Temporary Separation and Separate Maintenance

It is not strictly necessary for a marital separation to lead to divorce. Sometimes spouses are unable to live together at present but hope to reconcile in the future. Or, perhaps, the spouses have no intention to ever live together but do not want a divorce. If the spouses are amicable or if there is nothing to fight about, such a separation could go for years without the need for legal help. But, sometimes, there are children. Or, disputed property or finances—particularly if one spouse needs support. If you are facing such a situation, Utah law provides a couple of options. It is possible to iron these things out in court without getting divorced. The two options are discussed below. Here at Christensen Law, our attorneys can counsel you regarding your options. Once you know how you would like to proceed, we can help you move forward.

Motion for Temporary Separation Order

For a small fee, either spouse may ask a Utah court for a temporary separation order. The court can then make orders regarding custody, visitation, support, property, etc. To qualify, the parties must be married to each other. Both must have lived in Utah for at least ninety days prior to filing for the temporary separation order. The order is temporary and, on its own, lasts for only one year. The year is basically long enough for the parties to either reconcile or move on to divorce. Indeed, temporary separation is treated as a half step toward divorce.

The parties must attend divorce education and divorce orientation. Either party has the option to file a divorce and consolidate with temporary separation order case. And, the fee for the temporary separation will count toward the divorce case fee. Temporary separation orders carry over into the divorce case until new orders or until the divorce trial. Temporary separation is best for when spouses hope to reconcile but intend to divorce if reconciliation does not happen.

Petition for Separate Maintenance

Separate maintenance is a something of a relic. It was an avenue for spouses who could not obtain a divorce but needed alimony and other support. Despite divorces now being easier to obtain, separate maintenance remains for those that desire it. Separate maintenance proceedings are similar to divorce proceedings in almost all respects but do not end in divorce. The court stops at the division of property and debt, alimony, custody, and child support. The responding party must be a resident of Utah. Separate maintenance is best for those who have no intention to live together but also have no intention of divorcing. It should be noted that one spouse filing for separate maintenance will not stop the other spouse from filing for divorce. Persons interested in separate maintenance should carefully consider their options and consider consulting an attorney.

Peter ChristensenTemporary Separation and Separate Maintenance
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Annulments in Utah

In Utah, the standard method of dissolving a marriage is divorce. However, in some cases, the parties may qualify for an annulment. When a court orders an annulment, the marriage, in the eyes of the law, never happened. Some people may find themselves in a situation where they need such an order. The most common situation would be where the marriage cut off a party’s prior right to alimony. There are two main reasons why Utah courts will grant an annulment. Convincing a judge to grant an annulment for either of those reasons is not always easy—even when the annulment goes uncontested.

You Can Obtain Annulments for Invalid Marriages

Utah has laws governing who can get married to who and how the marriage is to be performed. People who enter a marriage in violation of those laws can make good arguments for annulment. For example, Utah Law requires a marriage license. If the parties fail to obtain a marriage license or misuse their marriage license, an annulment might be possible. Other examples include incestuous marriages, bigamous marriages, and underage marriages.

You Can Obtain Annulments for Reasons Provided in Common Law

In addition to taking guidance from the Utah Code and court rules, courts refer to prior cases decided by appellate courts. The Utah Code explicitly authorizes courts to look at prior cases to see what other good reasons there might be for an annulment. Typically these reasons involve some sort of fraud on the part of one of the spouses. The fraud must be related directly to the marriage. It must also rise to the level where if one spouse had known the truth, he or she would not have gone through with the marriage. Examples are case-specific. The examples typically include spouses lying about the real reason they want to marry or about how they will really treat the marriage relationship.

Obtaining an Annulment Can Be Difficult

Because of no-fault divorce, it is much easier for the court to decide that the parties should be divorced. Deciding whether to annul a marriage is more difficult and involved. If one spouse is hoping to reinstate alimony, it may become even more difficult because, to reinstate a Utah alimony award, the prior spouse must have an opportunity to dispute the annulment. If you are considering an annulment, you should consider consulting with an attorney.

At Christensen Law, we have handled both divorces and annulments. Feel free to contact us at (801)303-5800 for a free consultation by phone or in-person.

Peter ChristensenAnnulments in Utah
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Unmarried Partners: Custody

When an unmarried couple has a child, the parent-child relationship is established by the following means:

Mother-child relationship:

(a) the woman’s having given birth to the child, except as otherwise provided as part of a gestational agreement;

(b) an adjudication of the woman’s maternity;

(c) adoption of the child by the woman; or

(d) an adjudication confirming the woman as a parent of a child born to a gestational mother if the agreement was validated or is enforceable under other law.

Father-child relationship:

(a) an unrebutted presumption of the man’s paternity of the child.  For example, he and the mother of the child have married and the child is born during the marriage or within 300 days after the marriage ended;

(b) an effective declaration of paternity by the man, unless the court rescinded the declaration or successfully challenged;

(c) an adjudication of the man’s paternity;

(d) adoption of the child by the man;

(e) the man having consented to assisted reproduction by a woman, which resulted in the birth of the child; or

(f) an adjudication confirming the man as a parent of a child born to a gestational mother if the agreement was validated or is enforceable under other law.

Without the establishment of the parent-child relationship, the duties and rights associated with that relationship do not exist. Examples include custody and visitation or child support. Once the parent-child relationship becomes established, the rules of custody and parent visitation apply no differently than if the couple had not yet divorced. The court uses the standard “best interest of the child” for determining custody. The factors the court considers are the needs of the child, the child’s bond with the parents, and the parenting skills of the parties.

Peter ChristensenUnmarried Partners: Custody
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Child Custody Considerations – part 3 – Joint Custody

In the past, I’ve listed a few of the factors courts will consider in making determinations for custody awards. Here, I’d like to talk in depth about what are perhaps the most important and compelling factors.

If you’re following along with the statute, regard U.C.A. 30-3- 10.2(d), which states, “whether both parents participated in raising the child before the divorce.” Another way of saying this is, who is the primary caretaker?

This is an important question and is also fairly easily demonstrated. The court will want to see what the parties did historically. The questions will be such as, who feeds, bathes and puts the children to bed.

Obviously, these aren’t the types of things a parent might easily look at a diary and say, on January 10, 2004, I gave Junior a bath, just like January 11, January 12, and so on and so on… unless that parent “always” did those activities.

There are, however, many things a parent can report with a great degree of accuracy and support. School records, for instance, are obtainable and very helpful. Who goes to a parent-teacher conference with the children? Does anyone volunteer at school? Who signs the child’s homework or progress reports? These are all examples of records that are regularly kept and easily ascertainable.

Another entity that keeps great records is doctor’s offices. Who is taking the children to their doctors and dental appointments? For younger children, who is checking them into and out of day care and pre-school?

These are all simple ways for the court to see who is actively parenting the children. I cannot overstate the importance of being involved in the children’s lives. For that matter, you can make your own record of how you spend your time with the children. Document things.

First of all, make time for the kids. One of the factors the courts will consider is the extent of bonding between the parent and the children, meaning the depth, quality, and nature of the relationship between a parent and child. A great example of this is when, for instance, daddy has a date night with each of the kids. It’s important to make time to spend with each one of the children. In addition to making time, document it. Keep a diary of activities you do with the children. Photographs and videos of activities make strong evidence.

The bottom line is that a court will be interested in who is and has been the primary caretaker to make a determination about how custody will unfold and how to award parent-time. It is important to be able to show the court that a parent seeking joint custody participated historically in raising the children and fostered a strong bond with the children.

Peter ChristensenChild Custody Considerations – part 3 – Joint Custody
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Child Custody Considerations – part 2

If you’ve ever heard anyone talk about their “parent-time” in traditional terms, you’ve probably heard the old saw “every other weekend and one night a week”.

This version of parent time is also called “minimum parent time” even though it is very typical. In 2015, the legislature, in their infinite wisdom, saw fit to expand the schedule for parent-time. They call this “optional schedule for parent-time”.

Minimum Parent-Time vs Optional Schedule for Parent-Time

The differences between the two can seem minimal, looking only at the differences in actual parent time. The differences, however, are significant for a couple of reasons. Under the minimum parent-time schedule, the non-custodial parent will get the children on alternating weekends from 6:00 p.m. on Friday (or sometimes from after school on Friday) until Sunday at 7:00 p.m. If you’re counting, that’s two overnights. In addition to that alternating weekend, one weeknight per week from 5:30 p.m. to 8:30 p.m. That’s NOT an overnight.

Under the new “expanded” parent-time, the alternating weekend goes from Friday at 6:00 p.m. (or after school on Friday) to the following Monday morning. In addition to that, the midweek visit is expanded to overnight. That’s two additional overnights in the same time period.

The operation of overnights is critical. Under the first, minimum schedule, it works out to be about 107 overnights per year for the non-custodial parent. Under the expanded parent-time, it turns into 145 overnights.

This is significant because of its impact on Child Support. This additional schedule moves the child support structure from “sole” custody to “joint” custody. Child support measures time with each parent based on how many “overnights” each parent has with the children.

To demonstrate the impact of that difference, consider a divorcing couple with two children. Assume custodial parent earns minimum wage and non-custodial parent earns $4,500 monthly. Under the minimum parent-time schedule, non-custodial parent would be obligated to pay $992.00 per month in child support. Now, compare the exact same income levels and a number of children under the expanded parent-time. Now the non-custodial parent’s obligation is reduced to $764.00 per month or about a 23% reduction in child support.

The New Parent-Time

The new parent time was not designed to simply reduce the non-custodial parent’s child support obligation. The legislature drafted this expanded parent-time with the consideration that, as I’ve written before, the state encourages healthy relationships between the children and both parents. To that end, the statute reads thusly: “the parents and the court may consider the following increased parent-time as a minimum when the parties agree or the non-custodial parent can demonstrate the following:”

Let’s examine why this was written this way. In the ideal situation, both parents will want the children to have and maintain a healthy relationship with the other parent and, therefore, agree to have an equal parent-time. Unfortunately, most cases are not the ideal situation. Many situations occur such that the custodial parent wants all of the parent-time and non-custodial parent to have none. There are many reasons for this, I don’t need to explain them… the reader can guess many of them.

When that is the case, however, the non-custodial parent has the opportunity to “demonstrate” that the expanded parent-time is appropriate. The statute goes on to list various factors that the non-custodial parent can demonstrate, of which we won’t list all of them, but a couple of important ones are how involved that parent has been in the children’s lives, whether the parent can facilitate the increased parent-time, among others. You can find the entire list in the statute at U.C.A. §30-3- 35.1.

When these issues present themselves, it’s important to understand the law and how it affects your case. A good Salt Lake City divorce attorney can help you navigate these new parent-time laws to help you get the most out of your divorce in Utah.

Peter ChristensenChild Custody Considerations – part 2
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GATHERING FINANCE INFORMATION ABOUT YOUR DIVORCE THROUGH DISCOVERY

Reaching a fair divorce settlement or preparing a good divorce case for trial requires information about the marital finances. You will want to know how much money is available and where it is. The judge will also need to know this information in order to make good decisions in your case. If your spouse managed the marital finances during the marriage, you may not know this information. Alternatively, perhaps you jointly managed finances, but your spouse has all of the paperwork. Still yet, perhaps you suspect that your spouse has been hiding away money or assets.

If you lack information or documentation about the marital finances, discovery can help you. Through the discovery process, you can gather information about the marital finances. There are a number of avenues open to divorce litigants to request information. Receiving a request obligates the recipient to respond. If their response does not satisfy the requester, he or she can ask the court for help to get the information requested.

Financial Disclosures

Whenever a family law case begins, the state automatically requires the parties to make financial disclosures. The financial disclosures involve a form where each party lists all assets, debts, expenses, and income. The legal system also expects parties to attach bank statements, loan applications,pay stubs, and tax returns to the declaration.

Interrogatories

In family law cases or divorce cases, each party can ask the other party ten questions. One or more of these questions might focus on family finances. For example, a question could ask a party to explain the family finances.

Requests for Production

In addition to ten questions, each party may make ten requests for production. One spouse might ask the other to produce two years of bank or financial statements. Alternatively, there can be requests for employment documents, tax documents, or other property documents.

Subpoenas

Some divorce litigants stubbornly refuse to provide information or otherwise attempt to cheat or game the system. In such situations, it is easier to go directly to the source. If it is known that an individual has an account with a certain bank or works for a certain employer, a subpoena can be issued directly to the bank or employer. A subpoena is a court order directing an individual to produce certain documents.

Peter ChristensenGATHERING FINANCE INFORMATION ABOUT YOUR DIVORCE THROUGH DISCOVERY
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WHICH STATE HAS JURISDICTION OVER YOUR CHILD CUSTODY CASE?—Part 1

Sometimes, parents who are disputing custody live in different states. This adds an extra wrinkle to a divorce or custody case. If the parents cannot agree about which state should have jurisdiction, they will have to turn to litigation. Sometimes, the courts from both states will need to take part. Even if the parents agree, the attorney may still need to take great effort to iron out the situation.

In Utah and most other states, the question of which state has jurisdiction is decided by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This act has been adopted by the state legislatures of most U.S. states. Take note that in discussing UCCJEA, this blog post speaks only in very general terms. There are exceptions and technicalities that may apply to your situation.

At Christensen Law, the attorneys are able to analyze your specific situation and advise you. With that said, here are some general guidelines regarding the UCCJEA. Typically, the state that should have custody jurisdiction is the child’s home state. A state becomes the child’s home state once the child has lived there with a parent for six months.

Until the child has lived with a parent in a state for six months, the child’s previous state of residence remains the home state, if the other parent continues to reside there. This means that a parent who takes a child and moves to another state should not be filing a custody case with the new state until at least six months have passed.

Additional Things to Consider

In some instances, if the child and parents have moved around enough, there may no state that qualifies as the child’s home state. Regarding that case, a state may claim jurisdiction if the child and at least one parent of the child have a significant tie to a particular state.

In other rarer instances, a state may have jurisdiction if other states or other states that should have jurisdiction have affirmatively decided to decline jurisdiction. One reason a court might refuse jurisdiction is if that court detects that a parent is gaming the system.

Peter ChristensenWHICH STATE HAS JURISDICTION OVER YOUR CHILD CUSTODY CASE?—Part 1
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Mediation and Divorce

Typically, if you decide to get divorced in Utah, the court will require you to participate in a mediation. Mediation can occur at nearly any point in the divorce process. But, you will be required to have participated in a mediation session before you can start scheduling a trial. Here are a number of things to keep in mind about mediation and divorce:

There Are Exceptions to the Mediation Requirement

If you can show good cause, the court may waive the mediation requirement. If there are concerns about the potential for violence at mediation, the court might waive mediation. Also, if circumstances make mediation impossible, the court might waive mediation. However, some courts are stubborn about the mediation requirement. If there is any possible way to mediate, you should go ahead and mediate.

Mediation Can Save You Money

Trials are expensive. Instead of going to trial, divorcing spouses could be dividing the money they would have spent on the trial. Or, they could be using that money to make alimony or child support payments. Admittedly, the mediation process also costs money. But, if you reach a mediated agreement, the divorce will cost a fraction compared to a trial.

Mediation Does Not Necessarily Place In the Same Room as the Other Party

Technically, mediation can involve both parties, their attorneys, and the mediator sitting around one big table. But, some mediators prefer, and any party can insist, that the parties be in separate rooms. The mediator will then go back and forth between rooms.

Attorneys Can Provide Valuable Assistance at Mediation

The mediator is there to facilitate a settlement and help explore options. The mediator has no obligation to warn you when the other party rips you off. Moreover, some mediators will not know whether the settlement agreement is legal or enforceable. An attorney can ensure that any settlement is as fair to you as it is to the other party. An attorney can also anticipate any legal or practical difficulties and ensure that your agreement avoids those difficulties. Additionally, an attorney can help you turn a settlement agreement into a divorce decree.

Peter ChristensenMediation and Divorce
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WHAT HAPPENS WHEN A PARENT RELOCATES OR WANTS TO RELOCATE FROM THE OTHER PARENT?—Part 3

In two previous blog posts, we discussed that in custody cases, a parent might decide to relocate far away. Long-distance relocation can result in a need to change the court’s previous custody/parent time orders.

Your current custody order might not already deal with long-distance relocation. If so, it is likely that Utah Code § 30-3- 37 will have an effect on your case. That statute provides what are becoming the default rules for such situations.

When you (or the court) are operating under Utah Code § 30-3- 37, you should keep some things in mind. Our two previous blog posts pointed out and discussed some of these things:

A parent’s long distance relocation can result in a change of custody. Parents wanting to relocate need to do it correctly so as to avoid unnecessary trouble and a bad outcome. Long-distance relocation can be a good opportunity for a noncustodial parent to gain custody. The legal process under Utah Code § 30-3- 37 will move quickly. You need to be well prepared if you are facing proceedings under Utah Code § 30-3- 37.

Failure to properly prepare for a hearing under Utah Code § 30-3- 37 can lead to an adverse result. Moreover, even a well-prepared and deserving parent may face a bad result at the hearing before the domestic commissioner. This blog post discusses what happens if you dispute the commissioner’s decision. Additionally, this blog post briefly discusses options after an adverse decision from a judge.

Unhappy Parents Can File an Objection to a Commissioner’s Decision Regarding Relocation

If you go to a relocation hearing and the domestic commissioner rules against you, you still have a chance to object. In Utah, domestic commissioners are not judges, and their “orders” are only recommendations. A recommendation is a court order unless/until a judge changes it. Unhappy

litigants have fourteen days from the recommendation to object and ask the judge to change the court’s order.

The ability to object to the commissioner’s recommendation is a second chance for a better decision from a judge. But, it is not necessarily a second chance to present a better case than you did to the commissioner. Rule 108 of the Utah Rules of Civil Procedure sets limits on objections.

It bars you from bringing the judge information you did not offer to the commissioner. This means you must do your best before the commissioner. If you are planning on initiating the relocation process or are facing a hearing, consider hiring an attorney to help. Regardless of whether you have counsel or not, the judge also may make a bad decision.

Unhappy Parents Can File an Appeal to a Judge’s Decision Regarding Relocation

Judges can make wrong decisions, too. If your objection to the commissioner’s recommendation is unsuccessful, you can appeal to a higher court. Alternatively, if you win in front of the commissioner but lose in front of the judge, you may want to appeal to a higher court.

An appeal is different from what you encounter at the trial level and much more complicated. It can be difficult to prevail on appeal in custody cases. Appellate judges look at transcripts and written documents. There are appellate rules that prevent appellate judges from reversing a lower court unless there is a clear error or abuse of discretion. If you are interested in an appeal, you should consult an attorney about your chances on appeal and consider hiring an attorney to write the appeal for you. If successful on appeal, the original judge will either have to order the result you desire or hold another hearing and eliminate any prior mistakes.

Peter ChristensenWHAT HAPPENS WHEN A PARENT RELOCATES OR WANTS TO RELOCATE FROM THE OTHER PARENT?—Part 3
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WHAT HAPPENS WHEN A PARENT RELOCATES OR WANTS TO RELOCATE?—Part 2

In a previous blog post, we discussed that in divorce, a parent might decide to relocate.  If they relocate far away, it may be necessary to change the custody order to accommodate the distance factor.

Some custody orders include language discussing how parents should deal with a long-distance relocation. There is also a statute, Utah Code § 30-3- 37, that provides default rules for how to cope with a long-distance relocation.

When dealing with relocation, especially when it involves Utah Code § 30-3- 37, keep in mind a number of things. Previously, we pointed out that long distance relocation can result in a change of custody. Parents that want to relocate need to do it correctly. Also, long-distance relocation can be a good opportunity for a noncustodial parent to gain custody. Something else to consider is how quickly the court proceedings will move if one of the parents take a long-distance relocation issue to court. If you have such a hearing in your future, you will want to come well-prepared for it. You should probably consider consulting an attorney or having an attorney prepare for and attend the hearing with you.

Under Utah Code § 30-3- 37, the custody arrangement in your divorce decree or custody order can permanently change based on a short hearing where nobody directly testifies or is cross-examined.

The non-moving parent is entitled to request a hearing. They can submit this request once they are notified of the pending relocation or discover that it has occurred. At the hearing, the court will consider whether the long-distance relocation is in the best interest of the child. If the court determines relocation is not in the child’s best interest, the court can change custody. This can happen if the parent planning to relocate follows through with the move. Regardless of which parent retains or gains custody, the court will also make other orders.  These orders are about how parent time and communication is to occur now that the parents live far apart.

The problem with this process is that in Utah’s more populous counties, the above-described relocation hearing is often conducted in front of a domestic commissioner. Commissioners typically consider affidavits and statements by attorneys as to what their client would say. They typically do not put witnesses on the witness stand. The hearings can be short. The evidence and arguments submitted are often subject to a page limit. With such a quick process, a parent that would normally retain or gain custody might lose custody. This happens because parents and attorneys can easily come unprepared or make mistakes at these short hearings.

In Closing

Fortunately, commissioners are not supposed to have the final say in Utah’s district courts. An unhappy parent can request a hearing before the judge with witnesses, evidence, and due process.

However, this hearing before the judge will not go well if the parent did not put on a good case before the commissioner. The hearing before the judge and what must be done to prepare for that hearing while still before the commissioner will be discussed in a future blog post. The takeaway from this blog post is that if you are about to request or attend a relocation hearing before a domestic commissioner in Utah, you need to be well prepared with all your materials and affidavits from yourself and witnesses. You also need to be ready for the potential fast pace of the process. At Christensen Law, we can help you in many ways. We can evaluate your options, prepare for the hearing, and put on your case at the hearing.

Peter ChristensenWHAT HAPPENS WHEN A PARENT RELOCATES OR WANTS TO RELOCATE?—Part 2
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