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.
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.”
Every now and then I meet with potential clients that just want to know one thing. If they hire me, will they get everything they want out of their divorce? The answer is usually no. There are exceptions of course. If all you want is the beanie baby collection and your clothes then there is probably a better than decent chance that you will get "everything you want" (that actually happened once). However, if you are involved in a contested divorce and there are children or significant assets involved, then the chances of you getting everything you want are very slim, it just doesn't happen. And not because your attorney isn't good, although that can certainly result in you getting even less, but because the courts try to make things fair as possible. So unless you entered the divorce with completely fair expectations that transcend all genders and personalities, AND the court completely agrees with you, chances are you won't get what you want because the court's definition of fair is likely different than yours.
Even if you settle your case outside of court, either on your own, through your attorneys, or in mediation, chances are there is going to be a lot of compromise. So unless your spouse is incredibly accommodating, again, you probably aren't going to get everything you want.
Your spouse hasn't paid child support in 2 months, and yet he/she still regularly exercises parent-time. Why should your spouse still get the benefits of visitation without offering any financial support. Next week you intend to give him/her an ultimatum, pay your child support or no more parenting time! Don't do it. Child support and visitation are not related, at least in the sense that a party does not lose his or her parent time due to failure to pay child support.
Enforcing Child Support
If your spouse is not paying child support you have a couple of options to enforce the child support order. The Office of Recovery Services provides child support collection services. They can implement collection services in order to force a party to pay child support. Typically they garnish wages, but that can be difficult to do if a parent is not working or is getting paid under the table. So if your employed spouse is not paying child support then ORS can be a good way to go. But if your spouse is not working or paying child support then ORS can't do much.
Often times the cost of a divorce is out of your hands, unless you're willing to just give your spouse whatever he/she wants, which usually isn't the case. But the bottom line is the cost of a divorce often depends on how ugly it gets, and since it takes two people to cooperate or settle, it's not always up to you. But there are a few things that you can do in order to keep costs down. Being able to recognize and avoid behavior that might add to your expenses is key in driving costs down. Here are a few suggestions of things you can do to lower costs on your divorce.
Have Clear objectives
It is important that you set clear objectives when planning or initiating your divorce. If you don't have objectives in mind then there is a very good chance you are going spend money "spinning your wheels." If your objectives are unclear then you might spend money fighting over an issue that you ultimately realize you don't care that much about. Having a clear & concise idea of what you are wanting to accomplish could end up saving you a lot of money.
Studies have shown that the more involved BOTH parents are in a child's life, the better off that child is. I've already written several blogs on the importance of being involved in your child's life, especially after a divorce. Utah courts are ordering 50/50 parent-time (or close to it) more and more often. If you can do it, 50/50 is the way to go. It's obviously fair, its better for the child, and its just a good idea. However, there are certain things you want to keep in mind if you are seeking 50/50 custody.
A 50/50 parenting plan has to be feasible. In other words, the parties have to live close enough together to make it possible, and schedules have to be such that both parties can have the child half of the time. Cooperation is key. A 50/50 parenting plan is going to mean that there is frequent and effective communication between the parties. School events, social events, doctors appointments, these are all things that need to be talked about between the parents.
Divorce/separation clients often ask me if the court considers moving out of their home abandonment. The short answer is no. In almost every divorce case someone moves out. Obviously it would be very difficult to live together when you and your spouse are going through a divorce. So the court does expect that someone will move out, and it generally won't hold that against you. HOWEVER, often times if there is a dispute as to who gets to stay in the house for the pendency of the action, or even permanently, the court may lean towards the status quo, ie, whoever is in the house should stay there because it's already been done. So if you are looking to stay in the house through the divorce process and after, you might not want to voluntarily move out, and instead wait for the court to determine who should go and who should stay. So while it's not considered abandonment, there are drawbacks.
In order for a court to find "abandonment" a party must literally abandon his/her family. Typically months if not years have to pass with no contact or support. A court must find that the offending party has no interest or ability to be involved in his wife and/or kids lives. In this scenario a court can terminate parental rights and obligations or even terminate parental rights but the abandoning party would still be subject to domestic support, such as child support or alimony.
Protective Orders are one aspect of family law that does not follow typical family procedures, and unfortunately can be abused relatively easily. Most areas of family law have rules in place that ensure that one party cannot manipulate and abuse the system. For good reason courts are generally hesitant to make rulings or issue orders without both parties getting their two cents in.
By nature protective orders are one sided, at least to begin with. In order to get a temporary protective order all a party has to do is convince a judge that he or she is in harms way. The party seeking protection (Petitioner) does not need to involve the “offending” party (Respondent) at this initial stage. As long as the Petitioner is convincing, a judge will almost always sign a temporary protective order, which can include language prohibiting the Respondent from being near the Petitioner or even places where the Petitioner might be, such as his/her work, school, or home.
What does a protective order do?
Often times a temporary protective order will prohibit the Respondent from even being near his/her children. Such language is common and the order is typically issued without the Respondent having an opportunity to tell his/her side of the story. This is why it is easy to abuse protective orders. Conceivably a Petitioner could lie through his/her teeth and unjustly get the court to prohibit the Respondent from even seeing his/her kids.
You've talked to friends, you've gone to counseling, you've tried to make it work. But it's not working. Is this the time to pull the plug? Obviously only you can answer that question, but preparation can be the key to a "successful" divorce.
My definition of a successful divorce is one in which the parties are still somewhat civil with each other when its all said and done, and the children, if there are any, have a strong relationship with both parents. As explained in a previous blog, studies have shown that kids are MUCH better off if both parents are heavily involved in their lives. So what can you do to ensure a successful divorce? Well, as usual, there are no guarantees, but here are a few things I've seen that will certainly improve your chances.
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