Dealing with an Adverse Custody or Financial Decision

In a Utah divorce or custody case, you may find yourself up against an adverse custody or financial decision. If you have any desire to challenge the decision, you must act fast. There are almost always deadlines to challenge a court’s decision. Those types of deadlines are not forgiving and can prevent you from obtaining relief you might deserve. Your options for challenging the decision depend on what kind of decision it was.

The attorneys at Christensen Law can help evaluate your situation and make specific recommendations. They can also help you carry out the recommendations and provide advice tailored to you. For informational purposes, we provide some generic observations below.

Commissioner Decisions

In Utah, a lot of family law court hearings are conducted before commissioners. Commissioners are like judges, but instead of making orders, they recommend orders. Their recommendations are court orders unless changed. If you disagree with a recommendation, you may object to it within fourteen days. The fourteen days begins when the commissioner makes the recommendation in court or when the commissioner issues a written recommendation. A judge will take your objection into consideration.

Judge Decisions

There are a variety of avenues available for challenging a judge’s decision. The availability of these avenues depends on the status of your case. If the judge’s decision is not a final judgment, the judge can reconsider his or her decision. If there is a final judgment, it may be possible to file a motion for additional findings or new trial. Such motions can lead to altered decisions. If you have exhausted options that will result in the judge changing the decision, you can appeal. An appeal involves asking a higher court to review the decision for error. An appeal can be complicated and expensive, so it is worth trying the other options first. Pursuing those options can also help improve your chances on appeal.

Dealing with an Adverse Custody or Financial Decision
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Mandatory Divorce Education Classes

When two people start down the path of divorce, there are a lot of issues to consider. None of which are unimportant. It is a process and there are a lot of boxes that must be checked. One of those boxes is a “Mandatory Divorce Education Class”. When the court says mandatory, they mean it.

A court will not allow certain steps in the divorce process to be taken without first taking the class.Because of the nature of the class, it really is essential that it be one of the first steps in the process.

What to expect in the class

The class can be taken online or live at the courthouse. The class usually lasts about one hour. In thecourse, the instructor will talk about such things as:

  • Alternatives to divorce;
  • Resources available from the courts for resolving custody and support issues without filing for divorce;
  • Resources available to improve or strengthen the marriage;
  • The positive and negative consequences of divorce;
  • A discussion of the divorce process;
  • Divorce and its impact on children and family relationships as well as financial responsibilities to the children;

Usually, by the time couples have filed for divorce and are required to take the course, the first few items on the list have already been decided. Nevertheless, the court wants couples to really understand what they are about to do. That’s why the court requires the class early on in the process.

What if I don’t take it early on?

As already stated, the court requires the class to be taken before certain other events take place. This is critical. Keep in mind that a divorce may take quite a bit of time to get from filing to divorce decree. It is not unusual for a contested divorce to take over a year to complete.

In the early stages of the process, however, a party may ask for temporary orders, i.e. custody or support. A motion for temporary orders is a subject big enough for its own blog, but essentially, it does what it says – it provides temporary support or custody orders while the divorce case proceeds down its long and arduous road. It is often critical for a party to receive some sort of support, be it alimony, child support or some form of relief before the divorce decree is issued.

What else is there?

A party may file a motion for temporary orders early on in the process, but a court will not hear your motion unless and until you have taken the divorce education class. Let’s say your opposing party files a motion for temporary orders asking the court to give them full custody of the children and ordering you to pay child support. Assume further that you file a counter-motion for temporary orders and you ask for full custody of the children and child support and alimony. When it comes time to hear the motions, the court informs you that because you have not yet taken the divorce education class, the court will not hear your motion and therefore, none of the things you’ve asked the court for can be granted. That’s an easy win for the other side. The divorce education course is critical.

Divorce can be a nasty and challenging process. Having a good divorce attorney can help you navigate the murky waters of the process.

Mandatory Divorce Education Classes
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Dealing With Medical Expenses in a Post-Divorce Context

Utah law allows a Court to issues orders regarding the payment of medical expenses. These expenses must be reasonable and necessary ( and they include dental) for the dependent children. The order for the payment of medical expenses is in addition to the standard monthly child support. Depending on the child and situation, reasonable and necessary medical expenses can become expensive for any parent to afford alone. It is critical that every divorced parent follow the Court’s orders regarding medical expenses. The reason for this is that no party becomes solely responsible for those costs.

The Court will determine how to allocate the additional medical expenses between the parties. The Court will typically order the parties to share those expenses equally. However, a Court may order the costs to split pro-rata according to the parties’ income if a substantial difference exists between their earning capabilities. The Court will also designate the party who shall initially pay the bill. The other parent will then need to reimburse the paying parent for his or her share of the medical bill.

Typically, the party who took the child to the doctor is the party who initially pays the bill. However, the Court’s order will ultimately dictate who is responsible for the initial amount. It is the paying parent’s responsibility to make sure he or she gives a copy of the bill to the other parent and request reimbursement for his or her share.

3 important tips to follow when dealing with medical expenses in a post-divorce context:

  • Seek medical attention immediately if it is an emergency. If it is not an emergency, consult with the other parent regarding the treatment, the cost, payment options, and any reasonable alternatives. A parent who unreasonably incurs expenses without consulting the other parent may find themselves solely responsible for the expense.
  • When you receive the bill for the medical expense, immediately send a copy of the bill to the other parent. Do not allow them to accumulate. The Court will generally state that requests for reimbursements must happen within a certain amount of time. A parent who fails to request reimbursement in time may find out that they unfortunately waived the right to receive reimbursement by failing to notify the other parent of the expense.
  • Send the request for reimbursement with a copy of the bill or invoice to the other parent via e-mail that way you have a copy of what was sent and when it was sent. You will have proof that you made the request if there is ever a dispute about whether or not you ever requested to be reimbursed.
Dealing With Medical Expenses in a Post-Divorce Context
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Custody Evaluation: Why Is It Important and What Comes After?

What is a custody evaluation?

In Utah, the courts sometimes order custody evaluations. This can happen in divorce, paternity, modification, or other custody cases. Basically, the court with input from the parties appoints an evaluator. If available, the evaluator will inform the court. Afterward, the evaluator is given standard instructions, and the parties are ordered to cooperate with the custody evaluator. The parties will likely visit with the evaluator, undergo assessments, and have a chance to share concerns. Eventually, the evaluator informs the parties and court that the evaluation is done or soon will be done.

What happens after the custody evaluation?

After the evaluation, the attorneys, parents, and evaluator will have a meeting. At the meeting, the custody evaluator will verbally inform everybody present of his or her conclusions. Often, a mediator becomes present and involved. The parties will be able to take advantage of the ability to mediate in light of the evaluation results. The results of the evaluation can have a number of effects on the mediation. The evaluation might clarify what is important or not important. The evaluation might also serve as a reality check for one or both of the parents. If you do not reach a settlement agreement, the case will eventually go to trial. If requested, the custody evaluator will prepare a written report and will be available to testify at trial.

What happens if the custody evaluator strongly favors or disfavors a particular parent?

As noted above, the custody evaluation can serve as a reality check. The evaluation might discourage one parent from moving forward on the case. On the other hand, it might give the other false confidence. The custody evaluator is not the judge. Also, the recommendation will not necessarily become the order of the court. If there is a custody evaluation in your case, consider hiring an attorney for the meeting. The attorney can advise you about the effect the evaluation has on your case. Also, if you would like to settle based on the evaluation, the attorney can help craft an agreement with which you and the children can live.

Have a legal question? Schedule a free consultation today!

Custody Evaluation: Why Is It Important and What Comes After?
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Can Alimony Be Modified?

If you pay or receive alimony, it is possible for you to petition the court. This petition will allow you to change the amount you are paying or receiving. The court has broad discretionary powers in the initial instance and in modification proceedings. Also, the court will only overturn this on appeal if in the presence of clear abuse.

Rules of Alimony Modification

Under Utah Code Ann § 30-3- 5(8)(i) and § 78B-14- 211, Utah Courts maintain continuing, exclusive jurisdiction to modify alimony awards throughout the existence of the support order based on a substantial material change in circumstance not foreseeable at the time of the divorce. See also, Moore v. Moore, 872 P.2d 1054, 1055. You can consider a change material if it relates to the basis upon which the original award from the trial court. Mineer v. Mineer, 706 P.2d 106, 1062 (Utah 1985).

If the parties involved reasonably contemplated a change in circumstances at the time of divorce, then the court does not consider it not legally cognizable as a substantial change in circumstances in modification proceedings. Dana v. Dana, 789 P.2d 726, 729. In order for a material change in circumstances to be contemplated in a divorce decree there must be evidence. This evidence should come preferably in the form of a provision within the decree itself, that the trial court (or the parties) anticipated the specific change. Durfee v. Durfee, 796 P.2d 713, 716.

The rule of modification has limits only to those needs that existed at the entering of the decree of divorce (unless the court finds extenuating circumstances that justify that action). Finally, the court generally does not consider the income of any subsequent spouse of the pay or, except the court may consider that spouse’s ability to share living expenses. See Utah Code Ann. § 30-3- 5(8)(i)(ii)&(iii).

Continued…

In a Utah Court of Appeals case, Wall v. Wall, 2007 UT App 61, Mr. Wall petitioned the court to terminate his alimony obligation on the basis of Mrs. Wall’s completion of college and becoming qualified for full-time employment. The Court of Appeals upheld the trial court’s ruling that either her completing a college degree or her getting a job, or both, received consideration at the time of divorce. The Court found evidence of this in the trial court’s Findings of Fact (which contained the following statement: Mrs. Wall is a full-time student with limited recent work experience) and in Mrs. Wall’s complaint (which stated that she was attending college “in an attempt to obtain skills which would allow her sufficient income to support herself”).

Have a legal question? Schedule a free consultation today!

Can Alimony Be Modified?
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A Bird’s Eye View of Child Custody

In a perfect world, people would not get divorced and families would not split up. Since we don’t live in a perfect world, couples split up and families break up. Divorcing couples with children have a very important consideration – child custody.

When we talk about custody of minor children, it is important that we do not lose track of each parent’s fundamental “liberty interest” in the care, custody and management of their children. Put another way, a parent has a “fundamental right, protected by the Constitution, to sustain his relationship with his child[ren].” State in re Walter B., 577 P.2d 199, 124 (Utah 1978)

Of course, the most common context of discussing custody of minor children is in the divorce context. And, in that case, as stated above, each parent has a fundamental “liberty interest” in their children.

What’s my point?

It is a common misconception that when a couple with children divorce, the children will automatically be given to the mother, with father having “minimum” parent time (every other weekend and one night per week). It’s important to recognize the word “minimum” in that sentence. Do not lose track of the fact that father has just as much interest in the care, custody and management of the children as mother does.

The trick is balancing how much parent-time and custody each parent will get. Obviously, when couples split up they go separate ways and children can’t be in two places at once. Each parent has a right to have custody in some form or other.

Legal Custody vs Physical Custody

Two different forms of child custody exist. One is legal custody, which means being able to make decisions about the children, i.e. where to go to school, church, medical decisions and such. The other is physical custody. Who is going to be the primary caretaker. Both of these classifications of custody also have two varieties. One is joint custody and the other is sole custody. There can be various combinations of these forms of custody. For instance, a parent can share “joint custody” with the other parent and have sole “physical custody”. This means that both parents are involved in the decision-making of the children’s lives but one is the primary caretaker and that’s who the children live with.

Not every parent is situated for joint legal and joint physical custody. Each case is fact specific. But, as every parent has a right to some form of custody, neither parent can take this right lightly or discount it. A good family lawyer can help navigate through the treacherous waters of divorce and custody considerations.

A Bird’s Eye View of Child Custody
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The Right of First Refusal

The right of first refusal is a common provision found in most, if not all, divorce decrees or parenting plans.  Divorced parents should understand the meaning of these provisions and properly follow them.

What is the Right of First Refusal?

The right of first refusal gives the non-custodial parent a preference in caring for the children. This occurs when the custodial parent cannot provide care for the children during his or her parenting time. The provision will dictate how long the custodial parent will need to be unavailable before the custodial parent needs to offer time to the non-custodial parent, usually two to three hours. The parent who has received the additional time has no obligation to exercise it. The court typically requires the parent exercising the right to pay and arrange for the transportation of the children.

How does the Right of First Refusal Work?

For example, imagine that the parents of three children get divorced. In the decree, the mother receives primary physical custody of the children and the father receives reasonable parenting time. The right of first refusal in the decree provides that in the event that one parent is unable to watch the children for two or more hours during his or her parenting time, that parent must offer the other parent the opportunity to be with the children.

If the mother will be away from the home and children for two hours one evening, the mother needs to offer the father the opportunity to watch the children during that time before she can have another family member or babysitter watch the children. Should the father decides not to exercise the right, the mother is free to find another babysitter.  She can also ask a family member to watch the children while she is gone. If the mother will be gone less than two hours, she does not need to offer that time to the father. If the father exercises the right, he will need to pick up the children from the mother.

Why is the Right of First Refusal Important?

The right of first refusal serves two purposes. The first and most important purpose is to allow the non-custodial parent additional time with his or her children. The law recognizes that a parent’s role with his or her children is superior to all other parties. If a parent can spend additional time with his or her children, then that parent should have that time.  The children should have time with their parents instead of a babysitter or another family member.  The second purpose of a right of first refusal is to help the parties save money and avoid additional childcare expenses.

It is critical that a custodial parent offer the non-custodial parent additional parenting time under the right of first refusal. A custodial parent who refuses to offer the other parent additional parenting time according to the right of first refusal can find themselves before a judge and answering for his or her noncompliance.

The Right of First Refusal
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How Attorneys Can Save You Money

Technically, you can get through a divorce or custody battle without an attorney. Particularly, in Utah, the court system has gone to a lot of effort to provide forms and templates. For some cases, there are even online wizards that can put together many of your court documents. Additionally, if you appear in court without an attorney, the commissioner or judge will be reasonable with you. But, with that said, there are still compelling reasons for why you should invest in an attorney.

One Size Does Not Fit All

Templates can help you present your case to the judge. But a generic template does not always fit your unique situation. Nor does the template tell you what the law is or how other laws will affect your case. The generic motion template also does not tell you what you can ask the court to order. Nor do the templates explain what you need to be doing from the start to prepare for a potential trial.

Divorce and Custody Cases are Emotionally Rough

Court cases are adversarial by nature. When the opposing party presents their materials, you will not be pleased. And, in court, you will find it difficult to deal with your case on both an emotional and logical level. In settlement negotiations, you may find it rough to stand your ground alone. This is particularly true if you have a mediator or custody evaluator who does not seem to favor you. You may not realize that the law and the judge might favor you. At every stage of the litigation, having the assistance of an attorney to advise you is invaluable.

It Is Cheaper to Get a Good Outcome at the Beginning

When you go into court for the first time, you want to get it right. Once the judge has made a decision, it becomes harder for an attorney to help you sway the judge the other way down the road. It is not uncommon for us to work with clients who have decided to hire an attorney after getting poor results in court. It is better late than never, but where possible, it would be better to hire an attorney in the beginning. Money also plays into it. Court battles involve costs that can equal or exceed the attorney fees. If you have to go it a second round with an attorney, you may have to incur the same costs again.

At Christensen Law, we can work with you to improve your chances regardless of where you are in the process. We are convinced that for the above reasons, and others, hiring an attorney is a good investment.

How Attorneys Can Save You Money
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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.

Should 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.

Optional Minimum Parent-Time Plan
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