differently from other parties who want to arbitrate their disputes. Therefore, until the Legislature amends one or the other of those statutory schemes to provide otherwise, we see no reason to revoke the trust we place in arbitrators to decide a property dispute between two parties, dealing at arm‘s length and capable of contracting, just because those parties are (or were) married. We thus conclude that nothing in the Utah family code prevents parties from agreeing to arbitrate their alimony and property disputes under the UUAA. Nor does any provision of the family code conflict with allowing the parties to agree to limit judicial review of the resulting award to those grounds given in section 78B-11-124 of the UUAA. See UTAH CODE § 78B-11-124(1).

¶50 Other courts have reached similar conclusions. The Supreme Court of New Jersey, for example, has concluded that “parties may bind themselves in separation agreements to arbitrate disputes over alimony.” Faherty v. Faherty, 477 A.2d 1257, 1262 (N.J. 1984). The court explained, “It is fair and reasonable that parties who have agreed to be bound by arbitration in a formal, written separation agreement should be so bound. Rather than frowning on arbitration of alimony disputes, public policy supports it.” Id. In line with this reasoning, the Faherty court held that “[a]s is the case with other arbitration awards,” an award addressing alimony is subject to the limited judicial review provided in its arbitration act. Id.

¶51 The Idaho Court of Appeals has, for many of the same reasons, decided that when divorcing parties submit their property-related disputes to arbitration, “judicial review of the award . . . is distinctly limited” to the statutory grounds provided in its arbitration act. Hughes v. Hughes, 851 P.2d 1007, 1009 (Idaho Ct. App. 1993). The Hughes court saw no difference between arbitration agreements between spouses and arbitration agreements between other parties who “have decided to substitute the final and binding judgment of an impartial entity conversant with the business world for the judgment of the courts.” Id. (citation omitted). And it held these agreements to the same standard: “Having chosen to submit the property division question to an arbitrator for resolution, the parties limited their recourse for judicial review.” Id. at 1009–10; see also Kelm v. Kelm, 623 N.E.2d 39, 41–42 (Ohio 1993) (pointing out its past “recogni[tion]” of “the validity and enforceability of agreements to arbitrate in many areas of the law,” as well as “the benefits of arbitration,” and “see[ing] no reason why” agreements to arbitrate domestic relations matters, including agreements to arbitrate alimony, “should not be included”); Miller v. Miller, 620 A.2d 1161, 1163–64 (Pa. Super. Ct. 1993) (determining that “parties should be able to settle their domestic disputes out of court,” and that “parties who have agreed to arbitrate should be bound by that decision”); Kovacs v. Kovacs, 633 A.2d 425, 432 (Md. Ct. Spec. App. 1993) (holding that arbitration awards regarding “alimony and property issues, if otherwise valid,” may “be adopted without further consideration”); Bandas v. Bandas, 430 S.E.2d 706, 708 (Va. Ct. App. 1993) (noting that “[n]owhere in the Uniform Arbitration Act, as adopted by Virginia, are courts required to review an arbitration agreement in a domestic relations context with more scrutiny than other disputes” and thus restricting judicial review of arbitration agreements in domestic relations cases to “the standard set forth” in its Uniform Arbitration Act).

¶52 While we wait for further legislative clarity, we join these jurisdictions in concluding that divorcing parties may agree to subject their alimony and marital property disputes to the benefits and limitations of the UUAA.

¶53 The outcome changes in the child support and custody context. By statute, these issues are determined by the best interest of the child. See UTAH CODE § 30-3-5(5)(a) (2018), amended by and renumbered as UTAH CODE § 30-3-5(7)(a) (2022); id. § 78B-12-210(3). We have stated that parties may not agree to divest a district court of its responsibility to ensure that decisions concerning child support and custody are in the best interests of the child.

¶54 In In re E.H., for example, “[w]e granted certiorari to consider the custody of a young boy, E.H.,” in light of a stipulation between E.H.‘s biological mother and adoptive parents “assigning a psychologist the task of making recommendations concerning E.H.‘s best interests.” 2006 UT 36, ¶¶ 1, 3, 137 P.3d 809. We considered, specifically, “whether the stipulation . . . was an impermissible delegation of authority to a third party.” Id. ¶ 3.

¶55 We explained that while “the law favors the settlement of disputes,” id. ¶ 20, “there are certain agreements that so compromise the core responsibilities of the court that they cannot be honored,” id. ¶ 21. And we concluded,

The stipulation between the mother and the adoptive parents did not unconstitutionally strip the district court of core functions because the district court did not surrender to [the psychologist] its authority to enter a custody order. Rather, the court merely agreed to follow a process for the determination of the best interests of E.H. and to uphold this process so long as it adequately served that end.

Id. We thus “ultimately upheld the stipulation because the parties‘ arrangement ‘adequately served [the] end‘ of determining E.H.‘s best interest and the district court had ‘satisf[ied] itself that [the psychologist]‘s recommendations were properly arrived at.‘” R.B. v. L.B., 2014 UT App 270, ¶ 14, 339 P.3d 137 (alterations in original) (quoting In re E.H.2006 UT 36, ¶¶ 21, 28). “[We] further held that even when the parties in a custody dispute agree to be bound by an evaluator‘s findings, the district court retains ‘the ultimate authority to preside over the proceedings, to satisfy itself that [the evaluator‘s] recommendations were properly arrived at, and to enter a final order.‘” Id. (second alteration in original) (quoting In re E.H.2006 UT 36, ¶ 28).

¶56 Following In re E.H.‘s lead, the court of appeals has concluded “that parties cannot stipulate away the district court‘s statutory responsibility to conduct a best-interest analysis.” Id. ¶ 16. The court of appeals observed that “Utah law has recognized that in the context of a child‘s well-being, interests in finality rank below the child‘s welfare,” and that “[t]he same logic applies to judgments predicated on stipulated agreements.” Id. ¶ 17; see also Cox v. Hefley, 2019 UT App 60, ¶ 26, 441 P.3d 769 (reaffirming R.B.).

¶57 There is another reason why, absent express legislative authorization, arbitration awards dealing with child custody and support must be seen as non-binding recommendations to the district court. “Arbitration agreements are creatures of contract.” Createrra, Inc. v. Sundial, LC, 2013 UT App 141, ¶ 8, 304 P.3d 104. As such, arbitration agreements “bind only those who bargain for them.” Bybee v. Abdulla2008 UT 35, ¶ 8, 189 P.3d 40. And Utah law does not permit a parent to bargain away their child‘s right to have a district court decide the child‘s best interests.

¶58 Under Utah law, for example, “a parent cannot release his or her minor child‘s prospective claims for negligence.” Rutherford v. Talisker Canyons Fin. Co., 2019 UT 27, ¶ 15, 445 P.3d 474 (reaffirming our decision in Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, superseded by statute, UTAH CODE § 78B-4-201 to -203, as stated in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984). Taking cues from “Utah law provid[ing] various checks on parental authority to ensure a child‘s interests are protected,” and from the absence of any law “granting parents in Utah a general[,] unilateral right to compromise or release a child‘s existing causes of action without court approval or appointment,” we reasoned that preinjury releases for negligence signed by a parent on behalf of a minor child violate “public policies favoring protection of minors with respect to contractual obligations.” Hawkins, 2001 UT 94, ¶¶ 11, 12.

¶59 The Superior Court of Pennsylvania has voiced similar concerns about divorcing parents contracting away a child‘s right to have a court review decisions affecting the child‘s best interest. In line with these concerns, that court concluded that a trial court must be able to ensure that an arbitrator‘s custody determinations are in the best interest of the child. Miller v. Miller, 620 A.2d 1161 (Pa. Super. Ct. 1993). The superior court opined,

Parties to a divorce action may bargain between themselves and structure their agreement as best serves their interests. They have no power, however, to bargain away the rights of their children. Their right to bargain for themselves is their own business. They cannot in that process set a standard that will leave their children short. Their bargain may be eminently fair, give all that the children might require and be enforceable because it is fair. When it gives less than required or less than can be given to provide for the best interest of the children, it falls under the jurisdiction of the court‘s wide and necessary powers to provide for that best interest. It is at best advisory to the court and swings on the tides of the necessity that the children be provided. To which the inter se rights of the parties must yield as the occasion requires.

Id. at 1165–66 (quoting Knorr v. Knorr, 588 A.2d 503, 505 (Pa. 1991) (addressing agreements between parents concerning child support)); see also Kovacs, 633 A.2d at 431 (concluding that “the chancellor‘s responsibility to ensure the best interests of the children supersedes that of the parents” and requiring a chancellor to determine that an arbitrator‘s decision is in the best interests of the child before entering it).

¶60 The Supreme Court of New Jersey has also recognized that “[t]he right of parents to the care and custody of their children is not absolute.” Fawzy v. Fawzy, 973 A.2d 347, 358 (N.J. 2009) (alteration in original) (citation omitted). “Indeed,” the court noted, “the state has an obligation, under the parens patriae doctrine, to intervene where it is necessary to prevent harm to a child.” Id. at 358–59 (footnote omitted). Relying on this doctrine, t9 Had David argued that the arbitrator‘s decision on child support was not in the best interests of the children, our conclusion might have triggered a remand. But at no point—either before the district court or on appeal—has David argued that the arbitration award was contrary to the children‘s best interests.1.he court concluded that while “the right to arbitrate child custody and parenting time serves an important family value,” the review of an arbitration award is subject to judicial review beyond “the confines of [New Jersey‘s] Arbitration Act” when “there is a claim of adverse impact or harm to the child.” Id. at 360–61. Notably, New Jersey‘s harm standard poses “a significantly higher burden than a best-interests analysis,” requiring a party to allege a level of harm akin to “grant[ing] custody to a parent with serious substance abuse issues or a debilitating mental illness.” Id at 361.

¶61 We note that some states have expressed these concerns and come out differently. The Supreme Court of South Carolina, for instance, has concluded that “arbitration of children‘s issues is not permitted.” Singh v. Singh, 863 S.E.2d 330, 334 (S.C. 2021). The Singh court explained that “[l]ongstanding tradition of this state places the responsibility of protecting a child‘s fundamental rights on the court system,” and that “[p]arents may not attempt to circumvent children‘s rights to the protection of the State by agreeing to binding arbitration with no right of judicial review.”[8] Id.see also Kelm, 749 N.E.2d at 301–03 (allowing arbitration of child support issues, but not of custody issues because it “advances neither the children‘s best interests nor the basic goals underlying arbitration”).

¶62 Harmonizing the statutory schemes and recognizing the strong policies underlying the protection of children and the UUAA leads us to a decision like that reached in Pennsylvania and New Jersey—agreements to arbitrate child support and custody are not contrary to public policy. But any award that flows from these agreements must be in the best interests of the child. A district court retains the authority to ensure that an arbitration award addressing child support or custody satisfies the best-interests standard and may hear a challenge to the arbitration award on that basis.[9]

  1. A Court Retains Continuing Jurisdiction to Modify an Arbitration Award in a Divorce Case Pursuant to Utah Code Section 30-3-5

¶63 David also argues that the UUAA and Utah divorce law conflict in another area—modification. David contends that under the UUAA, a district court can modify an arbitration award “only under limited circumstances involving minor procedural, mathematical, or factual errors, and can only do so within ninety days.” “But in the divorce context, district courts must retain jurisdiction forever to enter modified decrees ‘as is reasonable and necessary‘ or ‘based on a substantial change in circumstances,‘ or when the ‘best interests‘ of the child so require.” (Citations omitted.) (Internal quotation marks omitted.)

¶64 As David points out, the UUAA indicates that a court may modify or correct an arbitration award for only those reasons it sets forth. See UTAH CODE § 78B-11-125. Family code, on the other hand, provides that a district court retains continuing jurisdiction to modify any divorce-related orders. Specifically, Utah Code section 30-3-5 states that a court “has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child‘s support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.” Id. § 30-3-5(3) (2018), amended by and renumbered as UTAH CODE § 30-3-5(5) (2022); see also id. § 78B-12-210(9)(a) (2008), amended by UTAH CODE § 78B-12-210 (2022). Under that same section, a court also “has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.” Id. § 30-3-5(8)(i)(i) (2018), amended by and renumbered as UTAH CODE § 30-3-5(11)(a) (2022) (stating that a court has continuing jurisdiction to make such changes and new orders “based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree”). Under our family code, therefore, a divorce court “retains continuing jurisdiction over the parties, and power to make equitable redistribution or other modification of the original [divorce] decree as equity might dictate.” Despain, 610 P.2d at 1305; see also Potts v. Potts, 2018 UT App 169, ¶ 13, 436 P.3d 264 (“[D]ivorce courts are well established as courts of equity that retain jurisdiction over the parties and subject matters for the purposes equity may demand.” (citation omitted)).

¶65 We considered the trial court‘s powers to modify a divorce decree in Barraclough v. Barraclough, 111 P.2d 792 (Utah 1941) (per curiam). There, a divorcing couple “entered into a written stipulation” setting alimony. Id. at 792 (internal quotation marks omitted). The trial court granted the divorce and based the alimony award on the parties‘ stipulation. Id. at 792–93. Five months later, one of the parties “petitioned the lower court to modify the decree as to alimony.” Id. at 793 (internal quotation marks omitted). The trial court denied the petition, “determin[ing] that the ‘stipulation‘ . . . constituted ‘a lump sum, complete and final settlement of all alimony . . ., and that such settlement ha[d] become a final judgment as to alimony.” Id.

¶66 We reversed the trial court. We explained,

In a divorce action the trial court should make such provision for alimony as the present circumstances of the parties warrant, and any stipulation of the parties in respect thereto serves only as a recommendation to the court. If the court adopts the suggestion of the parties it does not thereby lose the right to make such modification or change thereafter as may be requested by either party based on some change in circumstances warranting such modification.

Id.see also Jones v. Jones, 139 P.2d 222, 224 (Utah 1943) (concluding that the ability of a divorce court to modify an alimony award based upon the parties‘ stipulation “can no longer be considered an open question in this State” under Barraclough).

¶67 The court of appeals has relied, in part, on our holding in Barraclough to conclude that even a “non-modification provision [does] not divest the court of its continuing jurisdiction” to modify a divorce decree. Sill v. Sill, 2007 UT App 173, ¶ 9, 164 P.3d 415. In Sill v. Sill, “the parties reached a stipulation and property settlement agreement,” under which the parties agreed to monthly alimony and “the division of real and personal properties.” Id. ¶ 3. “The trial court approved the Agreement and incorporated its provisions into the parties‘ . . . divorce decree.” Id. ¶ 4. Later, one of the parties sought to modify the decree by “reduc[ing] the amount of alimony he agreed to pay.” Id. ¶ 5. The trial court dismissed the petition, concluding that “both parties had waived the right to modify any terms of the Agreement.” Id. ¶¶ 5–6.

¶68 To examine the effect of the parties‘ non-modification provision, the court of appeals first turned to Utah Code section 30­3-5 and noted “the significance of the legislature‘s inclusion of the adjective ‘continuing‘ to refer to the court‘s jurisdiction.” Id. ¶ 10. The court next turned to supreme court case law, noting that we had repeatedly held that “parties cannot by contract divest a court of its statutorily granted subject matter jurisdiction to make alimony modifications, even if the parties intend the alimony provisions to be nonmodifiable.” Id. ¶¶ 12–14, 17. “[C]onsidering section 30-3-5[]‘s continuing jurisdiction language and Utah case law,” the court of appeals determined that the trial court had erred when it dismissed the petition to modify. Id. ¶ 17; see also Cox, 2019 UT App 60, ¶ 30 (concluding under Sill, that a “third party neutral‘s decisions regarding parent-time” are subject to modification).

¶69 Harmonizing the statutory schemes, we conclude that even when parties agree to arbitrate their divorce-related dispute, they are entitled to seek modification of the resulting award “as is reasonable and necessary,” UTAH CODE § 30-3-5(3) (2018), or “based on a substantial material change in circumstances,” id. § 30-3-5(8)(i)(i) (2018).[10]

¶70 To summarize, divorcing parties may agree to submit their alimony, property, child support, and custody-related disputes to arbitration. Judicial review of a resulting arbitration award, moreover, is limited to only those grounds provided in the UUAA, except when the arbitration award covers child support and custody. In those cases, a district court has the independent responsibility to ensure that the award is in the best interests of the child. Once an award is entered in the form of a decree of divorce, the entire decree is subject to modification as Utah Code section 30-3-5 provides.

¶71 We emphasize that the conclusions we reach today follow from our best efforts to harmonize two statutory schemes that do not talk directly to each other. And we recognize that our Legislature is best equipped to break the silence between the statutes. We note in this regard that the Uniform Law Commission has approved a Uniform Family Law Arbitration Act (UFLAA), which has been adopted in a handful of states. See Family Law Arbitration Act, UNIF. L. COMM‘N, (last visited May 13, 2022); see also MONT. CODE ANN. § 40-16-101 to -128; N.D. CENT. CODE § 32.29.4.-01 to -26; HAW. REV. STAT. § 658j-1 to -27; ARIZ. R. FAM. LAW P. 67.2.

¶72 Under the UFLAA, parties may agree to submit any “family law dispute” to arbitration, UNIF. FAM. L. ARBITRATION ACT § 5, with a few exceptions, id. § 3(b) (clarifying that the UFLAA “does not authorize an arbitrator” to grant a divorce, terminate parental rights, grant an adoption or guardianship, or determine the status of a child in need of protection). As to the grounds on which a court can modify or vacate an arbitration award prior to confirmation, the UFLAA tracks the UUAA, compare id. §§ 17, 18(a), 19(a)(1)–(7), with UTAH CODE §§ 78B-11-121(1), -124(1)(a)–(f), -125(1), with one important distinction—a court can modify or vacate an award “determin[ing] a child-related dispute” when the award “is contrary to the best interests of the child,” UNIF. FAM. L. ARBITRATION ACT § 19(b), (c). A court can also modify an award “based on a fact occurring after confirmation” in accordance with the arbitration agreement or state law. Id. § 22.

¶73 Other states have enacted their own statutes authorizing family law arbitration. See MICH. COMP. LAWS § 600.5071; N.C. GEN. STAT. § 50-41(a); N.M. STAT. ANN. § 40-4-7.2(A). In states with statutes allowing arbitration of a child-related dispute, an award on the topic is generally subject to modification or vacatur when the award is adverse to the best interests of the child. See GA. CODE. ANN. § 19-9-1.1; TEX. FAM. CODE ANN. § 153.0071(b); MICH. COMP. LAWS § 600.5080(2); N.C. GEN. STAT. § 50-54(a)(6); N.M. STAT. ANN. § 40-4-7.2(T); see also COLO. REV. STAT. § 14-10-128.5 (authorizing “[a]ny party . . . to move the court” to conduct a “de novo hearing” to modify an arbitration award “concerning the parties‘ minor or dependent children”); but see FLA. STAT. § 44.104(14) (prohibiting parties from arbitrating “any dispute involving child custody, visitation, or child support”). These statutes also generally allow for modification of a confirmed arbitration award in accordance with state rules or statutes. See, e.g., MICH. COMP. LAWS § 600.5080(3); N.C. GEN. STAT. § 50-56.


¶74 David next argues that “[a]t a minimum, the award should be vacated because the arbitrator exceeded his authority by manifestly disregarding Utah law.” David claims that the arbitrator manifestly disregarded the law when he imputed Jill‘s income and included Jill‘s tuition costs in the alimony award.

¶75 Our case law has recognized that a court may vacate an arbitration award “if [the arbitrator‘s] decision demonstrates a manifest disregard of the law.” Westgate Resorts, Ltd. v. Adel, 2016 UT 24, ¶ 10, 378 P.3d 93. But we have since called Westgate’s conclusion into question. See Ahhmigo, LLC v. Synergy Co. of Utah, 2022 UT 4, 506 P.3d 536.

¶76 In Ahhmigo, we explained that the manifest disregard standard had its genesis in United States Supreme Court dicta. Id. ¶ 26 (discussing Wilko v. Swan, 346 U.S. 427, 436–37 (1953)). In later cases, SCOTUS declined to comment on the standard‘s survival, see Hall St. Assocs. v. Mattel, Inc., 552 U.S. 576, 585–87 (2008); Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 672 n.3 (2010), “creat[ing] a split among jurisdictions as to whether the manifest disregard standard remains a viable ground for vacatur” under the Federal Arbitration Act, Ahhmigo, 2022 UT 4, ¶ 28 (citing cases).

¶77 Ahhmigo also addressed the standard‘s precarious position in our case law. Id. ¶¶ 31–36. We observed that “we have never applied the standard to vacate an arbitration award.” Id. ¶ 37. We also explained that “we have been less than clear when we have talked about the link between the manifest disregard standard and the UUAA,” id. ¶ 38—that is, “we [could not] say whether the manifest disregard standard operates as only a gloss on section 78B-11­124(1)(d) of the UUAA, or whether it is a standalone ground on which a court may vacate an arbitration award,” id. ¶ 40. Looking to “each of the grounds for vacatur” under the UUAA, we “wonder[ed] if perhaps manifest disregard of the law is better thought of as a way of sussing out whether the arbitrator exceeded her authority in a manner that deprived the parties of the benefit of their bargain.” Id. ¶¶ 41, 43. “At the very least,” we “view[ed] with suspicion a standard that permits a party to ask a district court to vacate an award based upon what is, in essence, an argument that the arbitrator misapplied the law dressed up as an argument that the arbitrator disregarded the law.” Id. ¶ 45.

¶78 Ahhmigo notwithstanding, neither party has asked us to abandon the manifest disregard standard. And so we proceed to apply the standard under our case law as it currently sits.

¶79 “‘[M]anifest disregard‘ is an extremely deferential standard.” Westgate Resorts, 2016 UT 24, ¶ 11. To meet this standard, a party must prove three elements:

First, the [arbitrator]‘s decision must actually be in error. Second, the error “must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.” Third, the [arbitrator] must have “appreciate[d] the existence of a clearly governing legal principle but decide[d] to ignore or pay no attention to it.”

Id. (third and fourth alterations in original) (citation omitted).

¶80 David first argues that the arbitrator manifestly disregarded the law when he calculated Jill‘s imputed income. David claims that the arbitrator failed to “consider the significant money that [Jill] will be able to earn from investing her property division.” And he contends that the arbitrator based Jill‘s income “not on the statutory factors, but on his own judgment that [Jill] should be allowed to work in the field of her choice . . . and given time to complete her degree.”

¶81 Utah Code specifies that imputation of income for alimony or child support purposes must “be based upon employment potential and probable earnings.” UTAH CODE § 78B-12-203(8)(b). “In evaluating a spouse‘s ’employment potential and probable earnings,‘ courts are instructed to consider, among other factors, available employment opportunities, the spouse‘s health and relevant work history, and ‘prevailing earnings and job availability for persons of similar backgrounds in the community.‘” Bond v. Bond, 2018 UT App 38, ¶ 7, 420 P.3d 53 (citing UTAH CODE § 78B-12-203(8)(b)(i)–(x)).

¶82 David cannot successfully demonstrate that the arbitrator manifestly disregarded the law when he calculated Jill‘s income because he does not show that the arbitrator‘s decision was “actually . . . in error,” let alone that any error in the arbitrator‘s decision was “obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.” Westgate, 2016 UT 24, ¶ 11 (citation omitted).

¶83 We first note, as the district court did, that Utah law does not require the arbitrator to impute Jill‘s income according to her highest historical salary or possible property investments. It requires, instead, that the arbitrator consider an array of factors and impute Jill‘s income based on her “employment potential and probable earnings.” See UTAH CODE § 78B-11-203(8)(b). And contrary to David‘s assertion, the arbitrator did not ignore this framework. As the district court found, the arbitrator “effectively considered and applied the pertinent statutory factors.” Specifically, the arbitrator considered Jill‘s employment history in the financial and pharmaceutical sales sectors and a report submitted by David‘s vocational expert listing various jobs available to Jill based on her skillset and prior work experience. The arbitrator also spoke with Jill, who explained that while she was currently working as an aide, she was in the process of completing a degree in elementary education and intended to secure a full-time teaching position once her degree was complete. Considering all of these factors, the arbitrator imputed Jill‘s income. The arbitrator thus did not manifestly disregard the law.

¶84 David also argues that the arbitrator manifestly disregarded the law when he “provid[ed] a line-item in [Jill‘s] alimony budget for her to obtain the education necessary to work in [the teaching] profession.” He contends that Utah Code instructs courts to calculate alimony according to a spouse‘s “needs” and “the standard of living existing at the time of separation.” According to David, Jill‘s tuition costs were “neither part of the parties‘ standard of living during the marriage nor a ‘need.‘”

¶85 When determining alimony, a district court must consider a series of factors, including “the financial condition and needs of the recipient spouse.” UTAH CODE § 30-3-5(8)(a)(i)–(vii) (2018), amended as and renumbered by UTAH CODE § 30-3-5(10)(a)(i)–(vii) (2022). In accordance with those factors, “[a]s a general rule, the court should look to the standard of living, existing at the time of separation.” Id. § 30-3-5(8)(e) (2018), amended as and renumbered by UTAH CODE § 30-3­5(10)(e) (2022). “However, the court shall consider all relevant facts and equitable principles and may, in the court‘s discretion, base alimony on the standard of living that existed at the time of trial.” Id.

¶86 We again find no “obvious” error in the arbitrator‘s decision. The arbitrator determined that Jill‘s tuition costs constituted a component of Jill‘s “financial condition” and spending “needs,” and factored those costs into the standard of living that existed at the time of arbitration. This is expressly sanctioned by Utah law. See id. § 30-3-5(8)(a)(ii), (e).

¶87 Ultimately, while David may disagree with the arbitrator, that does not equate to manifest disregard. After all, manifest disagreement and manifest disregard are different. See Pac. Dev., L.C. v. Orton2001 UT 36, ¶ 15, 23 P.3d 1035 (refusing to vacate an arbitration award for manifest disregard of the law because “[the appellant]‘s manifest disregard argument simply amount[ed] to a ‘manifest disagreement‘ with the arbitrator‘s findings and final award” (citation omitted)).


¶88 David asked his then-wife, Jill, to submit to arbitration the parties‘ disputes regarding alimony, property division, and child support. Jill agreed. David now asks us to invalidate the award under section 78B-11-107 of the UUAA. He argues that the plain language and policies of our state‘s arbitration and divorce laws conflict such that the parties‘ arbitration agreement is unenforceable.

¶89 But having participated in arbitration without objection, David lost the chance to rely on section 78B-11-107 to contest the arbitration award in his divorce case. We also reject David‘s argument that Utah law prevents parties from submitting at least some aspects of their divorce action to arbitration. Judicial review of arbitration awards dealing with divorce-related issues, however, varies depending on the issue and its underlying policies. Parties may arbitrate questions concerning alimony and property division and agree to the limited judicial review the UUAA contemplates. The strong policies underlying statutory provisions ensuring the protection of children, on the other hand, dictate that a court maintain the ability to consider whether an arbitration award addressing child support or custody is in the best interests of the child.

¶90 Concerning modification, a court retains continuing jurisdiction to modify orders relating to property distribution or children “as is reasonable and necessary,” UTAH CODE § 30-3-5(3) (2018), amended by and renumbered as UTAH CODE § 30-3-5(5) (2022), and orders relating to alimony “based on a substantial material change in circumstances,” id. § 30-3-5(8)(i)(i) (2018), amended by and renumbered as UTAH CODE § 30-3-5(11)(a) (2022).

¶91 David alternatively asks us to invalidate the arbitration award for manifest disregard of the law. Even assuming that standard remains viable, it has not been met. We affirm the district court.

Utah Family Law, LC | | 801-466-9277

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What will the court do if I do not sign a letter sent by my ex-husband?

What will the court do if I do not pick up a letter my ex-husband sent that needs to be signed by me from the courts about his back court ordered alimony of $20,000.00 that he is in default already and has been ordered by the courts several times? 

This is a question you need to ask of a local divorce attorney in your jurisdiction. 

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Can a parent with full custody deny visitation due to unsanitary conditions?

Can a parent with full custody refuse to allow visitation due to unsanitary living conditions?

Good question.

I will answer this question in the context of some applicable law for the jurisdiction where I practice divorce and family law (Utah).

There are many ways to approach this question, but briefly one thing you need to be aware of are the custodial interference laws.

Under the custodial interference laws (76-5-303. Custodial interference), A parent can refuse to comply with a child custody and/or parent time order under certain circumstances:

(a) the action is consented to by the person whose custody or visitation of the child was interfered with; or


(i) the action is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and

(ii) before engaging in the action, the person reports the person’s intention to engage in the action, and the basis for the belief described in Subsection (6)(b)(i), to the Division of Child and Family Services or law enforcement.

See also 76-5-305. Defenses:

(a) the actor was acting under a reasonable belief that:

(i) the conduct was necessary to protect any person from imminent bodily injury or death; or

(ii) the detention or restraint was authorized by law; or

(b) the alleged victim is younger than 18 years of age or is mentally incompetent, and the actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial parent, or person acting in loco parentis to the victim would, if present, have consented to the actor’s conduct.

There is no hard and fast rule you could apply in this situation, of course, but I think it’s reasonable to say that if the living conditions that the other parent’s house were so unsanitary as to pose a serious risk of harm to the child’s life or health, refusing to comply with parent time on that basis might not result in criminal guilt.

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

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Can a 16-year-old child choose not to have visitation with a parent?

Technically, no. Practicably/pragmatically, yes. 

Technically, a minor child (even a child of 16 years of age) does not have the legal right to choose whether he or she will comply with the parent time “visitation” scheduling orders that a court issues in a divorce or child custody case. But the courts find it difficult to enforce these parent time schedule orders as to the children. In other words, if a child won’t comply with the court’s parent time orders, usually courts do one of two things. Some courts “find” that they don’t have the power to compel a child to comply. This is not true, but by making such a finding that it has no power to coerce and compel a child to comply, the court is able to wash its hands of dealing with the enforcement question. More honestly, other courts find that using the powers of the state, such as arrest and incarceration, to coerce and compel a child to comply with its parent time orders does more harm than good, is more trouble than it’s worth. And it’s not like the parents have any realistic options to enforce parent time orders either. If a parent were to bar the door to his or her home to a child to compel that child to go spend parent time with the other parent, that child could simply dial 911 and report the parent for child abuse and neglect. So in short, if a 16-year-old child doesn’t want to comply with the court’s parent time schedule orders, that child will probably get his or her wish. 

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

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Can you go back to your ex-spouse after a divorce?

Yes, there is no law (I know of in any jurisdiction of which I am aware, but check in your jurisdiction to be sure) against a divorced couple resuming a romantic relationship or from remarrying. 

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

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Are divorce records public?

I cannot speak for all jurisdictions, but for the jurisdiction where I practice divorce law the answer is “yes”. See Utah Code § 30-3-4(2)(b):

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

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

Utah Family Law, LC | | 801-466-9277 

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If each parent is fully capable, will the court still give full custody to mom?

If both parents are wonderful, will the court still lean towards full custody to the mother?

[Note: I am a divorce lawyer of 25 years. I am not bitter about “what happened to me in my divorce” as I am not divorced. I have no axe to grind with women or mothers (I love my mother, sisters, wife, and daughters dearly and without reservation). With these facts in mind, I answer your question as follows below.] 

Not exactly. But close. 

While the courts are finally starting to confront and slowly abolish discrimination against fathers when it comes to making the child custody and parent-time awards, the odds are still ludicrously in the mother’s favor when both parents are fit and loving parents. 

No question about it. The exceptions prove the rule. 

“All things being equal,” the mother is favored (yes, I know that’s illogical, but the courts find ways to justify or to appear to justify illogical thinking, especially in making child custody and parent-time awards). 

It’s grossly unfair to children and to fit, loving fathers alike, but it’s what courts frequently (more often than not) do. 

Now clearly there are times when, even though Dad’s a wonderful parent, circumstances (such as the parents living too far apart or having an unorthodox/inflexible work schedule) may render impractical or impracticable the exercise of joint equal physical custody and/or result in joint equal custody arrangements doing the children more harm than good. But far, far too often fit, loving fathers are denied joint equal custody by virtue of plain old sexual discrimination. 

What does “favoring the mother” (prejudicing the father) look like nowadays? Here are few of the most common situations: 

  • Rather than awarding joint equal physical custody to both parents, awarding “just a little more time” to Mom than to Dad. Case in point: I worked a case where both Mom and Dad had full-time jobs, but the court awarded Mom more time with the children than with Dad anyway (8 out of every 14 days on a 14-day repeating schedule—the trial court even stated that denying the kids and dad that one day every two weeks would enable dad to have more time to get his work done). This was the case where I reached my breaking point (about three years ago). To his credit, my client agreed to appeal (and pay tens of thousands of dollars for the privilege), and he won, with the appellate court ordering the trial court to award equal child custody and parent time. If you believe that happens in every case like his, you would be mistaken. 
  • Finding that, even in situations where the children are preteens or older, the mother was (past tense) the children’s primary caregiver when they were infants and toddlers, and therefore she always has that “advantage” over the father in the here and now. I have this case where mom had been working full-time for the past four years. The youngest of the couple’s children could take care of himself and did not need a full-time caregiver. Worse, mom worked outside the home full-time, while dad’s full-time job permitted him to work from home. At the temporary orders phase of the case, the court awarded mom primary physical custody of the kids because (and the court made no secret of the basis for its decision) she hadbeen (past tense) the per children’s primary caregiver. Dad Wasn’t even seeking sole or primary custody; he was seeking joint equal physical custody, but he lost. Such an outcome is ridiculous and tragic, but not surprising. 
  • Rejecting Dad’s claims that the mother is so lazy and that Dad not only works full-time each day outside the home, but then spends the rest of his time at home taking care the housekeeping and taking care of the kids as well. Why? Because (in my experience) in the minds of most judges it is unthinkable for a stay-at-home mother to be a lazy and inattentive parent (while at the same time it is easy for judges to believe—just believe—that a father doesn’t pull his weight when it comes to fulfilling child caregiving). 
  • Penalizing the father for being the only full-time employed (in many cases the only employed) parent and awarding sole or primary physical custody of the children to the mother because she doesn’t work outside the home. Never mind (apparently) the fact that if the parties share joint equal custody, that would enable both parents to provide as much personal care to the children as possible and also allow them to work full-time jobs for their children’s financial support. Nope. Now clever courts will “acknowledge” and “praise” Dad for being a responsible and devoted breadwinner, but won’t award joint equal custody, justifying the unequal award of child custody with assertions such as: 
    • Spending equal time in both parents’ Respective residences creates an “unstable” residential circumstance for the children. 
    • The fact that unemployed Mom spends more of the waking hours with the children than does Dad (until the children start school, in which case the amount of time mom spends with the kids during waking hours is negligible compared to the time the children are with Dad while he’s at work) means that dad should spend even less of the children’s waking hours with them when he gets home from work. Otherwise stated, because Dad can’t be with the kids during the eight or nine hours that he is at work each day, that means that he should not spend the hours that he does have available to be with the children when the children could be spending that time or “consistently” in the custody and care of their mother. If you don’t understand this reasoning the first time you read through it, you’re not alone. 
  • Courts will still indulge in blatantly discriminating against fathers: 
    • by citing to the “fact” that women/mothers are “born nurturers”; 
    • by citing to the “fact” that children are more closely bonded with, and thus need more time with, their mothers than with their fathers; 
    • by claiming “it’s not the quantity of time but the quality of time” that children spend with their fathers that matters most, failing to concede that the quality of the time is a function of the quantity of time when it comes to parent-child interactions. How did the term “Disneyland Dad” evolve? Not by assuming the responsibilities and “heavy lifting” parental duties of day to day living. No, but by spoiling the child when they have such disproportionately little time on alternating weekends and one weeknight. It creates a warped sense of the father-child relationship and of reality for the kids in general, leading to the kids becoming self-absorbed, worldly, and feeling entitled around their fathers. 

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

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