So you’re getting a divorce? You’re not alone ya know, divorce is pretty common these days. It’s always interesting to see the dynamics of a divorce. Some couples have been thinking about it or threatening divorce for so long that finally doing it is a breath of fresh air, and neither one of them is shocked. Others are seemingly happily married and then some event triggers a fast and furious separation. And still others find themselves unhappy one day, and they’re not sure how it happened or why. The scenario is generally the one in which the couple has the hardest time breaking dealing with it, especially the one that gets blind-sided with divorce talk or even paperwork. Here are a few suggestions derived from my infinite wisdom from practicing family law in Utah for ten years.
Your spouse will likely feel betrayed either way, but in my experience the betrayal is far worse if he/she is served with a summons and complaint for divorce without knowing its coming. Even if you’ve secretly moved out before serving the paperwork, it likely make the divorce process itself more personal and therefore ugly. It’s rare for couples to cooperate in a contested divorce, and even rarer if there is the additional aspect of betrayal. Divorce does NOT make irrational people rational, more likely it has the opposite effect. So if it’s possible to talk to your spouse about the divorce before filing, you’ll generally be better off. Having said that, I don’t know your spouse nor his/her general demeanor and agreeableness, so do what you think is best. Good luck!
Keep the lines of communication open, there is nothing wrong with talking to your spouse and trying to work through it together. After all, you did love him/her once, and maybe still do, there is no need to make him your arch nemesis just because you fell out of love, or grew unhappy, etc. The more you can talk, rationally, the more likely your divorce will be somewhat amicable.
Here are a few facts about divorce in Utah that can help you determine if you can get divorced in Utah and the factors that might determine the outcome of your Utah Divorce:
During this time of year I get a lot of calls regarding parent-time and what each parent is entitled to over Christmas vacation. Some custody agreements spell out holiday visitation, especially if it’s a joint custody arrangement. If you are unable to decipher what your custody order says, contact me and I’m happy to go through it with you at no charge. If it’s ambiguous or poorly worded we may need to contact your ex and see if we can come to an agreement as to new wording. If the two of you can’t agree on something then we may need to go to mediation or even court to get it resolved (side note, if you are in the process of figuring out custody make sure the custody provision is clear and well-worded, don’t count on figuring it out as you go or down the road).
Utah Code § 30-3-35
Many custody orders refer to Utah Code § 30-3-35 for holiday visitation. This is the code section that spells out the recommended minimum visitation for the non-custodial parent in sole custody cases, but many joint custody cases use this code section for purposes of determining holiday visitation because it saves you from having to recreate the wheel so to speak.
With the relatively recent ruling on the legality of gay marriages from the U.S. Supreme Court, I have met with a lot of clients looking to adopt their spouse’s child or children. Previously it was very difficult for a gay couple to adopt because they didn’t meet the rather stringent requirement of marriage (particularly in Utah). Now that gay marriage is allowed in all states, couples are able to marry and therefore can qualify for an adoption. However, they still have to meet the criteria.
Voluntary Relinquishment of Parental Rights
This is by far the easiest route to go when it comes to a step-parent adoption. If the biological father or mother is willing to sign a relinquishment of parental rights half the battle is over before we even begin. The nice thing about these voluntary relinquishments is they are “non-retractable”. In other words, once a parent signs a voluntary relinquishment they cannot change their mind later. The Courts do this in order to ensure that a child is not faced with the confusion and instability of a parent coming in and out of the child’s life. Imagine the scenario where a child is adopted and then his or her biological parent shows up and suddenly wants to be part of the child’s life again. Not only can this be difficult for the child to deal with, or even comprehend, but it can undermine the adoptive parent’s role as the father or mother of that child.
Everyone wants an aggressive attorney; I’ve heard plenty of horror stories from clients and potential clients about ex-attorneys that didn’t say a word in court, lawyers that got pushed around by opposing counsel. Obviously attorneys like this might not give you the best representation, but there is another side of the spectrum as well – overly aggressive attorneys. Attorneys that tell a client anything they want to hear to get them to sign on the dotted line. Attorneys that take a belligerent stance on any issue, no matter the facts. Attorneys that “fight for you tooth and nail” and refuse to concede any point, ever. These types of attorney can often be more detrimental to your case (and your pocketbook) than the oft feared passive attorney.
Is it Possible for an Attorney to be too Aggressive?
Overly aggressive attorneys are typically trying to serve themselves instead of their clients. The more belligerent they are, the more they refuse to settle issues outside of the courtroom, and the more money they’re going to cost you. MANY divorce issues are already pre-decided by statute or case law. Nevertheless I have seen attorneys fight those simple issues with such gusto that one would think it was an issue that had never been addressed before. They’ll file pleadings that need to be responded to, and schedule and attend hearings on the issue only to have the judge rule the way that statute or case law directs. Unfortunately, not only do these attorneys cost their clients unnecessary fees, they cost the opposing client extra fees as well since the opposition has no choice but to respond to the pleadings and attend the hearing.
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.
So what can you do?
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.
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