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”).

Peter ChristensenCan 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.

Peter ChristensenA 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.

Peter ChristensenThe Right of First Refusal
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Orders to Show Cause and Contempt

There are penalties for ignoring orders made by Utah courts in divorce, custody, or other family law cases. If you are waiting for child support, alimony, or money from someone, this is good news. It is also good news if the other parent is giving you trouble with custody or parent time. But, if you are the one behind on payments or creating custody problems, it is bad news.

Either way, the attorneys at Christensen Law can give you a hand. You will need help putting your case together or preparing your defense. If you are putting a case together, legal assistance can be a good investment. If you are defending, assistance can help you avoid penalties. Each case is unique, but below are some general tips that may be helpful. Our firm offers free half- hour consultations if you would like to delve into your specifics.

Documentation is Key

If you want to prove that the other party has done something wrong, you need to prove it. Vague allegations or defenses are not ideal. If you are facing an accusation that you have not made payments, your best defense is proofs of payment. If you are being denied parent time, you will want to show up a calendar.

Make it Worth Your Time or Your Attorney’s Time

Attorney fees for order to show cause documents and the hearings can easily exceed $1,000-$2,000. This is particularly true if the attorney and his/her staff must sift through a lot of material. Therefore, you might not want to bring an order to show cause for small things. However, the prevailing party is sometimes awarded attorney fees. Though, the other party might not be paying child support or alimony because of a lack of money. In which case, it might not be worth putting them in a position where they spend money on an attorney.

You Must Prove Specific Things

Courts do not penalize people just because the opposing party is unhappy or does not like them. The complaining party must prove the specific elements of contempt. Generally, they need to show the other party knew of the order, failed/refused to comply, and could have complied.

Peter ChristensenOrders to Show Cause and Contempt
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What To Do With Your Case After Trial

Obviously, losing at trial is not a good thing. However, trials are just legal battles in the wars known as cases. Cutting your losses after a bad trial might be the best option. But, before you give up, considering your options may be a worthwhile endeavor.There are post-trial options regardless of whether your case is domestic, civil, juvenile, or

There are post-trial options regardless of whether your case is domestic, civil, juvenile, or criminal in nature. At Christensen Law, we can review your case and help you analyze your options. We have experience with pursuing and defending against post-trial battles in divorce cases, custody cases, civil cases, criminal cases, and juvenile cases. Below, we discuss some of the more common options you may pursue after a bad trial.

Appeals

Appealing the outcome of your trial is one of the more commonly known options. In an appeal, you take the record from the trial court and ask a higher court to review it. The appellate judges put themselves in the trial judge’s shoes and review his or her decisions. An appellate court has the ability to modify or completely reverse the result of the trial.

Post-Judgment Motions

With a post-judgment motion, you can ask the trial judge to reconsider. You can also ask for a new trial. Sometimes this is effective, and sometimes it is not. However, it is worth attempting before you try an appeal for two reasons. First, a post-judgment motion will probably be cheaper than an appeal. Second, a post-judgment motion helps preserve issues for appeal.

Cut Losses and Prepare for the Next Case

Sometimes, the best option will be to cut your losses and conserve your resources for the next war. However, this strategy typically only works if you are involved in a divorce or custody case.

It can also work if you litigate often and can get more bang for your buck in another case. With family law cases involving young children, it is not uncommon to go back to court.

Sometimes one parent sees a good reason to modify custody. Other times a parent is not following the court’s orders. If you got burned the first time, you can analyze how things went and prepare to not get burned again. And on the flip side, if you won, you may want to anticipate what future challenges you may face.

Peter ChristensenWhat To Do With Your Case After Trial
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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.

Peter ChristensenHow 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.

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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