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Fillmore Spencer Utah Attorneys

Divorce in Utah: Frequently Asked Questions

Can I get a divorce without going to court?

Yes and No. A divorce is a legal proceeding that must be ordered by the court. It requires a party to file a petition for divorce and pay a filing fee. While many divorces are settled between the parties without having to actually appear in court, filing the appropriate documents and opening a court case is necessary.

Can I get a divorce without hiring an attorney?

Yes. You can also perform surgery on yourself without a doctor, but it is not recommended. An experienced attorney can not only advocate on your behalf but can advise you as to your rights and responsibilities so that you can make the best decisions possible in your divorce. Many of our clients come to us long after their divorces are final to try and correct mistakes made by trying to do their divorces without the help of an attorney. It is almost always easier (and cheaper) to hire an attorney for your divorce and make sure you get it right the first time.

 What if my spouse and I agree on all the issues and just want to do an “uncontested” divorce?

In our experience, it is rare for the parties to fully agree on all the issues and to truly have an “uncontested” divorce. However, if you are one of those lucky few, we can help you to draft and file all the necessary paperwork with the court.

What is a custody evaluation and how much does it cost?

A custody evaluation is a court-ordered process whereby a licensed and trained child expert (i.e. therapist, psychologist) performs an in-depth review of the case, interviews the parents, the children (if appropriate) and other relevant witnesses, does home evaluations, administers appropriate psychological and personality testing, prepares a comprehensive analysis of the needs of the children and the relative strengths and weaknesses of each parent, and provides an expert recommendation to the court as to custody of the children. The evaluation usually takes between 8-12 weeks and typically costs between $4,000-$8,000.

What if my spouse is unemployed or underemployed?

Both child support and alimony calculations are based on each spouses’ ability to earn, even if he or she is currently unemployed or earning less than previously earned. The court can impute an appropriate income level for each party if necessary based on prior experience, education or training. Some parties engage a vocational assessment expert to provide an expert opinion as to the employability or earning potential of a spouse who has been out of the workforce for a long time or who is claiming to be disabled.

What if my spouse or I are self-employed or own a business?

Any business interests acquired during the marriage are marital property subject to division in the divorce. This may require the services of an accountant to provide a valuation of the business. Further, the court will conduct an in-depth review of business income and expenditures for purposes of determining the income of a self-employed spouse for child support and/or alimony awards.

What happens if I fail to disclose income or assets to my spouse?

This will always backfire on you. Both spouses are entitled to full disclosure of the financial position of the other, including new jobs, raises, bonuses, overtime, etc. Failure to disclose financial information can result in the court vacating your divorce decree and/or awarded an undisclosed asset in its entirety to the other party.

What happens at a divorce mediation?

Utah law requires divorcing couples to attend mediation to try and negotiate a settlement of their divorce prior to going to trial. Parties often engage a retired judge or experienced family law attorney to mediate for them. Although neutral, the mediator will weigh in on the case, the evidence, and each party’s position and attempt to get the parties to come to an agreement. Each party may be represented by legal counsel at the mediation.

Can my spouse and I have joint custody of our children?

Yes. The divorce court has the discretion to order that the parties have a more equal parent-time arrangement termed as “joint custody.” There are many factors the court considers, including to what extent the parents get along and can keep conflict away from their children. From a practical standpoint, joint physical custody only works if the parents live in relatively close geographical proximity to each other.

What if my ex-spouse is not following the court orders?

Failure to follow a court entered Decree of Divorce is punishable by contempt of court, and may result in fines, being required to pay the other party’s legal costs, and even jail time. Bringing such a contempt action usually requires filing a motion with the court along with an affidavit stating the relevant facts under oath and attending a hearing before the judge.

Who gets to claim the children on income taxes after divorce?

The Decree of Divorce must allocate the right to claim children on federal and state income taxes each year. Many parties agree to alternate years for claiming the children as long as they are current on their family support obligations. It is important to clearly designate which parent will claim each particular child each year to avoid filing double claims and being audited.

How long will I have to pay alimony?

That depends on many factors, and the divorce court has wide discretion in determining the duration of an alimony award. Barring exceptional circumstances such as long-term disability, the court cannot order alimony for a term longer than the length of the marriage. However, alimony is often agreed to or ordered for a much shorter term, and alimony usually automatically terminates if the recipient spouse remarries or cohabitates with a significant other.

What are the chances of getting my spouse to pay my attorney fees and court costs?

Not very high. While the divorce court has the authority to order one party to pay for the other’s legal costs, it rarely does so. It usually only happens in an initial divorce where there is a very large discrepancy between the financial means of the parties. Getting reimbursed for legal costs incurred to pursue an ex-spouse who is not following court orders is more likely.

Do I have to be careful about what I post on social media and the internet?

Absolutely. It is easy to forget that anything posted on social media sites or the internet is essentially permanent and can be retrieved. Anything you post may be considered an admission that can be used against you in court, including videos, photos, rants, and statements only intended for close personal friends or family members. Be especially careful about bad-mouthing your spouse online.

 Can I afford an attorney to represent me?

We know that legal services are not cheap. Our attorneys’ billing rates are very competitive for attorneys along the Wasatch front, and we do our best to provide efficient service on your case. However, just as with other services, you get what you pay for when hiring a divorce attorney. A divorce is a major life event on par with marriage and childbirth in significance. It is worth it to pay for quality legal representation to make sure you get it done right.

If you still have questions, contact us for a free consultation with one of our Family Law partners or associates.

Matthew R. Howell is a partner at Fillmore Spencer.  Matt has been practicing law for more than 20 years in Utah and Federal Courts.    Matt currently focuses his practice on Family Law– including Divorce, Alimony, and Spousal Support, Child custody and child support– Criminal Defense, Civil Disputes, and Qui tam (whistleblower) cases.

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