So your divorce has been finalized and your spouse has primary custody of your child. Things are fine at first but then you start noticing changes in your child. When he comes over for visits he is not the sweet boy you used to know, he acts out, talks back, and gets angry easily. You soon discover that your spouse is making no attempt to discipline your son or keep him in line. Your son gets away with nearly everything, and doesn’t even have a bed time nor is he expected to do his homework. His grades are suffering and he’s starting to get in trouble at school. To make matters even worse, your ex often has friends over and they drink and smoke in front of your son. You know this is not a good environment or situation for your child but your spouse is the custodial parent and is legally entitled to custody.
The good news is there are procedures in place for this type of scenario; the bad news is they can take some time to reverse the standing court order. The first step is filing a Motion to Modify the divorce decree or the custody order. This document is served upon your spouse just like a petition for divorce or custody. Your spouse has 21 days to respond to the motion, at which point you’ll start going down the litigation road. Unfortunately custody/visitation is not likely to change until you and your spouse come to some kind of agreement, or the case goes to trial. If the case ends up going to trial then it could take months if not a year or more to get your child out of that situation. There are two ways to speed up the process, but neither of them is easy.
Occasionally I have a client that has a child or children, is already separated from their significant other, and now they want to move out of state. There is no court order in place as to custody or visitation, and they wonder if they can just leave. The short answer is “yes”, it is your constitutional and God-given right to go wherever you want. Generally a court cannot order anyone to remain in a particular place or state (with some exceptions, such as a defendant in a criminal case that has been ordered to remain in the state/county).
However, simply leaving the state can cause other issues and headaches down the road. Let’s say your spouse has regular visitation with your child, and suddenly you remove the child from the state, making it virtually impossible for your spouse to exercise his or her parent-time. In that scenario a court may order that visitation continue as it was, or order the statutory minimum visitation. Now you’re suddenly obligated by court order to allow your spouse to see the child every other weekend/one night a week, if not more. So even though the court cannot order you to return to the state, if you ignore the visitation/parent-time order you will be violating the court order and could face severe ramifications, such as contempt of court. Plus, you would need to hire local Utah counsel and you’d probably need to come back to the state for hearings, etc. So leaving the state before getting a court order can be a gamble.
Couples are generally not envisioning a divorce when adopting a child, and adoptive parents are no more likely than others to file for divorce. In fact, they may be less likely simply due to the adoption process. Generally prospective adoptive parents are put through a lot of scrutiny, and adoption agencies perform thorough background checks and investigation before allowing a couple to adopt. If it is determined that the prospective parents are suffering from marital problems, the adoption is typically denied.
Adopted Children in Divorce
A divorce can be extra detrimental on an adopted child, particularly if the child came from the foster system or has suffered the loss of a parent and is old enough to recall the tragedy. The already difficult divorce process can be even more trying on the parties if there is an adopted child due to the potential guilt the parties may feel about putting a child through the trauma of "losing" a parent for the second time.
A divorce can have an impact on both parties financially, and usually does. In addition to the potential loss of your spouse's income, you can also lose retirement benefits and income due to alimony, child support, insurance costs, etc. There are a few steps you can take to at least prepare yourself for these financial expenses and therefore stay ahead of potential financial issues.
Upon divorce it is common for both parties' budget to increase due to the fact that the proverbial financial blanket now has to cover "two beds" rather than one. After the divorce there is usually two mortgages/rent, two insurance policies, and household expenses that are no longer shared. As a result, many divorcees chose to forego contributing to their retirement plan, or even dip into their retirement savings. This is almost always a mistake. It is important that you continue planning for your future, and instead of removing retirement funds, reassess your budget and make adjustments that won't have such long-term ramifications.
The ramifications of the U.S. Supreme Court’s ruling on gay marriage extend far beyond the now legal marriage ceremony. Gay couples now have the same rights as heterosexual couples in a traditional marriage. Gay couples can now receive tax benefits, insurance benefits, and sexless marriages that the rest of us have long taken for granted.
Gay couples that are considering marriage would be well served by investigating the ramifications that accompany marriage. Besides the many pros, there are potential cons as well. If the couple separates it is no longer possible to simply divide property based on who purchased it. Instead, the couple will be subject to the same divorce laws and division of property that straight marriages have dealt with for hundreds of years.
This time of year can be difficult for divorcees, especially if it is your first holiday since the divorce went through. The first time spending a holiday without your kids, or missing out on a family tradition, can be hard. However, there are some things you can do to help you make the adjustment a little easier, and help ensure that things run a little smoother during the holidays.
Clear Language in your Decree of Divorce
If you want to make the holidays even harder, leave room in your decree of divorce for interpretation and "scheduling flexibility". If your decree is not clear as to who gets the kids and when during the holidays, you are just asking for trouble. During the divorce process it may be easier to just agree to cross certain bridges when you come to them, but that is in general a bad idea, and it especially so for visitation.
After deciding to get a divorce one of the major issues couples often run into is determining how assets should be divided. There are a number of factors that go into determining each party's interest in marital assets. "Equitable Distribution" is the term the courts use when dividing property. The term speaks for itself, but suffice it to say that the goal of the court is to make sure that the division of assets is fair, but not necessarily equal. The first step in determining how or if an asset should be divided is determining whether an assets is marital property, separate property, or a combination of both.
Separate Property vs. Marital Property
Marital property is generally property that both parties are entitled to, while separate property is property that belongs to one spouse or the other exclusively.
Separate Property: The most common type of separate property is property that was acquired or accumulated before the marriage. So if you have a 1966 Plymouth Fury that was paid for before the nuptials, then that beast will remain exclusively yours after the divorce. Separate property is also defined as inheritances, income from separate property, gifts to only one spouse, and personal injury compensation.
The valuation of a business or professional practice is almost always a hotly contested issue in a Utah divorce that involves such a business. It is further complicated if the business was formed before the parties were married because the parties or court must determine if the business is separate property, marital property, or a combination of both. Once a court makes this determination the court will divide the property by “equitable distribution”, a statutory provision that explains the procedures for dividing marital property.
Separate Property vs. Marital Property
Separate Property is generally property that was acquired or accumulated before the marriage while marital property is property acquired or accumulated during the marriage. There are other distinctions that are usually not applicable to the valuation and division of a business, but you can learn more about the different property designations at my blog “Dividing Assets in a Utah Divorce.”
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.
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Sandy, Utah 84070