Divorce in Utah is referred to as Dissolution of Marriage and is conducted as a civil action, with one party, the Petitioner, filing a Petition for divorce, and the other party being named as a Respondent.
Residency Requirement: To file for divorce in Utah, either spouse must be a bona fide resident of the state and must have lived in the county of filing for the three months immediately preceding commencement of the action.
Filing: The Petition may be filed in the district court of the county where either spouse resides. If the Petitioner is a member of the armed forces of the U.S. who are not legal residents of this state, he/she may file for divorce if he has been stationed in the state for the three months immediately preceding the commencement of the action. No hearing for decree of divorce may generally be held until 90 days have elapsed from the filing of the complaint, provided the court may make interim orders that are just and equitable. The 90-day period shall not apply, however, in any case where both parties have completed the mandatory education course for divorcing parents.
Spouse’s Name: Although there are no statutory provisions for the restoration of a spouse’s name when divorcing, either spouse may request that his/her former name be restored on the Petition or the judge will honor the request.
Legal Grounds for Divorce
The court may decree dissolution of marriage for any of the following grounds:
Impotency of the Respondent at the time of the marriage;
Adultery committed by the Respondent after entering into the marriage;
Willful desertion of the Petitioner by the Respondent for more than one year;
Willful neglect of the Respondent to provide for the Petitioner the common necessities of life;
Habitual drunkenness of the Respondent;
Conviction of the Respondent for a felony;
Cruel treatment of the Petitioner by the Respondent to the extent of causing bodily injury or great mental distress to the Petitioner;
Irreconcilable differences of the marriage;
Incurable insanity; or
The spouses have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
To grant a divorce on the ground of insanity, the Respondent must have been adjudged insane by the appropriate authorities of Utah or another state prior to the commencement of the action and the court must find by the testimony of competent witnesses that the Respondent’s insanity is incurable.
Annulment
The following are prohibited and void marriages and they may be annulled for these causes:
• Marriages between parents and children;
• Marriages between ancestors and descendants of every degree;
• Marriages between brothers and sisters (half or whole);
• Marriages between uncles and nieces or aunts and nephews;
• Marriages between first cousins (unless both parties are 65 years of age or older, or if both parties are 55 years of age or older, upon a finding by the court that either party is unable to reproduce);
• Marriages between any persons related to each other within and not including fifth degree of consanguinity;
• When there is a husband or wife living, from whom the person marrying has not been divorced;
• Either party is at least 16, but under 18 years of age and has not obtained parental consent;
• Either party is under 16 years of age at the time the parties attempt to enter into the marriage, unless the party is 15 years of age and has obtained judicial consent;
• Marriage between persons of the same sex; and
• Re-marriage to a different spouse before the divorce decree becomes absolute, or in the case of an appeal, before the affirmance of the decree.
When there is doubt regarding the validity of a marriage, either party may demand its avoidance or affirmance in a court where either party is domiciled. However, when one of the parties was under the age of consent at the time of the marriage, the other party of proper age may not have cause against the party under age. The court shall either declare the marriage valid or annulled. A marriage may also be annulled for any of the annulment grounds existing at common law.
Property Division
In all dissolution and separate maintenance actions, the court and judge have jurisdiction over the distribution of property. Utah is an equitable distribution state. Therefore, marital property shall be distributed fairly and equitably.
The court shall include the following in every decree of divorce:
• An order specifying which party is responsible for the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage;
• An order requiring the parties to notify respective creditors or obliges, regarding the court’s division of debts, obligations, or liabilities and regarding the parties’ separate current addresses;
• Provisions for the enforcement of these orders; and
• Provisions for income withholding.
When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property.
Alimony and Support
In all dissolution and separate maintenance actions, the court and judge have jurisdiction over the payment of alimony. When determining alimony, the court shall consider, at a minimum, the following factors:
• The financial condition and needs of the requesting spouse;
• The requesting spouse’s earning capacity or ability to produce income;
• The ability of the paying spouse to provide support;
• The length of the marriage;
• Whether the requesting spouse has custody of minor children requiring support;
• Whether the requesting spouse worked in a business owned or operated by the paying spouse; and
• Whether the requesting spouse directly contributed to any increase in the paying spouse’s skill by paying for education received by the paying spouse or allowing the paying spouse to attend school during the marriage.
The court may consider the fault of the parties when making its determination regarding alimony. When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in awarding alimony. In determining alimony when a marriage of short duration dissolves, and no children have been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage. Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time. Unless otherwise stated in the divorce decree, any order for payment of alimony to a former spouse automatically ends upon the remarriage or death of that former spouse, unless the remarriage is annulled and found to be void. In that case, alimony shall resume, provided that the paying spouse was made a party to the action of annulment and his/her rights have been determined. Any order for payment of alimony to a former spouse terminates upon establishment by the paying party that the former spouse is cohabitating with another person.
Child Custody and Support
In all dissolution and separate maintenance actions, the court and judge have jurisdiction over the custody and maintenance of minor children.
Custody: The court shall consider joint custody in every case, but may award any form of custody which is determined to be in the best interest of the child. If the court finds that one parent does not desire custody of the child, it shall take that evidence into consideration in determining whether to award custody to the other parent. In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court shall consider the following factors:
• Whether the physical, psychological and emotional needs and development of the child will benefit from joint legal or physical custody;
• The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
• Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection and contact between he child and the other parent;
• Whether both parents participated in raising the child before the divorce;
• The geographical proximity of the homes of the parents;
• The preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
• The maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
• The past and present ability of the parents to cooperate with each other and make decisions jointly;
• Any history of, or potential for, child abuse, spouse abuse, or kidnapping; and any other factors the court finds relevant.
When determining any form of custody, in addition to the aforementioned criteria, the court shall consider the best interests of the child, the following factors, and any others the court finds relevant:
• The past conduct and demonstrated moral standards of each of the parties;
• Which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the non-custodial parent; and
• The extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child.
The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise. The desires of a child 16 years of age or older shall be given added weight, but is not the single controlling factor.
Courses for Parents of Minor Children
If the Petitioner and the Respondent have a child or children, a decree of divorce generally may not be granted until both parties have attended the mandatory educational course for divorcing parents. This course is designed to educate and sensitize divorcing parties to their children’s needs both during and after the divorce process.
The course shall instruct both parties about the following:
• The impacts of divorce on the child(ren);
• The impacts of divorce on the family relationship;
• The parents’ financial responsibilities for the child(ren); and
• That domestic violence has a harmful effect on children and family relationships.
This requirement may be waived if the court determines course attendance and completion are not necessary, appropriate, feasible, or in the best interest of the parties. There is also a mandatory divorce orientation course for all parties with minor children who file a Petition for Temporary Separation or for a Divorce. The purpose of the course is to educate parties about the divorce process and reasonable alternatives. A Petitioner shall attend a divorce orientation course no more than 60 days after filing a Petition for Divorce. A Respondent shall attend no more than 30 days after being served with the Petition. The divorce orientation course shall be neutral, unbiased, at least one hour in duration and include the following:
• Options available as alternatives to divorce;
• Resources available from courts and administrative agencies for resolving custody and support issues without filing for divorce;
• Resources available to improve or strengthen the marriage;
• A discussion of the positive and negative consequences of divorce;
• A discussion of the process of divorce;
• Options available for proceeding with a divorce, including mediation, collaborative law and litigation; and
• A discussion of post-divorce resources.
Support: The court shall include the following in every decree of divorce:
• An order assigning responsibility for the payment of reasonable and necessary medical and dental expenses of the dependent children including responsibility for health insurance out-of-pocket expenses such as co-payments, co-insurance, and deductibles;
• If coverage is or becomes available at a reasonable cost, an order requiring the purchase and maintenance of appropriate health, hospital, and dental care insurance for the dependent child and a designation of which health, hospital or dental insurance plan is primary and which health, hospital, or dental insurance plan is secondary;
• Provisions for the enforcement of these orders; and
• Provisions for income withholding.
In an order determining child support, the court may include an order assigning financial responsibility for all or a portion of child care expenses incurred on behalf of the dependent children, needed because of the employment or training of the custodial parent. If the court determines that the circumstances are appropriate and that the dependent children would be adequately cared for, it may include an order allowing the non-custodial parent to provide child care for the dependent children, needed because of the employment or training of the custodial parent.
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