1. What is no-fault divorce and is it available in Utah?

Answer: A no-fault divorce means that the court grants the divorce without making any inquiry or findings into whose fault it is that the marriage is dissolving. Utah recognizes and grants no-fault divorces.  In order to have a no-fault divorce, the party who is filing for the divorce simply has to list the grounds of the divorce as “irreconcilable differences.” If irreconcilable differences is listed as the grounds for the divorce, the court will grant the divorce without making any further inquiry about the grounds (or reasons) for the divorce.  You should be aware, however, that the court may inquire into the circumstances of the marriage when it addresses other issues, particularly custody of minor children and alimony.

2. What is mediation and will we have to go to mediation?

Answer: Mediation is the process of hiring a neutral third party to meet with the parties to help them resolve the issues in a divorce.  Under Utah law, if the parties are unable to agree at the outset about the terms of the divorce, the parties must attend at least one mediation session and split the costs of the mediator.

In some mediations, the parties and their attorneys meet together with the mediator to discuss the case.  Once the mediator has a good feel for the case, the parties will go to separate rooms and discuss the case with the mediator.  In other mediations, the parties do not meet together and the mediator arbitrarily picks a party to meet with first.

After the parties have had an opportunity to discuss the case with the mediator separately, the mediator carries offers between the parties until they reach a settlement or it becomes clear that they will not reach an agreement.

The parties always have control over whether they reach an agreement at mediation.  If they reach an agreement, the agreement is put into writing and the parties sign the agreement before they leave the mediation.  If the parties do not reach an agreement, the mediator has no authority to impose a resolution on the parties.  So the parties must attend mediation, but they are not required to reach an agreement at the mediation.

3. How does the court calculate child support?

Answer: Utah’s legislature has adopted guidelines on child support.  Under the statutes and the rules, the parties must exchange complete financial information. Child support is calculated by determining the income of each parent, the number of children, and the time the children will spend with each parent. Occasionally, additional information about the parents’ other child support obligations or children is also included in the calculation.  The information is put into a worksheet, which tells the court and the parties how much the child support will be.  The child support calculated using the worksheets is presumed to be correct. Although the statutes give the courts authority to depart from the guidelines, they do not generally do so.

4. What is the difference between legal custody and physical custody?

Answer: Physical custody is an issue of how much time the children spend with each parent.  The time is usually measured in the overnights the children spend with each parent.  If the children spend more than 110 overnights with each parent, the parents have joint physical custody.  Joint physical custody affects how much child support the non-custodial parent has to pay.  On the other hand, if the parties have joint physical custody, the non-custodial parent has to pay a share of the children’s expenses in addition to paying child support.

Legal custody is the right to have a voice in the children’s lives, especially in issues such as education, religion, driving and other issues.  If the parents have joint legal custody, neither parent can make these important decisions without consulting the other parent.  The parties must also have a parent plan which describes how they will co-parent the children.  The parent plan must include a dispute-resolution process, and the parties must follow the dispute resolution process before bringing issues to the court.

5. What is standard visitation?

Answer: Standard visitation is actually the minimum amount of time a parent will get to spend with his or her children.  Standard parent time is 1) every other weekend from Friday afternoon until Sunday evening, 2) one weeknight per week from 5:00 p.m. to 8:30 p.m.–if the parties cannot agree on which night this will occur, it occurs on Wednesday night, 3) four weeks during the summer, and 4) half of the holidays each year.  The holidays are usually split according to a schedule the legislature has created.

A court will not award a parent less than standard parent time unless the court believes that the parent is a danger to the children.  In making this determination, the court can consider issues such as 1) alcohol or drug use, 2) the parent’s history of violence or physical abuse of the children, 3) other kinds of abuse, 4) the parent’s living conditions, including the ability to provide proper facilities and a stable environment, and 5) other issue affecting the parent’s ability to care for the children and the children’s safety.

Even if the court believes that there are issues which make the parent a risk to the children, the court will generally try to find ways to provide parent time.  Those methods usually include providing some form of supervision for the parent’s parent time.  Only in extreme cases will a court deny all parent time.

6. What if my spouse and I cannot agree on custody or a schedule for the children?

Answer: The courts encourage parents to agree on a parent-time schedule, provided that both parents receive at least standard parent time.  If the parents agree to more than standard parent time, the court will usually approve the schedule unless the court finds it is not in the best interests of the children.  For instance a schedule which provides for equal parent time for both parents may not be workable for school-age children unless the parents live close to each other.

If the parties cannot agree on a parent-time schedule, the court will usually order them to obtain a custody evaluation.  This evaluation is performed by a psychologist or social worker and contains the evaluator’s recommendation for a parent-time schedule.  The parties generally share the costs of the custody evaluation.

The evaluator’s recommendation is not binding on the court, but it usually carries a great deal of weight.  The trend is that most evaluators will recommend more than standard parent time, unless one of the parents has significant issues.

7. How does the court determine alimony?

Answer: There are many factors which a court considers in determining whether to award alimony and how much alimony to award.  The two most important factors are whether the receiving spouse needs alimony, and whether the paying spouse has the ability to pay any alimony.

The issue of the requesting spouse’s needs includes that spouse’s ability to earn income to meet his or her own needs.  In addition, the needs of the requesting spouse are measured against the standard of living the couple enjoyed during their marriage–it is not simply a measure of how much money the spouse needs to stay off of welfare.

In making determinations of alimony, the court can also consider claims that a spouse is voluntarily unemployed or voluntarily underemployed.

Unfortunately, although there are factors the court must consider in making a decision on alimony, the factors are so flexible and depend so much on the individual circumstances that it is impossible to predict how much alimony a court will award in any particular case.

8. How do I start a divorce?

Answer: A divorce is started when one spouse files a petition for divorce with the court.  The petition is served on the other spouse, who has 20 days after service to respond.  The spouse who files the petition is called the petitioner and the other spouse is called the respondent.  The petitioner has to pay filing fees to file with the court and also pays fees to have the petition served on the respondent.  If the parties have minor children, they must attend classes on helping their children adjust to the divorce.  The parties must also wait 90 days from the time the petition is filed until the divorce becomes final.

9. How long does a divorce take?

Answer: If the parties agree on all of the terms of the divorce and take the divorce classes quickly, the substance of the divorce can be worked out in a couple of weeks.  Under those circumstances, however, the parties must still wait for the 90-day waiting period to expire.

If the parties are unable to agree on the terms of the divorce and have a multi-day trial, the divorce may take two years or more.

10. How much will a divorce cost?

Answer: The cost of the divorce depends on the number of issues the parties disagree on and how bitter the disagreements become.  If the parties agree on all of the terms of the divorce, the divorce may cost $2,000 or slightly less.  If the parties disagree on every term and go to trial on each issue, the divorce may cost $20,000 or more.

11. What is a court commissioner and what does he or she do?

Answer: A court commissioner is a judicial officer who works on divorce and family-law cases.  The commissioner makes decisions on preliminary matters and helps the parties frame the issues for trial.  If a trial is necessary, however, the commissioner transfers the case to a district court judge for trial.

12. Is there an advantage to filing first?

Answer: In the past, there was sometimes an advantage to filing first, especially for women.  This is no longer the case, and it does not matter who files in the court first.

13. Should I get a protective order against my spouse?

Answer: Protective orders are separate from divorce actions.  In order to obtain a protective order, you must show that your spouse physically abused you or has made a credible threat to physically abuse you.  You do not need to show physical abuse to get a divorce.  Occasionally, parties attempt to get an advantage in a divorce case by obtaining a protective order.  This is improper and may actually hurt your credibility with the court in the divorce action.