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DIVORCE PROCEDURE

Posted by: In: Newsletter Archive 25 Mar 2015 Comments: 0

BY JACOB R. POWELL

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

The goal of every lawsuit is to get court orders. In a divorce case, the desired court order is a Decree of Divorce. A Decree of Divorce can generally address six types of orders:

  1. child custody / visitation,
  2. child support
  3. alimony,
  4. property division,
  5. debt division, and
  6. the order dissolving the marriage.

Temporary Orders in a Divorce Case

In a contested divorce case, it can take a very long time to get to the Decree of Divorce, even years in some instances. For that reason, temporary orders can be obtained much more quickly on urgent matters. However, the court will normally refuse to enter temporary orders on nonurgent matters; anything non-urgent will be reserved for trial.

So, which matters are urgent enough to get temporary orders on them?

CHILD CUSTODY / VISITATION:
Always urgent enough for temporary orders so the children will not be in a tug-of-war.
CHILD SUPPORT:
Always considered urgent enough for temporary orders, but temporary custody must also be determined.
ALIMONY:
Considered urgent enough for temporary orders if one party cannot meet basic needs without it.
PROPERTY AND DEBT DIVISION:
Generally not considered urgent, unless they affect the parties’ ability to meet their basic needs and keep separate from each other while the divorce is pending. For example, possession of the marital home is always urgent enough. Possession of work tools or vehicles necessary to get around are often considered urgent enough. Temporary orders prohibiting the parties from wasting marital assets are also usually appropriate.
DISSOLUTION OF MARRIAGE:
Dissolving the marriage is not normally considered urgent, but the court has discretion to grant the dissolution before the final Decree for good cause.

Stages of a Divorce Case

Every divorce case starts with a petition and ends with a final order. The following is the outline of a typical Utah divorce case from beginning to end:

INITIAL PLEADINGS:
One party (the petitioner) files the Petition. It must then be served on the other party (the respondent). If the respondent fails to file an Answer within 20 days, the petitioner can ask the court to grant the requested orders by default. Otherwise, the matter becomes contested.
DISCOVERY:
Once a petition is contested, parties have the right to engage in “discovery” to prepare their case for trial. Discovery is the process whereby the parties can use the force of law to get information from each other and third party witnesses. In contested custody cases, discovery often includes getting the parties to submit to custody evaluations and other professional evaluations, if either party requests it. Discovery can take a very long time, and is the reason many lawsuits stretch out over one or more years.
TEMPORARY ORDERS:
There are no court orders until somebody asks for them. Since it may take a year or two to get to trial (because of discovery), the court is willing to make temporary orders before the parties have all of their evidence together. A motion is filed, then proper notice is given, then a hearing is held, and finally a written order is signed by the judge.
ENFORCEMENT OR MODIFICATION OF TEMPORARY ORDERS:
After temporary orders but before final orders, there are sometimes proceedings to enforce or modify the temporary orders before trial. These proceedings are more rare, because the courts normally will not modify temporary orders without substantial new evidence, and will sometimes defer enforcing temporary orders until trial if it can be done without irreparable harm to the parties.
MEDIATION:
Mediation is a voluntary process where parties meet with a neutral mediator to help them come to an agreement. One session of mediation is required in divorce cases.
TRIAL OR SETTLEMENT:
Once discovery is finished, the parties can set a date for trial, where the parties will present all of their evidence to the judge and the judge will make the final decision. However, if the parties make an agreement to settle the dispute (this can happen any time during the lawsuit), the judge will normally approve the settlement and adopt it as the order.
FINAL ORDER:
After trial or settlement, a written order must be prepared for the judge to sign.
APPEAL:
If either party disagrees with the final order after trial, they may appeal. An appeal has a whole set of its own procedures, but the important part to know is that no new evidence can be presented on appeal; the appeals court can only review the record of the proceedings and decide whether the judge was in error.
ENFORCEMENT AND MODIFICATION PROCEEDINGS:
There are generally only two things you can ask a court to do with final orders – enforce them or modify them. Just like in all civil cases, as long as there are orders that can be enforced, the court retains jurisdiction to enforce them. However, unlike many other civil cases, in custody and support cases, a court retains jurisdiction to modify its orders based on changed circumstances. Each enforcement proceeding and each modification proceeding is essentially a separate lawsuit, although it is typically filed under the same case number as the original case.

CUSTODY FACTORS IN UTAH

Child custody is based on the “best interests of the child,” which is, according to Utah courts, a mixed question of law and fact. If the higher courts or the legislature gave no further guidance to judges, the term “best interests of the child” could very well be equivalent to “what the judge ate for breakfast.” In order to avoid this result, the courts and the legislature have created “factors” for judges to consider and address when determining the “best interests” of children.

PRIMARY CARETAKER FACTOR:
The Utah Supreme Court decided in Pusey v. Pusey in 1986 that in any custody decision, courts must identify the “primary caretaker.” Pusey officially discontinued “gender-based” presumptions (in that case, the presumption that the mother gets custody) and mandated that courts use “function-related” factors instead.
STATUTORY FACTORS:
The legislature has stated in Utah Code s 30-3-10 that courts are to consider the following factors in determining the best interests of the children:

  • the past conduct and demonstrated moral standards of each of the parties;
  • which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;
  • the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child
STATUTORY JOINT CUSTODY FACTORS:
In deciding whether to award joint custody, Utah Code s 30-3-10.2 states that the courts are to consider the following factors:

  • whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody.
  • the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest.
  • whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent.
  • whether both parents participated in raising the child before the divorce.
  • the geographical proximity of the homes of the parents.
  • the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody.
  • the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents.
  • the past and present ability of the parents to cooperate with each other and make decisions jointly.
  • any history of, or potential for, child abuse, spouse abuse, or kidnaping
  • any other factors the court finds relevant.
COURT RULE FACTORS:
Most recently, the Utah Supreme Court created the following list of standardized factors to be addressed by professional custody evaluators. The list is embodied in Rule 4-903, Utah Code of Judicial Administration:

  • the child’s preference;
  • the benefit of keeping siblings together;
  • the relative strength of the child’s bond with one or both of the prospective custodians;
  • the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted;
  • factors relating to the prospective custodians’ character or status or their capacity or willingness to function as parents.
  • moral character and emotional stability;
  • duration and depth of desire for custody;
  • ability to provide personal rather than surrogate care;
  • significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;
  • reasons for having relinquished custody in the past;
  • religious compatibility with the child;
  • kinship, including in extraordinary circumstances stepparent status;
  • financial condition; and
  • evidence of abuse of the subject child, another child, or spouse; and
  • any other factors deemed important by the evaluator, the parties, or the court.
CASE LAW FACTORS:
The following additional factors have been addressed in case law as appropriate for the courts’ consideration for custody:

  • Greater flexibility to provide personal care for the child
  • Parent with whom child has spent most time before custody determination
  • Integration into family/bonding with either parent
  • Stability of environment
  • Abuse and neglect by a parent
  • Substance abuse by a parent
  • Mental instability of a parent
  • Perjury and other false statements by a parent
  • Interference with visitation or willingness to allow visitation
  • Frequent changes of residence
  • Move out of state
  • Nonmarital sexual relationships
  • Homosexuality
  • Relationship with step-parent
  • Relationship with step-siblings (preference to keep siblings together)
  • Help from grandparents or other relatives
  • Child’s preference
FACTORS FOR DEVIATING FROM STANDARD PARENT-TIME:
Normally, the standard minimum parenttime is presumed to be in the best interests of the children. The following factors have been outlined by the Utah legislature in Utah Code s 30-3-34 for the court to consider in deciding whether to deviate from the standard parent-time schedule, up or down.

  • Parent-time would endanger the child’s physical health or significantly impair the child’s emotional development;
  • The distance between the residency of the child and the noncustodial parent.
  • A substantiated or unfounded allegation of child abuse has been made;
  • the lack of demonstrated parenting skills without safeguards to ensure the child’s wellbeing during parent-time;
  • the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;
  • the preference of the child if the court determines the child to be of sufficient maturity;
  • the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;
  • shared interests between the child and the noncustodial parent;
  • the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;
  • the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;
  • a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;
  • the minimal duration of and lack of significant bonding in the parents’ relationship prior to the conception of the child;
  • the parent-time schedule of siblings;
  • the lack of reasonable alternatives to the needs of a nursing child; and
  • any other criteria the court determines relevant to the best interests of the child.

HOW CUSTODY IS DIVIDED

Determining child custody used to be very simple. If you hired a lawyer in the early 1800s for a child custody dispute, the answer would have been easy: Children are property, and Dad decides what to do with them. If you hired a lawyer in the 1940s for the same thing, the answer would still be easy, but opposite: Mom gets the kids and Dad pays the bills. The answers are not as easy today, and as a result, lawyers have a lot more work to do in a custody case than they once did.

Custody before Court Orders

The first thing people want to know when they come to a lawyer is what their rights are before there are any court orders about child custody. The answer is simple, but not necessarily helpful: Before court orders are made, it is generally legal for either parent to take and keep the children whenever and wherever they want, even if the other parent disagrees. In other words, before court orders are made, the “law of the jungle” controls.

The law of the jungle works just fine as long as both parents agree on what is best for their children and act accordingly. But as soon as there is a dispute, one of them will inevitably run to the court house to ask the judge to divide up the rights. Beware, however: Your conduct before court orders may affect whether the judge believes you are likely to act in the children’s best interests. You may want a lawyer’s advice to make sure you do not do anything that is likely to impair your rights to custody or parent-time when a judge does get involved.

How Custody get Divided Up

“Custody” is the right to manage your child. As parents, you have the legal right to decide what your child eats for breakfast, what he wears, how he cuts his hair, where he sleeps, what religion he practices, how he is disciplined, whether and when he goes to the doctor, and the list goes on. When two parent do not get along, the court will divide up their rights according to “the best interests of the children.” The court’s order is essentially a list of rules and conditions stating when each parent gets the kids and, when necessary, how they will go about communicating and making parenting decisions.

If the parties do not agree, the court, at trial, award custody based on “the best interests of the children.” Based on the guidelines made by the Utah legislature, “the best interests of the children” typically means that one parent gets physical custody and the other parent gets a standard minimum parent-time schedule. There is also a set of advisory guidelines about parental communication and decision-making that are typically considered in the best interest of the children.

Which Parent gets Custody

So which parent gets custody and which parent gets a minimum parent-time schedule? Until 1986, the Utah courts used to hold to a presumption that the mother should get custody, unless there was good evidence showing that this would be bad for the child. In the 1986 landmark Utah case of Pusey v. Pusey, the Utah Supreme Court followed the courts of other states in disavowing “gender-based” factors and using only “function-related” factors.

PRIMARY CARETAKER FACTOR.
Ever since the Pusey decision, the custody decision no longer begins with the question “who is the mother,” but begins with the question “who is the primary caretaker.” Even though the court in Pusey said that the primary caretaker factor is “not exclusive,” it has clearly been the biggest factor in the vast majority of custody decisions. The term “primary caretaker” generally means the parent who has done the most staying home, watching, waking, dressing, cooking, cleaning, bathing, taking to school, etc. Since the tradition of fathers working and mothers staying home remains common (although it is becoming less so), it is true that mothers get custody most of the time, despite the abandonment of gender-based factors.
NURSING MOTHER FACTOR.
Although there is little in the statutes or case law addressing it, a type of maternal presumption still survives when it comes to deciding the custody of breast-fed infants, purely because it is best to have the child in the mother’s care for breast-feeding. Although the “nursing mother” factor is unavoidably gender-biased, since it is biologically impossible for fathers to breast-feed, it is still a “function-related” factor, and is something akin to the primary caretaker factor.
OTHER FACTORS.
There are numerous other factors a court can consider in determining custody cases. To quote the Utah court of appeals, “The importance of the myriad of factors used in determining a child’s best interests ranges from the possibly relevant to the critically important.” (Hudema v. Carpenter, a 1999 decision).
JOINT PHYSICAL CUSTODY.
Joint physical custody is a possible outcome in a Utah divorce case. The legislature has laid down factors that a court should consider before awarding joint custody. In general, joint custody is only possible when parties live close together and are able to get along. As a practical matter, joint custody almost never happens when either of the parties does not want it, and is almost always the result of a negotiated settlement agreement rather than litigation.

How much Parent Time?

When the court decides custody, the court also has to decide what parent-time the other parent gets. The legislature has stated ideal that the ideal parent-time order ensures “frequent, meaningful, and continuing access to each parent” and has “both parents actively involved in parenting the child.” Utah Code 30-3-32.

STANDARD SCHEDULE.
The legislature has made a standard minimum parent-time schedule that is presumed to be in the best interests of the children unless the parties agree otherwise. The standard parent-time schedule created by the legislature is essentially designed around the public school schedule. It gives the custodial parent the children during school, and gives the noncustodial parent about half of the weekends, holidays, and summer-time, as well as some weekday evening time.
DEVIATING FROM THE STANDARD SCHEDULE.
Although there is a presumption that the standard parent-time schedule is in the best interests of the children, that presumption can be rebutted. The court can deviate from the standard schedule if one parent presents enough evidence that the standard schedule is not in the best interests of the children. Similar to custody decisions, there are a number of parent-time factors that the legislature has set forth that judges must consider in determining whether to deviate (up or down) from the standard parent-time schedule.

STANDARD PARENT-TIME

The Utah legislature has enacted a standard minimum parent-time schedule in Utah Code s 30-3- 35. There is a presumption of law that this schedule is in the “best interests of the children” unless the parties agree on another schedule. The standard parent-time schedule is built around the school year and its effect is to keep the children with the custodial parent during school, but divide up weekends, holidays, and summer-time nearly equally, as well as awarding some midweek evening time. The schedule is as follows:

WEEKENDS:
The parents each get every other weekend.
MID-WEEK EVENINGS:
The non-custodial parent gets one mid-week evening for 3 hours.
HOLIDAYS:
The non-custodial parent gets the holidays on List #1 in odd-numbered years and on List #2 in even-numbered years, and the custodial parent gets the reverse:

LIST #1 (ODD YEARS)
  • Each child’s birthday (day before or after)
  • Martin Luther King Jr Day
  • Spring Break
  • July 4
  • Labor Day
  • Fall Break (UEA weekend)
  • Veteran’s Day
  • 1st half of Christmas Break
LIST #2 (EVEN YEARS)
  • Each child’s birthday (actual day)
  • President’s Day
  • Memorial Day
  • July 24
  • Columbus Day
  • Halloween
  • Thanksgiving
  • 2nd half of Christmas Break
SUMMER OR OFF-TRACK TIME:
Up to four weeks “extended time.” The non-custodial parent can demand that two of those weeks be uninterrupted (the custodial parent gets an identical uninterrupted period). For the remaining two weeks, the custodial parent gets parent time as if the roles were reversed.
TELEPHONE OR VIRTUAL TIME:
For “reasonable hours” and “reasonable duration.”

Exception: Children under 5

Where children are under 5 years old, the legislature has created a phased-in standard parenttime schedule in Utah Code s 30-3-35.5. The schedule is as follows

Age Weekends Midweek Eve Holidays Summer Phone
Birth-5mo 2 hrs 3x/wk 2 hrs each holiday
5-9mo 3 hrs 3x/wk 3 hrs each holiday
9-12mo 8 hrs 1x/wk 8 hrs each holiday
12-18mo Alternating 8 hrs / 18 hrs Standard 8 hrs each 2 1-wk (1 uninterrupted) 4 wks apart 2x/wk
18mo-3yr Standard Standard Standard 2 1-wk (1 uninterrupted) 4 wks apart 2x/wk
3-5yr Standard Standard Standard 2 2-wk (1 uninterrupted) 1 wk apart 2x/wk

In this schedule, the custodial parent gets more time in the early years, but there is also more interaction with the non-custodial parent each week.

Exception: Long Distance

Where the parties live in other states or 150 miles apart, the legislature has created a standard parent-time schedule in Utah Code s 30-3-37 that is designed to accommodate long distance. The schedule is as follows:

WEEKENDS:
Up to one weekend per month (subject to certain rules).
MID-WEEK EVENINGS:
None.
HOLIDAYS:
The non-custodial parent gets the holidays on List #1 in odd-numbered years and List #2 in even-numbered years, and the custodial parent gets the reverse:

LIST #1 (ODD YEARS)
  • Thanksgiving
  • Spring Break
LIST #2 (EVEN YEARS)
  • Winter Break
  • Fall Break (UEA)
SUMMER OR OFF-TRACK TIME:
The non-custodial parent gets half.

This schedule technically only applies for a “school-age child,” and the legislature is unclear what the recommendation is for children under school-age.

Exception: Gradual Reintroduction

The Utah legislature has stated in Utah Code s 30-3-36 that it is best for parent-time to be gradually reintroduced in some cases. Normally two conditions need to be present before a court will require this:

  1. when parent-time has not taken place for an “extended period of time” and
  2. the child “lacks an appropriate bond” with the non-custodial parent.

Restricted or Supervised Parent-Time

In appropriate cases, courts may place restrictions on parent-time and award less than the standard minimum parent-time. The most common type of restriction placed on parent-time is requiring some level of supervision. This is typically done in cases where parent-time would endanger the child’s physical health or significantly impair the child’s emotional development. Utah courts typically prefer to make any restrictions on parent-time temporary, only until the danger is passed, and then reintroduce standard parent-time (sometimes gradually, depending on the circumstances).

Awarding more than Standard Parent-Time

In appropriate cases, courts may award more than standard parent-time. Normally, the court will do this in a case where a parent historically had more time than standard and it would be detrimental to the children to take that parent-time away. For a school-age child, there are really only a few ways in which standard parent-time can realistically be increased without changing custody. The few common ways I have encountered as as follows:

  • Granting the non-custodial parent multiple mid-week evenings.
  • Granting the non-custodial parent more of the summer or off-track time.
  • Granting the non-custodial parent more than half of the weekends or holidays.
  • Granting a mid-week overnight.
  • Granting a Sunday overnight at the end of the non-custodial parent’s weekend.

In order to determine whether a judge might award more parent-time, parent-time factors must be considered.

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