Divorce is the legal process of terminating a marital union between a husband and wife for various reasons as we shall discuss in this article. Custody, on the other hand, is the legal right to protective care or guardianship of someone or something. Looking at the current average divorce rate in the U.S.A. stands at 3.4%, but in the state of Utah, the current divorce rate stands at 3.6%, which is above the national rate. According to the Center for Disease Control and Prevention, additional statistics regarding divorce cases in Utah shows that in 2014 and 2013, the divorce rate in Utah was 3.1 per 1000 people. In 2012 the price was at 3.3 while in 2011 it was 3.7%
We’ll discuss matters concerning divorce and custody law in Utah. The requirements that one has to fulfill to get divorced as well as the grounds for divorce are also explained comprehensively. Custody law is also analyzed and simplified in its explanation.
Divorce Law includes the following topics and legal areas:
A determination of the monetary obligation parents have for their minor children. This also addresses medical and health insurance coverage, school expenses and the like.
Child custody and visitation
Operating in the best interests of the child, it must be decided whether a child of divorce will reside full-time or part-time with each parent, visitation schedules, holiday schedules, parenting time, etc.
Spousal support/ Alimony/ Maintenance
Often, one spouse will be required to provide monetary support to the other spouse for a limited period. Many factors are involved in determining the type of support that should be awarded, as well as the amount and the length of time it should be paid.
Division of property and debt
Whether a state is a “community property state” or an “equitable distribution state” is a significant factor in determining what is marital property and what is separate property, and how property and debts will be distributed in a divorce proceeding. Other factors, such as spousal support and child support, often come into play as well.
State law varies on the recognition of legal separations, and how the topics above will be handled when a couple separates and/or when a divorce/dissolution is pending.
What is the requirement to get a divorce in Utah?
While in the state of Utah, the law is quite clear on cases about divorce. For a married couple that wants to divorce in the state must have fulfilled the following requirements:
1. The petitioner (the person who files the divorce action) and the respondent (the one against whom a divorce action has been filed) must be legally married.
2. Utah allows you to divorce based on irreconcilable differences.
3. The petitioner or the respondent must have resided within the state of Utah for at least three months before filing for divorce. This is also applicable to U.S military members who want a divorce. Either of the spouses can file a petition where the petitioner has been stationed under military orders.
4. If you are parents of a minor child, you or your spouse must have resided in Utah for at least six months prior to filing, although the courts may make exceptions in certain circumstances.
5. You may need to attend a Divorce Education class if you are parents of minor children. However, the court may nullify if it deems it is not necessary or have any impact on the parents
Once the couple filing for the divorce meets the requirements, then they can be able to file for a divorce in Utah. There are usually various reasons why couples file for divorce. These reasons vary from one couple to the other. Though the state of Utah has some set grounds in which the couple may register for a divorce.
Previously the state of Utah followed the “fault concept” during divorce proceedings. Fault concept meant that for there to be grounds for a divorce, the petitioner blamed the respondent or found fault with the spouse. However, in the year 1987, the state of Utah passed a law that allows divorce when there are “irreconcilable differences” such as when the parties can no longer “pursue the legitimate purposes of the marriage.”
What are the grounds for filing a divorce in Utah?
1. impotence at the time of marriage.
2. If the spouse has committed adultery committed after marriage.
3. The willful desertion of the other spouse for more than one year.
4. Willful neglect to provide the standard necessities of life.
5. Habitual drunkenness.
6. If the spouse has been convicted because of a felony.
7. Inhuman treatment to the extent of causing bodily injury or great mental distress, either mental or physical cruelty.
8. If the petitioner and respondent have lived separate and apart under a decree of separate maintenance for a period of three consecutive years — three years under separate maintenance decree.
9. Permanent and incurable INSANITY (must be established by competent medical testimony).
While filling for a divorce there are two distinctive parts involved.
Divorce occurs in two stages
1. Dissolving the marriage
2. Disposing of other issues such as; alimony to be paid, child custody, assets and debt division etc.
During divorce proceeding, both of these parts are usually handled by the court simultaneously. However, the couple may choose to handle the first part, dissolving of the marriage, in a court and then the second part, disposing of other issues outside court.
Do you require an attorney to file a divorce?
In the state of Utah, under the new law, a person can represent him/herself during a divorce proceeding. On the other hand, it is not recommended for a person to represent him/herself, because an average person may not fully comprehend the technicalities involved during legal proceedings, especially when the divorce is contested. Most people usually have no idea of the consequences of legal actions.
More on Custody
Child Custody, in a nutshell, is the protective guardianship or care over someone or something. In Utah, the custody of children is usually determined by checking the fitness of both parents and who is of the child’s best interest to live with.
Custody can be determined by both the respondent and the petitioner outside the court or independently by a judge, especially if the parents cannot agree. While resolving custody cases, there are usually two parts to consider:
1. Legal custody
2. Physical custody
Legal custody over a child means that you have the right, duty, authority, privileges and responsibility to make choices that directly impact the life and upbringing of the child/children. Some of these decisions include; the religion the child will be brought up under, the school the child will attend, major medical procedures that the child might undertake.
In Utah, the judges prefer to issue joint custody of the children to both the spouses which are usually in the best interest of the children if both parents have a say in the upbringing if the child/children. However, if you feel that the other spouse will neglect to share parenting decisions, the other spouse is abusive, the other spouse is not fit to make parental decisions due to the mental state or unfit behaviour. Then you can file for sole custody of the child and convince the judge the grounds as to why you are presenting your case.
Custody cases can be ruled in three different ways;
i. Joint legal custody
ii. Sole legal custody
iii. Split legal custody.
Joint legal custody
When the judge awards joint legal custody, it means that the spouses have to create a schedule for which they can be able to divide the time they spend with their children evenly. This can be split with alternating weeks, months half years, or years. If both the parents cannot be able to agree on a specific schedule, then the court can enforce one on them through a court ruling.
There is also another type of joint legal custody arrangement where the children stay in the family home while the parents come and go depending on their time to spend with the children. This is known as nesting and usually helps prevent the children from shifting all the time and reduces the cost of maintaining the children in two separate houses.
Most courts will avoid giving sole legal custody as it would not be in the child’s best interest if the ruling is passed. However, if sole legal custody is awarded, then this means that on a parent can determine the child/children’s health, education, moral and religious upbringing, residence and general welfare. The sole legal custodian can permit the child to, join the military if the child is not yet of age, get a tattoo, the school the child will attend etc. before eighteen years.
The parent who has not been awarded legal custody or joint legal custody is known as the non-custodial parent. This means that this parent, who is a non- custodial parent, does not have an input in making the decisions on matters concerning the children.
Split custody is when one parent is awarded sole custody of some of the children, and the other parent has sole custody of the other remaining children. However, split custody rulings are rare since it is usually in the best interest of the children if they are kept together. This is often to avoid emotional and psychological stress; it might cause the children if they are separated.
The second part involved in a custody determination is the physical custody of the child. Physical custody means the residence or place that the child will be brought up. This means that the children should spend a significant amount of time living with both parents and the holidays are split evenly. Joint custody usually works better when both parents live in the same area so that the children can have a sort of a healthy life
However, one parent may be granted sole physical custody of the child/children. In this case, the children will primarily reside with the sole custodian, and the non-custodial parent allowed visitation rights
During court proceedings, the judge usually factors in many aspects before choosing the custody, which will be in the best interest of the child/ children. Some of the things include:
• If both parents are capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection and contact between the child and the other parent;
• Whether both parents participated in raising the child before the divorce;
• The geographical proximity of the homes of the both the parents;
• The preference of the child/ children if the child is of sufficient age and capacity to reason to form an intelligent choice as to joint legal or physical custody;
• Whether the physical, psychological and emotional needs and development of the child will benefit from joint legal or physical custody;
• The ability of the spouses to give priority to the welfare of the child and reach shared decisions in the child’s best interest;
• The maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
• The judge considers the past and present ability of the parents to cooperate and make decisions jointly;
• If the petitioner and the respondent have any history of, or potential for, child abuse, spouse abuse, or kidnapping; and any other factors the court finds relevant.
Children who are of age and can communicate on their own to the judge can be asked which parent they may choose to live with. This will be taken into account by the judge during the final decision.
Free Consultation with Child Custody Lawyer
If you have a question about child custody question or if you need help with custody, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506