Divorce and Custody are emotional minefields which sometimes makes it difficult to navigate the process.
The following is a list of commonly asked questions and answers regarding divorce and custody to get you started in the right direction.
Question: How does the judge decide who gets custody?
Answer: The judge will review the petition and listen to arguments made by each interested person (party). The judge will go through factors outlined by the Utah Code. As you navigate this process, it is important to know how to prove those factors and know whether to ask for 50/50 or primary custody.
Question: I am a Mom, do I automatically get custody?
Answer: Utah law does a really good job of considering what is in the children’s best interests. The judge considers maintaining the arrangement of the primary caretaker. However, just because you are the Mom does not mean that you will automatically get custody.
Question: I am a Dad, what are my rights?
Answer: In Utah, Dads have the same rights as the Moms. However, you need to be an active participant in your children’s lives. The Courts want to see which parent is taking care of the children, regardless of gender. The Courts care most about the best interests of the children.
Question: How is child support figured?
Answer: Child support is based on a formula, considering the income of each party and the number of overnights the child(ren) spends with each parent. You can find a child support calculator on the website for The Office of Recovery Services (ORS). You can find the website to determine child support here: https://orscsc.dhs.utah.gov/orscscapp-hs/orscscweb/actions/Csc0002.
Question: How do we split holidays?
Answer: In an effort to equalize the amount of holidays the child(ren) spends with each parent, the Utah legislature outlines how to split the holidays. This outline can be found at https://le.utah.gov/xcode/Title30/Chapter3/30-3-S35.html?v=C30-3-S35_2020051220200512. However, this schedule is only followed if you can’t reach an agreement. If you can agree to something different because of your specific family traditions then do that.
Question: What if one of us moves or lives out of state?
Answer: Utah Code outlines what to do in the situation where one parent lives out of state. The code basically states that the party living out of state gets 1/2 the summer and two major holidays every year. The four major holidays that are divided are: Spring Break, Fall Break, Thanksgiving and Christmas.
Question: What is a custody evaluation?
Answer: A custody evaluation is a professional that is appointed by the Court to talk to you and your children about what is happening. This person will conduct assessments and gather information. This person will then make recommendations. A custody evaluation can cost anywhere from $4,000-$20,000.
Question: How long does it take to get divorced?
Answer: That depends on you. In a perfectly amicable divorce, the divorce can be finalized in about 30 days after the petition is served on the other party. This is the ideal, but unusual situation. I have had matters resolved in this manner, and some that have been pending for 2+ years. Both of these scenarios are unusual. Most cases can be resolved in 6-9 months depending on willingness to negotiate and compromise in mediation and before going to trial.
Question: Will my children be okay?
Answer: Your children will learn to adjust to the new circumstances. However, you can help them adjust by coparenting well with the other party. There are many books that can help you navigate the emotional minefield of divorce with your children. This can be a really hard process for your children, let alone for you. Your children need you to help them navigate this process.
Question: How do the Utah courts determine alimony?
Answer: Alimony is not automatically awarded in every case. Alimony is determined on three main factors: 1. What are the financial needs of the parties? 2. Can the parties meet those needs? 3. What is the deficit between financial needs and income for each of the parties?
Question: How is retirement divided?
Answer: Retirement is divided by a formula where you each get 50% of what was earned during the marriage. This division is often referred to as the “Woodward” formula.
Question: What if the other party is not following the court orders?
Answer: When one party is not following court orders, you can file what’s called a Motion to Enforce. The court determines if the other party is not in compliance. If the court finds that they are not in compliance they could award consequences in the form of fines, jail time, attorneys fees, community service or classes to learn to be a better co-parent. The judge has wide discretion in how to administer consequences.
Question: My circumstances have changed; how do I modify the Decree?
Answer: To modify a decree, you need to first file what is called a Petition to Modify. You must have substantial changes such as one of the parties making more or less money, or one of the parties moving further away. This also becomes an option when the custody arrangement is not working.
Question: Who pays the attorney’s fees?
Answer: Usually each party pays their own attorney’s fees. However, you may make a request for attorney’s fees and the judge will make the final decision as to who is responsible for what fees.
JESSICA READ LAW, PLLC 