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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS FILE:

In order to file for a divorce in Utah, either the petitioner or respondent must be an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action. [Based on Utah Code 30-3-1]

LEGAL GROUNDS FOR DIVORCE: The following are grounds for divorce:

* impotency of the respondent at the time of marriage;

* adultery committed by the respondent subsequent to 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 of 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. [Based on Utah Code 30-3-1]

MEDIATION OR COUNSELING REQUIREMENTS: If the petitioner and the respondent have a child or children, a decree of divorce 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 own motion or on the motion of one of the parties, if it determines course attendance and completion are not necessary, appropriate, feasible, or in the best interest of the parties. [Based on Utah Code 30-3-4]

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 long duration dissolves on the threshold of a major 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 greatly 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 the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage. [Based on Utah Code 30-3-5]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Either spouse may be awarded alimony, and the court may consider the fault of the parties 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 any 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.

[Based on Utah Code 30-3-5]

SPOUSE'S NAME: Although there are no specific provisions for the restoration of a wife's maiden name upon divorce, there is a general provision which permits such a change upon petition to the court. Any natural person, desiring to change his name, may file a petition therefor 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 prior to the filing of the petition. [Based on Utah Code 42-1-1]

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. In determining any form of custody, the court shall consider the best interests of the child and, among other factors the court finds relevant, the following:

1. the past conduct and demonstrated moral standards of each of the parties;

2. 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;

3. the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child; and

The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child. In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court shall 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 kidnapping; and

* any other factors the court finds relevant. [Based on Utah Code 30-3-10]

CHILD SUPPORT: Each parent's child support obligation shall be established in proportion to their adjusted gross incomes, unless the low income table is applicable. The parents are obligated to pay their proportionate shares of the base combined child support obligation according to the Utah Child Support Guidelines. If physical custody of the child changes from that assumed in the original order, modification of the order is not necessary, even if only one parent is specifically ordered to pay in the order. Except in cases of joint physical custody and split custody and in cases where the obligor's adjusted gross income is $1,050 or less monthly, the base child support award shall be determined as follows:

(a) combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table; and

(b) calculate each parent's proportionate share of the base combined child support obligation by multiplying the combined child support obligation by each parent's percentage of combined adjusted gross income.

The court may include, in an order determining child support, an order assigning financial responsibility for all or a portion of child care expenses incurred on behalf of the dependent children, necessitated by the employment or training of the custodial parent. If the court determines that the circumstances are appropriate and that the dependent children would be adequately cared for, it may include an order allowing the non-custodial parent to provide child care for the dependent children, necessitated by the employment or training of the custodial parent. 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. [Based on Utah Code 30-3-5, 30-3-5.1, and 78-45-7.11]

PREMARITAL AGREEMENT: Parties to a premarital agreement may contract with respect to: (a) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; (b) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; (c) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; (d) the modification or elimination of spousal support; (e) the ownership rights in and disposition of the death benefit from a life insurance policy; (f) the choice of law governing the construction of the agreement, except that a court of competent jurisdiction may apply the law of the legal domicile of either party, if it is fair and equitable; and (g) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

The right of a child to support, health and medical provider expenses, medical insurance, and childcare coverage may not be affected by a premarital agreement

HOW TO ENFORCE CHILD SUPPORT IN THE STATE OF UTAH – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have chosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF UTAH:

http://www.le.state.ut.us/~code/TITLE30/30_03.htm