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QUESTIONS AND ANSWERS ABOUT DIVORCE LITIGATION

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

BY LORIE D. FOWLKE

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

WHAT IS THE PROCESS TO OBTAIN A DIVORCE?

  • A Divorce Petition is filed with the court and provided to the other side, either by mail, personally, or “served”, meaning a constable delivers the documents and files something with the court saying they were delivered.
  • If “served”, the other side must file an Answer to the Petition within 20 days.
  • One side may request that the court issue temporary orders regarding parenting, support, division of some property, who lives in the marital home and who maintains the debts while the divorce is pending.
  • Discovery occurs, where both sides gather information about the assets, debts, and income of the parties. This could include depositions or written questions and requests for documents, and subpoenas.
  • The attorneys may negotiate a settlement or the matter will be set for trial; the vast majority of cases do not go to trial.
  • At any time during the process the parties may engage in mediation, either with or without their attorneys.
  • The main issues in any divorce are to determine parenting, support, property and debts.

HOW IS A PARENT PLAN [CUSTODY] DETERMINED?

  • The court’s main focus is always the “best interests” of the child(ren).
  • The court must determine “legal” custody and “physical” custody (see newspaper article in your packet).
  • Legal custody refers to the legal rights the parents have to the children, like the right to consent to marriage or medical treatment, for example.
  • Physical custody refers to the physical residence where the children actually live, and can affect the amount of child support.
  • Joint legal custody means both parents have the legal rights to the children that are specified.
  • Joint physical custody means a schedule where the children reside in both parent’s homes for various periods of time.
  • Sole physical custody means the children reside with that parent and the other parent has “parent time” with the children a minimum of alternating weekends, one weekday evening for three hours, alternating holidays and four weeks in the summer. (See, statute 30-3-35 in your packet)
  • If you believe joint physical custody would be best for your children, you should submit a plan with your petition for divorce.

HOW IS SUPPORT DETERMINED?

  • Child support is based upon a table created by the legislature, which is based upon both parents’ incomes and the schedule of the children with each parent.
  • Child support goes until the children are 18 and have graduated from high school in their regular matriculated year.
  • Alimony usually cannot go for longer than the length of the marriage and is based upon the standard of living at the time of separation of the parties.
  • In determining alimony, the court will look at:
    1. The needs of the spouse who requests alimony;
    2. The ability of that spouse to provide for her/his needs; and,
    3. The ability of the other spouse to help the requesting spouse meet those needs.
  • When there is not enough money for both spouses to have the same standard of living as existed during the marriage, then the court will attempt to equalize the net income of the parties, after deductions for child support.
  • The division of property and debts may affect the alimony amount. How are property and debts divided?
  • All property and debts accumulated during the marriage are to be divided “equitably”, which generally means they should be divided equally.
  • Whoever takes property that has a debt associated with it generally takes the associated debt as well, though not always.
  • Inherited or pre-marital property is not generally part of marital property and should be awarded to the original owner, unless it was co-mingled during the marriage to the extent that it lost its separate nature.

WHAT IF THE DIVORCE IS HIS/HER FAULT? DOES THAT HELP ME IN THE DIVORCE?

  • Utah, as most states, has “no-fault” divorce, meaning “fault” does not matter.
  • A few years ago Utah passed a law, which states that the court “may” consider “fault” in awarding alimony. What this means is debatable; however, I believe the intent was to compensate the injured party with a greater or lesser amount of alimony, depending on who was at fault.
  • Practically speaking, judges do not want to hear about “fault” because there is usually enough fault to go around, and when you start “slinging mud”, everyone gets dirty. How long does the divorce take to complete? The law requires a 90-day waiting period from the date of the filing of the Petition. This period can be waived upon “good cause”, or when parents attend the mandatory divorce education class.
  • It usually takes three to six weeks to get into court for a hearing to obtain temporary orders.
  • A divorce takes until either the parties agree on the terms of the divorce, or until a trial is scheduled for a judge to decide. More complicated divorces, in which custody is disputed, or there is an investigation of the assets necessary, will take much longer than when the parties are able to agree on the terms quickly. I have completed divorces in two weeks up to four years. How much will it cost?
  • An attorney will usually quote a flat fee if the divorce is uncontested, meaning both parties have already agreed on the divorce terms, and the other side does not hire an attorney and require negotiation about the terms of the divorce.
  • Unless the divorce is uncontested, my retainer is based upon what I believe the divorce will cost to complete with a “best case scenario”. This could be anywhere from $1,000 to $10,000.
  • Additional charges will occur if the divorce takes longer and more issues are contested. Divorces in the $5,000 to $10,000 range are not unusual. Occasionally one will cost $20,000+ but that is less often.

CAN I MAKE THE OTHER SIDE PAY MY ATTORNEYS’ FEES?

  • The law provides that in order to make the other side pay your attorneys’ fees you must show the court two things:
    1. prevail on your claims; and,
    2. show you need the money and the other side is more able to pay.
  • Usually both sides pay their own attorneys’ fees unless you actually go to trial and the court finds the two items listed above.
  • Even if the court orders the other side to pay your attorneys’ fees, the law firm’s contract is with you, not the other side. You will need to pay your attorney, and the other side will pay you back, usually.

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