Tag: end of marriage

Should I file for a no-fault divorce or for an uncontested divorce? 

My spouse and I have no children together and own no property together. Should I file for a no-fault divorce or for an uncontested divorce? 

It’s not a question of choosing between “no-fault divorce” and “uncontested divorce”. These two terms are not opposites. 

No-fault divorce means that you don’t have to accuse your spouse of committing some kind of marital fault before you can seek a divorce from your spouse. The reason no-fault divorce is called no-fault divorce is because prior to the creation of no-fault divorce laws, you could not get divorced unless you are able to prove your spouse committed some kind of marital fault during the marriage. And what does “marital fault” mean? Marital fault includes things like adultery, desertion and abandonment, physical abuse, extreme mental and emotional cruelty, habitual drunkenness or impairment from the abuse of other substances, conviction of a serious crime or incarceration, failure to provide one spouse with the necessities of life, and insanity. 

Back in the late 60s, various governments in the United States realized that there are many miserable marriages that could and should end in divorce but that did not qualify under any of the fault bases for divorce. That is what led to the creation of no-fault divorce, by which one can obtain a divorce simply by asserting that there are irreconcilable differences between spouses that render the marriage irretrievably broken prevent the marriage from continuing. 

An uncontested divorce is a divorce in which all of the issues in in the divorce action, including child custody and visitation (parent time), division of marital assets and responsibility for marital debts, etc. are resolved by the agreement of the parties through settlement as opposed to litigating those issues and having the matter decided by a judge after a trial. 

So if you and your spouse both agree that you don’t want to stay married and believe that you can agree to resolve all of the issues in your divorce without needing to fight with each other and litigate at trial, you can drop a settlement agreement and base your divorce upon the terms of your settlement agreement, without having to go to trial and have the judge determine the outcome. 

No-fault divorces can be uncontested divorces. That stated, not all no-fault divorces are uncontested, as one can file for divorce on a no-fault basis, but may still find himself or herself arguing with his or her spouse over various issues that will end up decided by a judge, if the parties cannot settle those issues by agreement between themselves. 

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

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When are my ex’s things deemed abandoned?

I was awarded the house in the divorce. My ex’s things are still here and he/she won’t pick them up. When are they deemed abandoned? 

Utah Code § 67-4a-201 provides, in pertinent part that property is presumed abandoned if the property is unclaimed by the apparent owner “the earlier of three years after the owner first has a right to demand the property or the obligation to pay or distribute the property arises.” 

Utah Code § 67-4a-208 (Indication of apparent owner interest in property) provides, in pertinent part: 

(1) The period after which property is presumed abandoned is measured from the later of: 

(a) the date the property is presumed abandoned under this part; or 

(b) the latest indication of interest by the apparent owner in the property. 

(2) Under this chapter, an indication of an apparent owner’s interest in property includes: 

(a) a record communicated by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held; 

(b) an oral communication by the apparent owner to the holder or agent of the holder concerning the property or the account in which the property is held, if the holder or the holder’s agent contemporaneously makes and preserves a record of the fact of the apparent owner’s communication; 

(c) presentment of a check or other instrument of payment of a dividend, interest payment, or other distribution, or evidence of receipt of a distribution made by electronic or similar means, with respect to an account, underlying security, or interest in a business association; 

(d) activity directed by an apparent owner in the account in which the property is held, including accessing the account or information concerning the account, or a direction by the apparent owner to increase, decrease, or otherwise change the amount or type of property held in the account; 

(e) a deposit into or withdrawal from an account at a banking organization or financial organization, including an automatic deposit or withdrawal previously authorized by the apparent owner other than an automatic reinvestment of dividends or interest; 

(f) any other action by the apparent owner which reasonably demonstrates to the holder that the apparent owner knows that the account exists; and 

(g) subject to Subsection (5), payment of a premium on an insurance policy. 

(3) An action by an agent or other representative of an apparent owner, other than the holder acting as the apparent owner’s agent, is presumed to be an action on behalf of the apparent owner. 

(4) A communication with an apparent owner by a person other than the holder or the holder’s representative is not an indication of interest in the property by the apparent owner unless a record of the communication evidences the apparent owner’s knowledge of a right to the property. 

(5) If the insured dies or the insured or beneficiary of an insurance policy otherwise becomes entitled to the proceeds before depletion of the cash surrender value of the policy by operation of an automatic premium loan provision or other nonforfeiture provision contained in the policy, the operation does not prevent the policy from maturing or terminating. 

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

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Can I get an annulment instead of a divorce?

Many people call me asking about whether they can get an annulment instead of a divorce. Their reasons are almost always the same: “I would prefer to say that I am not divorced.” 

Although the stigma of divorce is not nearly as great as it was a generation or two ago, there are many people who still would prefer to say they are not divorced. Others may have religious reasons for seeking an annulment over a divorce. And there are some situations where divorce may disqualify someone from receiving an inheritance or similar benefit. 

I completely understand the desire to end a marriage without divorce.  

The problem for most people who want an annulment over a divorce is that there are fewer and more particular grounds for annulment than there are grounds for divorce. Otherwise stated, while some grounds for divorce may also be grounds for annulment, just because one might have grounds for divorce does not mean one also has grounds for annulment. 

This, from AmJur2d, § 1 (Annulment of marriage, generally), makes several important points:  

By definition, an annulment is a declaration that a purported marriage never existed. It is a judicial determination to set aside a marriage that was invalid at its inception because of some defect existing at the time of the marriage.  


A marriage should not be set aside lightly, and annulments of marriage are disfavored in the law. 


An annulment is also to be distinguished from a divorce in that as a general rule an annulment proceeding is for causes for avoidance of the marriage existing at the time of the marriage, whereas a divorce ordinarily is for causes arising after the marriage. 

In Utah, where I practice divorce and family law, this is the statute that governs an action for an annulment of a marriage: 

Utah Code § 30-1-17.1.  Annulment — Grounds for. 

A marriage may be annulled for any of the following causes existing at the time of the marriage: 

(1) When the marriage is prohibited or void under Title 30, Chapter 1, Marriage. 

(2) Upon grounds existing at common law. 

First, we will cover common-law grounds for annulment. The Utah Code does not identify what the common law grounds for annulment are. It is hard to find a “master list” of common law grounds for annulment, but here’s what I was able to find generally: 

  • Failure to consummate marriage; refusal of sexual intercourse 
  • Incapacity based on age (under age of consent) 
  • Lack of intent to enter into binding marriage 
  • Marriage induced by fraud 
  • Prior subsisting marriage 

Next, we will cover the statutory grounds for annulment (Utah Code § 30-1-17.1. Annulment—Grounds for). What kinds of purported marriages are prohibited or void? 

Incestuous marriages (Utah Code Section 30-1-1) 

  • When there is a spouse living, from whom the individual marrying has not been divorced; 
  • When an applicant is under 18 years old, unless the applicant: 
    • is 16 or 17 years old and obtains consent from a parent or guardian and juvenile court authorization in accordance with Section 30-1-9; or 
    • lawfully marries before May 14, 2019. 

And there is this statute that deals with one aspect of annulment: 

Utah Code § 30-1-17.  Action to determine validity of marriage — Judgment of validity or annulment. 

When there is doubt as to the validity of a marriage, either party may, in a court of equity in a county where either party is domiciled, demand avoidance or affirmance of the marriage, but when one of the parties was under 18 years old at the time of the marriage, the other party, being of proper age, does not have a proceeding for that cause against the party under 18 years old. The judgment in the action shall either declare the marriage valid or annulled and shall be conclusive upon all persons concerned with the marriage. 

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

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How do I stop being afraid of divorcing?

How do I stop being afraid of divorcing? I’m so scared. I’ve been a stay-at-home mother for 18 years. I have health issues. I don’t know if I can provide for myself.

Good on you for asking the question before you decide whether to jump into the deep end of divorce with both feet. Divorcing without having any idea whether it will do you and your family more harm than good rarely ends well. 

Most urgent question: If I stay married, does that put my life at risk, i.e., am I at serious risk of my spouse maiming or killing me? If the answer is yes, then you need to run, not walk, away now, get to safety from being killed, and worry about divorce and the aftermath later. No marriage is worth staying in, no spouse worth staying with, if your spouse is murderously violent. Even if leaving your spouse leaves you penniless at the moment, you can overcome that problem. It is not worth risking your life for material comforts. 

If your dysfunctional life/marriage is not life-threatening: then the answer to your question is, as a matter of fact, easy to find. The difficulty lies not in finding the answer, but summoning the courage and the will to act in accordance with the answer. 

How to analyze your situation. Here is a simple but highly clear and effective way to analyze your question to get to the answer used by Ben Carson. Dr. Carson is the former U.S. Secretary of Housing and Urban Development and before that was one of the best neurosurgeons in the world. Before that, he grew up without a poor black child in the care of a mentally ill mother. He knows a little bit about problems and how to tackle them successfully. One of the ways to identify and choose acceptable risks is to ask yourself four questions, or do what Dr. Carson calls a Best/Worst Analysis (B/WA): 

  • What is the best thing that can happen if I do this? 
  • What is the worst thing that can happen if I do this? 
  • What is the best thing that can happen if I don’t do it? 
  • What is the worst thing that can happen if I don’t do it? 

Ask and answer key questions. Here are some (some, not all) of the questions you should ask in conducting your best/worst assessment: 

  • The question of why. Why am I contemplating divorce? Divorcing for the wrong reason(s) will almost surely result in divorce doing you (and your spouse and children) wrong. 
    • It’s not just good to ask why, it’s crucial. Undertaking anything without knowing why you are doing it (and whether you should) results in poor, haphazard preparation and planning, wasted time, effort, and money, unnecessary fear, and doubt, and flagging focus and motivation. “If you know the why, you can live any how.“ (Friedrich Nietzsche) 
    • A key “why” question: Am I hoping to “escape”? Let me explain what I mean. Taking pain pills to treat pain to help you heal better or faster from an illness or injury is good. Taking pain pills in an effort to escape the burdens of life only makes things (a lot) worse. 
    • If you see divorce or marriage as a means of escaping personal unhappiness, guilt, fear, weaknesses, etc., then you are thinking about divorce and marriage wrong. If you are broken and marriage or divorce is a necessary step you need to take toward repairing yourself, then you’re on the right track. But staying married or divorcing to avoid responsibility for yourself and your demons will only result in 1) your personal weaknesses and their consequences getting worse, and 2) causing your spouse and children unnecessary and unfair collateral damage. 
      • If you determine that divorce is an escape, research and find a good therapist or counselor to help you identify the real problems, the root of the problems, and what is needed to solve the problems. Taking that first step is, fortunately, easy. Once you’ve found someone competent, it really is as simple as making and keeping an appointment. The therapy itself will be as messy and upsetting as it is curative and restorative, but it is worth it. It is. 
  • Is it a question of can’t or won’t?: If you honestly conclude that you need to divorce, are you afraid to divorce because you can’t take care of yourself or because you don’t want to take care of yourself? If you can’t take care of yourself, divorce may not be practical (trading the misery of unhappy marriage for the misery of poverty just exchanges one form or misery for another). If you can take care of yourself, perhaps you are not afraid of whether you can make it on your own but afraid to go back to work and/or live a reduced lifestyle. 
    • If you can, and you are willing to do the work required, then figure out what is needed to achieve an single, independent, post-divorce life and the best way(s) to do so. 
    • Bare minimum you need to have in place to be an independent adult: 
      • church or other support system to help you get started and to guide you and encourage you (and remember: contribute as much or more than you “withdraw”; if your church gives you money or helps with groceries, then “pay it back” by volunteering, teach Sunday school, babysit your fellow parishioners’ kids sometimes, clean the chapel, help the pastor, visit the sick, etc. It will not only help keep your support system strong, it will help you be happier too, and you won’t feel like a moocher because you won’t be a moocher) 
      • a job or jobs that generate sufficient income to support your needs. 
      • budget 
      • shelter you can afford (with essential utilities and furnishings) 
      • food you can afford 
      • clothing you can afford 
      • bank or credit union account 
      • phone and phone plan 
      • health insurance 
      • driver’s license (even if you don’t yet own a car; you may be called upon to drive or rent a car sometimes) 
      • tool kit 
      • friend 
      • hobby (start with a library card) 
      • emergency (rainy day) fund

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

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Law from a legal assistant’s point of view, week 45

By Quinton Lister, legal assistant 

I work for a divorce attorney, but I am not pro divorce. I understand that if there were no divorces I would be “out of a job”, but that still does not mean I have to like divorce. That being said, I think that divorce attorneys offer a valuable service, especially to those who have a vengeful or, for lack of a better term, “crazy” ex-spouse.  

I have seen firsthand the tactics many unscrupulous divorce attorneys and their clients will use to prolong divorce proceedings, or to get extra money that the law does not guarantee to them. I have seen the damage that is the result of lawyers and their clients treating divorce like a zero-sum game.  

If your ex-spouse is treating you maliciously and/or unjustly (and I mean “unjust” in the sense of breaking the law in their treatment of you), then you owe it to yourself and your family to consult with and hire a good attorney. Hire an attorney who is both skilled and moral. Hire a lawyer who will do his/her best to help you and the other party comply with the law and resolve issues equitably and in a timely manner.  

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

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