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Tag: divorce process

Divorce Mediation – To Good to Be True (For Most People)

I know you want to believe that divorce mediation is the trick to a fast, easy, cheap, amicable divorce. I know you want to believe this, and we know why. But if it sounds to good to be true, it likely is. So it is with mediation.

Divorce mediation won’t work unless you and your spouse trust each other to negotiate in good faith and honor any settlement agreement reached. You cannot get out of mediation any more than you put into it.

Divorce mediation was a good idea that the legal profession spoiled by making it mandatory.

Divorce mediation is a good idea when it’s done at the beginning, but divorce lawyers put it off until they’ve squeezed a hefty profit out of their clients through a bunch of pretrial motions and discovery. Thus, mediation typically “succeeds” because by the time the parties get to mediation they’re so emotionally and financially spent that they settle out of resignation and exhaustion; “think win-win” had nothing to do with it.

Mediation worked well when it was voluntary and between two people who both believed they might reach an agreement they trusted each would honor. Now mediation is just one more of the “dumb [and expensive] things I gotta do” before I can get divorced.

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

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How Long Does a Divorce Take, From Start to Finish, in Utah?

Great question. Here is the best concise answer I can give you.

Most divorce cases settle. Many divorce cases that do settle were settled badly. Some bad settlements are the result of a party running out of money, willpower, or both. That’s understandable. I don’t have the statistics for how long it takes on average for a divorce case to settle, but it’s likely less time than it takes for contested divorces that go to trial.

So how long should a contested divorce action take? And how long do contested divorce action actually take?

The Utah Rules of Civil Procedure govern most of the issues of the time it takes for a divorce case from the point of filing the petition for divorce to the issuance of the Decree of Divorce by the court. Other rules, including those in the Utah Code of Judicial Administration govern as well. With this in mind, we will review how long a divorce action should take in Utah (notice I stated “should”) by reviewing the applicable rules:

1.      Utah Rules of Civil Procedure, Rule 3. File a petition or complaint for divorce with the court.

Whether you prepare your own complaint or petitioner to file with the court or hire an attorney to represent you and prepare the pleadings for you, let’s assume that takes 4 weeks, on average.

Subtotal: 28 days

2.      Utah Rules of Civil Procedure, Rule 4. Get the respondent (the opposing party from whom you are seeking a divorce) served with a summons and copy of the complaint or petition for divorce. They must be served no later than 120 days after the complaint is filed, unless the court orders a different period under Rule 6. If the summons and complaint are not timely served, the action against the unserved defendant may be dismissed without prejudice on motion of any party or on the court’s own initiative.

*Getting the opposing party served doesn’t usually take very long and is often accomplished within just a few days of the filing of the petition or complaint for divorce. But sometimes a spouse cannot be found or tries to avoid getting served, which can add weeks or months to the divorce process. If, despite the petitioner’s due diligence, his/her spouse’s whereabouts cannot be determined or the spouse keeps evading effort to get him/her personally served, the divorce case isn’t thwarted. Knowing that these kinds of situations can and will arise, Utah Rules of Civil Procedure, Rule 4(d)(5) was created to permit a motion to be filed seeking to allow service by some other means. If the motion is granted, the court will order service of the complaint and summons by means reasonably calculated, under all the circumstances, to apprise the named parties of the action.

So let’s assume that it takes 10 days to get your spouse served.

Subtotal: 38 days

3.      Utah Rules of Civil Procedure, Rule 12. The respondent must serve an answer within 21 days after the service of the summons and complaint is complete within the state and within 30 days after service of the summons and complaint is complete outside the state. The petitioner must serve an answer to a counterclaim in the answer within 21 days after service of the answer.

Let’s assume that your spouse waits until the last day to serve his/her answer AND let’s assume that your spouse files a counterclaim that you wait until the last day to serve your answer to the counterclaim. So, 42 days.

Subtotal: 80 days

4.      Utah Rules of Civil Procedure, Rule 26.1. The parties are required to serve each other with their respective initial disclosures and financial declarations within 14 days after filing of the first answer to the complaint.

Subtotal: 94 days

5.      Utah Rules of Civil Procedure, Rule 26. The days to complete standard fact discovery are calculated from the date the first defendant’s first disclosure is due and do not include expert discovery under paragraphs 26(a)(4)(C) and (D).

Days to Complete Standard Fact Discovery: 90

Total Fact Deposition Hours: 4

Rule 33 Interrogatories including all discrete subparts: 10

Rule 34 Requests for Production: 10

Rule 36 Requests for Admission: 10

Note: it is fairly standard practice for the parties either to agree to extend the discovery period beyond 90 days or for a party to request an order from the court permitting the extension of discovery beyond 90 days.

Let’s assume that discovery does not close until after 150 days.

Subtotal: 244 days

6.      Utah Rules of Civil Procedure, Rule 16. Unless an order sets the trial date, any party may and the plaintiff shall, at the close of all discovery, certify to the court that discovery is complete, that any required mediation or other ADR[1] processes have been completed or excused and that the case is ready for trial. The court shall schedule the trial as soon as mutually convenient to the court and parties. The court shall notify the parties of the trial date and of any final pretrial conference.

[1] “ADR” means Alternative Dispute Resolution. Utah Code § 30-3-39 requires that the parties participate in at least one mediation session before the case can be certified as ready for trial and set for trial.

Utah Code § 30-3-39.  Mediation program.

 

(1) There is established a mandatory domestic mediation program to help reduce the time and tensions associated with obtaining a divorce.

(2) If, after the filing of an answer to a complaint of divorce, there are any remaining contested issues, the parties shall participate in good faith in at least one session of mediation. This requirement does not preclude the entry of pretrial orders before mediation takes place.

(3) The parties shall use a mediator qualified to mediate domestic disputes under criteria established by the Judicial Council in accordance with Section 78B-6-205.

(4) Unless otherwise ordered by the court or the parties agree upon a different payment arrangement, the cost of mediation shall be divided equally between the parties.

(5) The director of dispute resolution programs for the courts, the court, or the mediator may excuse either party from the requirement to mediate for good cause.

(6) Mediation shall be conducted in accordance with the Utah Rules of Court-Annexed Alternative Dispute Resolution.

How long does it take to get a trial date set after one has certified the case as ready for trial? Currently (as of the date this post is written), about 8 months. Let’s be optimistic and use 6 months for our purposes in this blog post.

Subtotal: 484 days

7.      Trial takes place.

Trial usually takes 3 to 5 days, but can take as little as half a day or several weeks. We’ll use 5 days for our purposes.

 

Subtotal: 489 days

8.      Utah Code § 78A-2-223 (Decisions to be rendered within 2 months—Procedures for decisions not rendered).

§ 78A-2-223. Decisions to be rendered within two months–Procedures for decisions not rendered

 

(1) A trial court judge shall decide all matters submitted for final determination within two months of submission, unless circumstances causing the delay are beyond the judge’s personal control.

(2) The Judicial Council shall establish reporting procedures for all matters not decided within two months of final submission.

The court usually does not take the full 60-61 days to decide the case, but I’ve experienced delays of more than 60 days on several occasions over the course of my career. I would say the court usually issues its decision within 30 to 45 days. So, let’s use an average of 30 and 45 days, i.e., 38 days.

Subtotal: 527 days. So one year, 5 months, 10 days.

A contested divorce case takes about 1 to 2 years to complete.

 

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

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How long does it take a divorce to become final if one party is refusing the divorce?

How long does it take a divorce to become final if one party is refusing the divorce?

It can take an amazingly, shockingly long time.

One of the most frustrating things about this experience is that while you clearly have a stake in the expeditious outcome of your divorce action, you are not the only participant in the divorce process, and if the other participants do not share your desire to dispose of your divorce case as promptly as reasonably possible, you can often find the divorce process frustratingly tedious.

I’ve been involved in cases that have, despite my and my clients’ best efforts, dragged out for years beyond when they should have been set for trial.

Here are a few things that you can do to ensure that you are not contributing to the delays in your case:

  • Don’t keep hoping for a perfectly fair settlement;
    • I completely understand the desire to settle the case so that you avoid months or years of protracted litigation and or having to spend scary amounts of money preparing for and going to trial. but once you’ve gone to mediation once or twice, once you’ve exchanged multiple settlement proposals, and have nothing to show for it, then it should be clear that unless you roll over and settle on the terms your spouse dictates, your case will be going to trial. When she reached that realization there’s no point in putting it off any longer.
    • Sometimes it may be your attorney, not you, who is afraid to stop negotiating in a fruitless attempt to reach a settlement. Some lawyers are terrified of going to trial, so they might be the ones slowing the case down in a vain attempt to settle the case so that they don’t have to worry about preparing for and going to trial.
  • Bite the bullet and realize that preparing for and going to trial is expensive. For some people, the financial cost of preparing for and going to trial is more than they can pay. Some people literally cannot afford to go to trial. If you find yourself in that situation, and then make a settlement you know isn’t fair but one that you made because you had no other alternative, that’s a hard pill to swallow, but there’s little point in complaining about it; you did the best you could.
  • Make sure you have an attorney who doesn’t put up with the opposing parties and/or the opposing party’s attorney’s or even the court’s dilatory shenanigans. Your attorney cannot force your case to settle on your terms and timetable but can take steps to ensure that the opposing side and/or the court isn’t/aren’t delaying the progress of the case inexcusably. If your attorney is in this kind of attorney, fire him or her and get one who is.

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

https://www.quora.com/How-long-does-it-take-a-divorce-to-become-final-if-one-party-is-refusing-the-divorce/answer/Eric-Johnson-311?prompt_topic_bio=1

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Do prenuptial agreements make a wedding/marriage healthier?

Do prenuptial agreements make a wedding/marriage healthier?

Make? In all cases? No.

Can prenuptial agreements make a wedding and marriage healthier? It is conceivable that some people might find planning for divorce before they have married a comfort to them so that they don’t worry so much about divorce while married because they believe they have already “addressed” that possibility in advance. And if a marriage fails that should fail, then having a prenuptial agreement in place in advance can (can but does not guarantee) help make the divorce process easier, faster, less costly, and less acrimonious.

Do prenuptial agreements generally make a wedding and marriage healthier? In my experience, no. With extremely rare exception, every marriage is going to have its rough patches, and I have found that prenuptial agreements make divorce deceptively easy to contemplate and desire when the going gets rough in marriage, even though divorce is neither necessary nor in either spouse’s (or their children’s) interest.

I have found that prenuptial agreements send the wrong message, and that message is: I don’t see marriage as a lifelong endeavor. I have so little commitment to marriage and so little faith in you and me and our impending marriage that I don’t think we’ll last, and because I feel this way, I want an exit strategy in place now. Who’d want to marry someone like that? Success is meaningless without the risk of failure. You can’t have the benefits of marriage without going all in, without risking having your heart broken. Spouses who are mutually devoted to each other will tell that a loving, supportive marriage is more than worth the effort, the pains, the disappointments, the sacrifices.

Marriage isn’t the problem. It’s marrying without being careful in one’s choice of spouse, without treating marriage as a sacred thing, and without being committed to your spouse’s and your marriage’s success.

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

https://www.quora.com/Does-prenuptial-agreements-make-a-wedding-healthier/answer/Eric-Johnson-311?prompt_topic_bio=1

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What are the Steps for Getting Divorced in Utah?

What are the Steps for Getting Divorced in Utah?

To start the divorce process, you must begin by filing what is called a complaint or a petition for divorce with the court. This means you are suing your spouse for a divorce. Don’t let the term “suing” frighten you or your spouse. “To sue” means to institute legal proceedings against your spouse. That’s all.

Then your complaint or petition for divorce is served on (or officially delivered to) your spouse, usually by a law enforcement officer or a private process server. You can also waive personal service by a law enforcement officer or process server and just accept service by signing a simply accepting the documents without the need for personal service.

If you and your spouse agree to the terms of your divorce, also known as an “uncontested divorce,” the issue of “service of process” doesn’t come up because you submit voluntarily to the jurisdiction of the court by signing and filing with the court your divorce settlement agreement and other documents that indicate you recognize you are subject to the to the jurisdiction of the court.

If you’re the one seeking a divorce and the one who filed for divorce, your spouse has 21 days to respond to the complaint for divorce or 30 days to respond if your spouse is served outside of the state of Utah.

The name for the response to a complaint for divorce is an “answer”. If you wish to countersue your spouse for divorce after you get served with a petition or complaint for divorce, you can file an “answer and counterclaim”.

How the case proceeds from this point could take various routes:

  • At any point during the pendency of the case, as long as the trial has not concluded and the court issued its decree and orders, you and your spouse can reach a settlement agreement.
  • After the complaint and answer or answer and counterclaim are filed, the parties have to exchange some initial financial information and information about the evidence each party has and what witnesses the parties might call to testify at trial.
  • Then the parties have 180 days to conduct discovery. The purpose of discovery is to obtain facts and information that will reveal the truth in a matter and help both parties and the court determine what’s truly in dispute and what is not. After discovery closes, then the case is almost ready to take to trial, but not quite.
  • Before a divorce case can go to trial in Utah the parties must first to go mediation and try to settle the case (if the parties don’t want to go to mediation they can ask the court to waive the mediation requirement “for good cause,” but it’s not easy to get the court to find good cause to waive mediation. Most couples go to mediation, even if they think it won’t work, if for no other reason than to check the “we went to mediation” box, so that they can get to trial.
  • After discovery closes and mediation is completed, either party can certify the case as read for trial.
  • Then the court schedules one or more pretrial conferences to prepare for trial, set a trial date, the number of day the trial will take, and other matters.
  • After trial, the court can take up to 60 days to issue its decision on the case, after which one of the parties’ respective attorneys is ordered to prepare the Decree of Divorce for the court’s signature.

That’s the Utah divorce process in a nutshell.

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

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