Should I File for Divorce in Utah or Another State?

Typically, you file for divorce in the state where both you and your spouse live. It is only necessary to choose between states if the spouses to be divorced live in separate states. When faced with such a choice, there are some things to keep in mind.

Either State Can Issue a Divorce Decree

So long as one spouse lives in a state, a court of that state can issue a divorce decree. Either the resident or the non-resident can file the case. But, different states have different residency requirements for divorce purposes. In Utah, the residency requirement is three months in the same county.

One state’s Divorce Decree Might Address More Issues than Another State’s Divorce Decree

Most people imagine child support, custody, alimony, and property division as natural elements of a divorce decree. That assumption is not wrong. If applicable to the divorcing spouses, those issues must be worked out because of the divorce. And, the divorce decree is where that typically happens. However, each of those elements comes with its own jurisdiction and residency requirements. These requirements are not necessarily the same and do not work in the same way.

Before making orders on those issues, the divorce court must have jurisdiction. If you file for divorce where jurisdiction or residency is limited, you may find yourself with a limited divorce decree.

Take as an example a husband who moves to a new state and files for divorce. The new state can issue a divorce decree. But if the children are still at home with the wife, the new state will not make a custody decision. Alternatively, a wife might move with the children to a new state. The new state will issue a divorce decree. And, if additional requirements are met, the new state might issue custody orders. But, the new state will not award alimony unless the husband cooperates.

The Decision Can Be Complicated

Typically, it makes the most sense to file for divorce where the court can address the most issues. But your situation might be different. And, determining what court can address what issues can be complicated. At Christensen Law, we can help work through the analysis and options to see if filing your case in Utah is best for you. Additionally, at Christensen Law, we can help you if your spouse has already filed in Utah. Even when a case is already filed, it may be necessary to address jurisdictional issues.

Peter ChristensenShould I File for Divorce in Utah or Another State?
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Optional Minimum Parent-Time Plan

Typically, when the court awards one parent sole custody of a child, they award the other parent minimum parent-time. Utah Code § 30-3- 35 contains the standard minimum parent-time schedule. In Utah, minimum parent-time, or visitation, entails alternating weekends, one evening per week, and some holidays.

In 2015, the Utah Legislature passed Utah Code § 30-3- 35.1, which provides an optional minimum parent-time schedule. This optional minimum parent-time schedule provides more time for the noncustodial parent than the standard minimum parent-time schedule.

In some cases, the parents may agree that the optional minimum schedule is appropriate. In those cases, the parents can rely on that schedule as a good template. Attorneys or mediators can help those parents incorporate the schedule into a custody order or divorce decree.

In other cases, the custodial parent may prefer the standard minimum schedule instead of the optional minimum schedule. When that happens, the noncustodial parent’s only chance for the court to order the optional minimum is proving certain facts. In such situations, the attorneys at Christensen Law can assist in preparing the case and taking it to trial.

What does the optional minimum schedule entail?

Under the optional minimum schedule, the child stays with the noncustodial parent for one overnight per week. Then, every other weekend, the child stays with the noncustodial parent from Friday evening to Monday morning. Holidays are also divided between the parents.

What must the custodial parent prove for the optional schedule to apply?

First, the noncustodial parent must establish that he or she has been involved in the child’s life. Second, he or she must show an ability to communicate with the other parent regarding the child Third, that the noncustodial parent must be able to accommodate the extra time. Fourth, the noncustodial parent must show that the extra time would be in the child’s best interest. Finally, the noncustodial parent can raise any other good reasons.

Parents will want to show that they have had responsibility for the child in the past. Also, document any homework or extracurricular activity involvement. Meals, bath time, and bedtime are key activities, as are bonding and other similar activities.

Peter ChristensenOptional Minimum Parent-Time Plan
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Imputing Income for Utah Child Support Purposes

The issue of child support often accompanies divorce and other types of custody cases. Parents have a duty to provide support for their children. When the parents of a child live together, children tend to receive parental support without court involvement. But, if parents separate, it may be necessary to obtain a child support order.

In Utah, the amount of child support a court will order depends on the income of the parents. Usually, child support calculations are based on pay stubs or tax returns. However, sometimes a parent lacks employment history or is currently unemployed. In other cases, a parent may be attempting to game the system by maintaining a low income. If this is the situation, it might be necessary for the court to impute income.

What is Imputation in the Context of Child Support?

Imputation is when the court pretends that a parent has a higher income than they actually have. The imputed income amount is used to calculate the child support amount.

How likely is the Court to Impute Income to an Unemployed Parent?

With some exceptions, if the other parent asks, the unemployed parent will be imputed to at least minimum wage. This is based on Utah Code § 78B-12- 203(7)(c) setting the minimum imputation amount.

What are the Exceptions to Imputation?

There are four basic exceptions a parent can invoke to avoid an imputation of income. First, if daycare costs more than what the parent to be imputed can earn, there will be no imputation. Second, if a parent is physically or mentally unable to earn minimum wage, no income will be imputed. Third, if parents are engaged in training for basic job skills, they can avoid imputation. Fourth, if a child has an unusual need for the parent to be at home, imputation may be avoided. For any of these exceptions to apply, the situation must not be temporary in nature.

Is an Attorney’s Assistance Helpful in regard to Income Imputation?

Yes. If you are seeking to impute income to the other parent, you may be facing an uphill battle. Unless you are settling for minimum wage, you will need to build and prove your case. If you are facing an attempt to impute income to you, you will be facing someone building a case against you. An attorney can help you in either situation.

Peter ChristensenImputing Income for Utah Child Support Purposes
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What is a Custody Evaluation?

When parents separate, divorce, or otherwise split up, custody can become a hotly disputed issue. Custody and visitation will be disputed, as will the question of which parent should make what parenting decisions. If the parents cannot agree, the court will have to decide. Utah judges sometimes rely on custody evaluations to help them make custody decisions. If the judge in your case orders an evaluation, you will need to cooperate.

What is a custody evaluation?

Simply put, a professional evaluator studies the children and parents and then makes a custody recommendation to the court. The evaluator can be a social worker, psychologist, psychiatrist, or marriage and family, therapist. The evaluator can rely on interviews, questionnaires, psychological tests, and observation of the parents and children. Additionally, the evaluator might review whatever materials or documents the parents wish to provide. The custody evaluator is supposed to consider the child’s needs and the child’s wishes. Also, the evaluator should consider the existing relationships between the parents and children and the parents’ parenting abilities.

Once the custody evaluator has finished evaluating the situation, he or she will meet with the parents. At that meeting, the parents will learn about the evaluator’s recommendations and observations. Either parent may request a written report. Often, the evaluator’s recommendation encourages settlement of the case. But, if not, the parties can go to trial, and the custody evaluator may testify as an expert witness.

How does one obtain a favorable evaluation?

The best way to obtain a favorable evaluation is to be a good parent who cooperates with the other parent. Other blog posts from our site go into the subject of how to be and prove that you are a good parent.

However, even good parents can get poor evaluations. So, even good parents will want to appropriately prepare for the evaluation. When interacting with the evaluator, it is best, to be honest, calm, and rational. Do not try to pass yourself off as something you are not. Always focus on what is most important, and remember that sometimes less is more. If you perceive problems with the other parent, focus on facts and the evidence. Be objective. Your time with the evaluator is not a good time to bash the other parent. Rather, the focus should be on what the children have experienced and what they need.

At Christensen Law, we can help you with your custody case. If a custody evaluation is involved, we can advise you further and tailor our advice to your situation.

Peter ChristensenWhat is a Custody Evaluation?
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Winning a Child Custody Case

In Utah, there are a variety of situations where a court may need to make child custody decisions. These cases include divorce, custody, parentage, adoption, custody modification, visitation, parent time, etc. In these cases, the court will be interested in making an order that is in the best interest of the children.

It is in the best interests of children to live with and spend time with good parents. Parents wanting maximum custody or parent time need to prove they are good parents. If you are not already a good parent, now is a good time to become and remain a good parent. If you already are a good parent, you need to start looking for a way to demonstrate it.

At Christensen Law, we can help you evaluate your case and provide you specific suggestions to improve your chances. Below, we provide some generic ideas for ways to be and show that you are a good parent. For questions about how these suggestions should apply to you, feel free to contact us about your case.

Homework

If your child is in school, he or she probably has homework. A lot of children need and appreciate help with homework. Parents of younger children sometimes are required to sign off on homework completion. A copy of the sign-off sheet with your initials on multiple assignments can help your case. Alternatively, being able to display a thorough knowledge of your child’s homework requirements and academic situation is persuasive.

Doctor Visits & Medical Concerns

Children need their parents to look out for their medical needs. Your arguments are persuasive if you can show that you have prudently cared for your child’s medical needs. Being at the doctor visit itself is good. If that is not possible, being aware of the visit and the needed treatment is good.

Sharing Information with Other Parent

Being involved with your child’s homework and medical needs is great. Being the only parent who knows about the child’s medical and educational situation is compelling. But, it will hurt you if the other parent is in the dark because you excluded him or her. If you are taking the child to the doctor, let the other parent know. If there are homework struggles or needs, let the other parent know. It will help your child to have both parents in the loop and looking to help. Moreover, sending an email to the other parent creates evidence. It shows you are involved and it shows that you are cooperating—a double win.

Peter ChristensenWinning a Child Custody Case
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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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