Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Utah have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
RESIDENCY REQUIREMENTS
To file for a divorce in Utah, either the petitioner or respondent must be an actual bona fide resident of this state and the county where the action is brought.
NO-FAULT SEPARATION REQUIREMENT – THREE YEARS
Utah requires the parties to live apart for three years as a minimum length of time. Spouses who do not wish to comply with the waiting period requirement can file for divorce based on fault. Utah, like most states, has statutory fault-based provisions that a court must follow in determining support, custody, and division of property.
STATUTORY GROUNDS FOR FAULT-DIVORCE
The court will consider the following factors in fault-based divorce:
- The impotence of the respondent at the time of marriage;
- Adultery committed by the respondent after marriage;
- Willful desertion of the petitioner by the respondent for more than one year;
- Willful neglect of the respondent to provide for the petitioner the common necessaries of life;
- Habitual drunkenness of the respondent;
- Conviction of the respondent for a felony;
- Cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
- Irreconcilable differences in the marriage;
- Incurable insanity, or When the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
MEDIATION-COUNSELING REQUIREMENTS
Suppose the petitioner and the respondent have children. In that case, a divorce decree may not be granted until both parties have attended the mandatory educational course and have presented a certificate of course completion to the court.
The court may waive this requirement on its motion or the motion of one of the parties if it determines course attendance and completion are not necessary, appropriate, feasible, or in the parties’ best interest.
PROPERTY DISTRIBUTION
Utah is an equitable distribution state, meaning that if the parties can’t agree, the property will be distributed in an equitable fashion, not necessarily equally. When a marriage of a long duration dissolves on the threshold of a significant change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony.
If one spouse’s earning capacity has been dramatically enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony. The court shall also include an order specifying which party is responsible for paying joint debts, obligations, or liabilities of the parties contracted or incurred during the marriage.
ALIMONY AND SUPPORT
Either spouse may be awarded alimony, and the court may consider the parties’ fault in determining alimony. The court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial. The court shall consider at least the following factors in determining alimony:
- The financial condition and needs of the recipient spouse;
- The recipient’s earning capacity or ability to produce income;
- The ability of the payor spouse to provide support;
- The length of the marriage;
- Whether the recipient spouse has custody of minor children requiring support;
- Whether the recipient spouse worked in a business owned or operated by the payor spouse; and
- Whether the recipient spouse directly contributed to an increase in the payor spouse’s skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage.
SPOUSE’S LEGAL NAME
Although there are no specific provisions for restoring a wife’s maiden name upon divorce, there is a general provision that permits such a change upon petition to the court. Any natural person desiring to change his name may file a petition in the district court of the county where he resides, setting forth: (1) The cause for which the change of name is sought. (2) The name proposed. (3) That he has been a bona fide resident of the county for the year immediately before the filing of the petition.
CHILD CUSTODY
The court shall, in every case, consider joint custody but may award any form of custody which is determined to be in the best interest of the child.
The court will consider the best interests of the child in determining custody, including assessing the following factors:
- 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;
- What extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child;
- 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 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 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 and make decisions jointly;
- Any history of, or potential for, child abuse, spouse abuse, or kidnapping.
CHILD SUPPORT
Utah uses the Income Shares Model to calculate child support. In determining child support, the court will use both parents’ combined adjusted gross incomes and the number of children for whom support will be ordered.
Suppose physical custody of the child changes from that assumed in the original order. In that case, modification of the order is unnecessary, even if only one parent is specifically ordered to pay in the order.
The right of a child to support, health and medical provider expenses, medical insurance, and childcare are paramount to the court’s determinations.
Whenever a court enters an order for child support, it shall include in the order a provision for withholding income as a means of collecting child support
SAME-SEX DIVORCE
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges. (For more information, visit ProCon.org).
