I often get people in my office that received a judgment for divorce in a state other than Utah, but now they live in Utah and want to enforce the decree. There are several determinations that need to be made before a Utah court will enforce a "foreign" divorce decree.
If there are no minor children involved in the divorce then it is generally a much easier process to determine if Utah has jurisdiction, or the ability to enforce your divorce decree. If your decree was entered in another state but you moved to Utah, you can file the foreign judgment in a Utah divorce court and notify the other party that the judgment has been filed with a Utah court. Your ex-spouse can object to the filing, but he or she would have to show good cause as to why the judgment should not be recognized and enforced by a Utah divorce court. Generally as long as one of the parties is a resident of Utah, the court will adopt and enforce the foreign judgment.
The title may be misleading because, well, there are no rules. However, Utah divorce courts like to see cooperation and good behavior when making rulings down the road so it is a good idea to act civil even before the court gets involved in a Utah divorce, and keep a few things in mind.
Utah Child Custody and Parent-Time
The general rule for child custody and visitation is whichever parent has the children has the power. Typically, no law enforcement officer is going to take the children away from mom to give them to dad, or vice-versa. There is some variation depending on the particular law enforcement officer at the scene, but most if not all will tell you its a civil matter and suggest you get an attorney. They have no authority to forcibly remove a child from a parent without a court order, even to give the child to the other parent.
When filing bankruptcy in Utah there is an automatic stay that goes into effect immediately upon filing. This stay prohibits creditors from attempting to collect debt, including garnishments, foreclosures, repossessions, or even phone calls & letters. Even though the automatic stay is immediate, creditors don't always get notice of the bankruptcy right away, the court mails notice out but it can take a week or more before creditors receive the notice from the court.
Lack of Notice is not an Excuse in Utah Bankruptcy
However, in Utah lack of notice is not an excuse, it is expected that creditors will do their due diligence before making collection efforts, and find out for themselves if a debtor has filed bankruptcy. Bankruptcies are public records, so it is very easy for a creditor to determine if a debtor has filed bankruptcy. Most of the time big lenders, like credit card companies, do this, but often times smaller creditors do not. But whether it is a small company or a big one, a violation of the automatic stay is illegal and there are penalties in place for when creditors violate the stay.
So your spouse is ignoring the terms in your Utah divorce decree. What can you do about it? Your best option is to try to work with your spouse and convince him/her to adhere to the terms of the Utah decree. But if that doesn't work you will have no choice but to inform the court of the violations. You do this by filing a pleading called an Order to Show Cause. Which basically serves as a court order requiring the violating party to explain his or her actions to the court.
Do you have a good excuse?
There is such thing as a good excuse. Perhaps your children have complained about your spouse, stating that he or her has been abusive in some way. In that scenario it would be natural for a parent to refuse to allow that spouse to take the kids, even if he/she is entitled to parent-time. The risk in withholding your children is the court ultimately might not agree with you, and you could be held in contempt for violating the Utah decree of divorce. On the other hand, if the court agrees that there was some reason for concern, it is unlikely that the court would hold your actions against you.
Since Utah is a no-fault state for Utah divorce purposes, there is not a lot you can do when your spouse demands a Utah divorce. You really don't need a reason to divorce in Utah, most people simply put "irreconcilable differences" in their complaint and that is sufficient. Even if a judge asks what the basis for the irreconcilable differences is, the testimony from one party that the marriage is not working out is usually enough to allow the Utah divorce proceedings to go forward.
Usually once one party files for a Utah divorce, reconciliation has already been attempted and at least one of the parties does not believe there is any point in continuing the marriage. However, I have represented plenty of parties that change their mind during the Utah divorce process, sometimes even when the marriage appears on its face to be very unhealthy. I have also seen couples re-marry after the Utah divorce has gone through. I recently represented a client that was divorcing her husband... for the third time.
When it comes to divorce in Utah, the state has a reputation of favoring women, especially mothers. This favoritism is not limited to Utah though, most states have historically ruled in favor of the woman, particularly mothers, in divorce proceedings.
Child Custody in Utah Divorce
The main area of law in Utah divorce where mother's often prevail is child custody. Historically the mother has been the stay-at-home parent, especially in Utah. More often than not, Utah divorce courts have granted sole physical custody to mom, while dad gets standard visitation. As a result of these lopsided rulings, organizations that represent fathers, and families, have petitioned the legislature to pass laws that allow fathers to have more parental rights after a Utah divorce.
During the Utah 2015 Legislative Session the legislature passed House Bill 25, which gives Utah courts the ability to increase parent-time for non-custodial parents. Utah standard visitation has historically been every other weekend and one evening a week. You can see our section on parent-time for all the specifics, but essentially under the old law the non-custodial parent would get the children for 110 overnights, or about 30% of the time. Under the new law the non-custodial parent would get the children for at least 145 days, or 40% of the time. Judge's can increase parent-time by giving the non-custodial parent an overnight visit on Wednesday and/or Sunday.
This new model is in line with what Utah Custody Evaluators have been recommending in situations where both parents are fit. In addition, the Journal of Epidemiology & Community Health did a study of various custody arrangements and determined that children that spent significant time with both parents were less stressed and less prone to delinquent behavior. See Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children?
When filing bankruptcy the first thing you have to determine is whether you want to file a chapter 7 bankruptcy or a chapter 13 bankruptcy. There are several factors that go into this decision. Such as, do you have equity in your home? Are you behind on your house payment? Do you have a lot of assets? How much money do you make?
Jared B. Pearson is an experienced attorney that has been litigating in Utah for over 9 years. Jared specializes in family law, bankruptcy, and criminal defense.
Call for a free consultation today:
9192 South 300 West,
Sandy, Utah 84070