Legal Separation vs. Divorce

“The difference between a divorce and a legal separation is that a legal separation gives a husband time to hide his money.” ~Johnny Carson

A lot of clients ask us if they should get a divorce or a legal separation.  These are two different processes and there are pros and cons for each process.  A divorce completely dissolves the legal marriage of a couple.  It is permanent.  A divorce will settle issues of property, debt, child custody, child support and parent time.    A divorce can take a long time or a minimum of 30 days.

A legal separation (which is called separate maintenance in Utah) does not end your marriage.  Couples often seek a legal separation when they intend to live apart but wish to remain legally married.   Some couples choose a legal separation for religious or medical insurance reasons.  In a legal separation you ask the court to make an order addressing the issues of debt, property division, property division, custody, child support and parent time.

The filing fee is the same for either a legal separation or divorce.  A legal separation is not a stepping stone to divorce - it is a different path.  You cannot convert a legal separation into a divorce.  If you first become legally separated and later want a divorce you have to file new documents with the court for the divorce.

If you want orders from a judge telling the parties what is going to happen with custody, parent time, support, property, debt, etc., during the time between when you file your divorce and when you get your final divorce decree, you need to ask the court for temporary orders.

If you have any questions about legal separation or divorce, call us.

Utah Divorce Classes

If you have children your divorce cannot become final until you take two classes.  One is the Divorce Orientation class.  This class is an hour long and costs $30.  However, you can cut this cost in half, to only $15, by taking the class within 30 days of filing the petition (if you are the petitioner) or within 30 days of being served (if you are the respondent).  The second class is the Utah Divorce Education class, which is two hours long. These classes are usually offered back to back.  This class is $35.  For both classes, you have to pay by cash.  You must be on time.  They will not let you in late.  Do not bring your children, they are not allowed.

These classes are actually pretty interesting.  The Divorce Orientation class goes over statistics about divorce and some things to consider during the process.  The Divorce Education class talks about how children handle the divorce process and gives some tips to help them.  It also gives some tips to help you as you navigate the new waters of post-divorce co-parenting.  If you attend with an open mind, you will likely learn some tips to help you as you transition from married to divorced.

If you need help with your divorce, give us a call.

Changing Your Name After Divorce

Some women choose to return to a previous name after a divorce.  If your Divorce Decree provides for the name change it significantly simplifies the process.  This is why we encourage women to include the language for a name change in their Divorce Decree – even if they say they do not want to change their name at the time of the divorce.  You are not required, nor can you be forced, to change your name after a divorce.

If you want to change your name, you should start by getting a new Social Security card and driver’s license.

Here is a link that outlines the process for getting a new Social Security card:

https://faq.ssa.gov/en-us/Topic/article/KA-01981

Here is a link that outlines the process for getting a new Driver’s License:

https://dld.utah.gov/dupdl/

Once you have a new Social Security card and/or driver’s license you can work on changing your name everywhere else.

Why Can’t I Find Easter on the Utah Parent Time Schedule?

 Easter is coming and if you are trying to find out who gets the kids for the Easter holiday you will need to keep looking.  The statute doesn’t discuss the Easter holiday at all.   The Easter holiday is treated just like any other weekend.   In some school districts, Easter falls during Spring Break. Utah statue says the noncustodial parent gets spring break in odd years and the custodial parent gets it in even years. If Easter isn’t during Spring Break, then the parent who has the children that weekend for the normal rotation would have the children.

Of course, you and your co-parent are able to decide on a different schedule or arrangement, if you prefer.   It is smart to get any agreement in writing to protect yourself and make sure the arrangements are clear.

Happy Easter!

Order to Show Cause

What do you do when your ex-spouse violates your divorce decree? If you want to have a judge enforce your divorce decree you can file an Order to Show Cause re Contempt. You will need to file an Order to Show Cause, A Motion for an Order to Show Cause and an Affidavit in Support of an Order to Show Cause. An Order to Show Cause requires personal service. This means that you have to have someone else serve the opposing party. Usually people use constables, law enforcement officers or a private service company.

In your Motion for an Order to Show Cause it is important to list all the ways that the other party has violated your divorce decree and what you want to happen. Usually, you ask the other party to stop doing what is wrong or start doing what they are supposed to. An Order to Show Cause requires a hearing. You will get the hearing date when you file your papers. Depending on how busy the courts are you might have to wait for a month or two before you can have the hearing.

How to Communicate with the Other Party in a Divorce

When you are going through a divorce, and after it is over, there may be hard feelings.  It is important to maintain civil communications at all times for several reasons.

1)      If you have children you should never involve them in the divorce process.  Children should never hear you or their other parent demean, belittle or criticize the other parent.  Commissioners and Judges are very adamant that all communication about and to the other party in front of the children be completely respectful.

2)      During the divorce process, if you have an attorney, use your attorney to communicate with the other party about particularly difficult topics.

3)      When communicating by text, email or phone, it is important to keep records of what is said or written as it may be important to your case.  If possible, have a written record so that an accurate record of what was said and what was agreed to.  There are tools for printing text messages.  It is a good idea to keep a communication log.

4)      If you find yourself exchanging unpleasant e-mails or text message with the other party, you might want to have someone you trust review your e-mails and texts before you send them.  Before you send something, it might be valuable to imagine what your response would be if you received the message you are sending.

My child's parent and I have split . . . what do I do?

A paternity action is similar to a divorce when the parents of a child split up but they were never legally married.  A paternity order is needed to address custody, parent time, child support, and other issues.  A paternity order may seem unimportant when the parties are getting along, however, if the relationship breaks down it will become very important, very quickly.    Without an Order, the parties have equal access to the children. Either party can keep the children from the other party and there is very little to be done without an order signed by a judge.  

A paternity action is started by filing a Petition. The opposing party then files an Answer. The parties are typically required to attend mediation.  Mediation is a great place for the parties to try and solve their issues on their own. 

When the parties are getting along they may be able to craft an agreement which can be turned into a court order than explains how they want their co-parenting relationship to be designed.  An order crafted by the parties is almost always preferable to an order handed down by the judge because the parties will know the intricacies of their situation, their children and their schedule.   A paternity order should address things like child custody (both legal and physical), parent time, holidays, child support and tax deductions. 

Parent Coordinators

Utah law allows a judge to appoint a parent coordinator to help parents work together at co-parenting their children.  Parent coordinators make recommendations to the parents regarding a variety of common co-parenting issues such as communicating with each other, resolving conflicts, coordinating schedules, selecting schools and day care, and determining participation in sports and other activities.  This is just a partial list.  For a more comprehensive list of the issues parent coordinators can help with you can review the actual rule at http://www.utcourts.gov/resources/rules/ucja/ch04/4-509.htm

Parents do have to pay for this service, but for parents who are spending a lot of time (and money) in court trying to resolve co-parenting issues a parent coordinator is a less expensive and more efficient alternative. 

Pets and Divorce

Dividing up pets can be an emotional part of a divorce.  Utah does not have any specific laws on this issue, but there are some guiding principles. 

• Courts do not look at pets as children.  Most courts have made it very clear that unless there is abuse they are not going to determine possession by the best interest of the pet.

• Courts have held that a pet can be considered a special piece of property – comparable to an heirloom  – and therefore specific performance is allowed.  This means courts can order possession of a pet to one party.  Courts are not limited to awarding the monetary value of the pet.  Often courts will require the party who was awarded possession of the pet to compensate the other party for the monetary value of the pet. 

• Courts usually award possession to the party who takes care of the pet.  A good way to prove who takes care of the dog is to make a video of a day in the life of the dog – showing who feeds, walks, cleans up after, etc., the dog.

Legal and Physical Custody

There are two types of child custody -- legal and physical.  Legal custody is the right to make legal decisions about and on behalf of your children.  For example, a parent with legal custody can decide where the children will go to school or which doctor they will see.  Physical custody is the right to have your children live primarily with you.

Divorced parents can have sole or joint legal custody of their children.  Sole legal custody means that one parent has all the rights to make decisions about and on behalf of the child.  Joint legal custody means the parents must work together to make decisions about the child. If parents have joint legal custody they are required to have a parenting plan.  A good parenting plan will explain the process parents should use to make decisions together. 

Divorced parents can also have sole or joint physical custody of their children.  In Utah, whether a physical custody arrangement is a sole or joint one is determined by how many overnights the child spends with each parent. When a child spends more than 110 nights with the noncustodial parent, the parents are considered to have joint physical custody.

Divorced parents must decide, or have the court decide, who will have both physical and legal custody of their children.  Parents can choose to have joint or sole custody legal and physical of their children.  It is not uncommon for the parents to have joint legal but with one of the parents having sole physical custody.