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Justifiable Divorce in Utah
Long before the towel is thrown in on a marriage, the couple should seek marital counseling. There are professional counselors - for a fee - as well as those provided through churches, local government (usually health departments) or other organizations for little or no charge. It is always wise to deal with competence - i.e., formal training when considering counseling. If the couple have children then the parents, responsibility to save the marriage is even greater. However, there are some things which are simply inexcusable and are justifiable for divorce: (1) Addictions for which the addicted will not accept responsibility and treatment; (2) Adultery; (3) Abuse - physical or severe mental; and (4) failure to provide support.
Only one spouse needs to file for a divorce. Utah is a no-fault divorce state, meaning divorce can be granted without proving who is guilty. Although, if there is serious fault by one spouse that evidence can be used to affect the ultimate judgment, such as in alimony awards or property divisions. If there is no significant disputes about property, alimony or children then a couple can file for a "do-it-yourself" divorce. Simplified forms are available from "kiosks" located in some libraries and courthouses or on line at http://courtlink.utcourts.gov - then follow the links. However, you are cautioned that if there are children, notable assets including retirement accounts or real estate or issues providing conflict it is wise to have an attorney review the documents.
Under Utah law, the lesser income producer, generally the wife, is entitled to support (alimony) for the same number of years as the couple was married. The amount of alimony is generally calculated so as to result in both spouses having about the same disposable income.
Custody is frequently a difficult issue. There is an unwritten presumption that wives have the edge in obtaining residential custody. However, there are a large number of fathers with custody. The court looks to what is in the children’s best interests. Often a professional will be required to make a recommendation after home visits and psychiatric studies of the parents. The courts are usually willing to accommodate any reasonable arrangement to which the parties agree. In the event of disagreement, Utah has a schedule of "standard visitation" which the courts will enforce to grant minimal visitation to a spouse. However, the children should have more than minimum visitation - they are generally the big losers in the marriage breakup and the little solace they get comes from more frequent visits with estranged parents - so long as those visits are for the benefit of the children and not for the venting of a parent’s hostilities.
Marital property, defined as the property acquired by the couple during the marriage is divided equally. Property includes retirement accounts, equity in homes, businesses or investments and all of the furniture and other property accumulated. Marital property does not include property owned before the marriage or obtain as an inheritance or gift. (Although the appreciation in value of the marital residence, investment or business may become marital property.) The children’s personal property is usually left with the custodial parent, or separated for the use of the children in some fair manner. Likewise the marital debts are shared, generally in relation to the ability to pay.
Child support is an obligation of both parents. It is calculated from a schedule established by the Utah Supreme Court, based on the income of both parents, the number of children and other relevant factors. Each parent pays a percent of the total child support figure from the tables based on that parent,s income.
Any of these arrangements can be modified by agreement. However, the court will usually review all such arrangements to make sure that one person does not take unfair advantage of the other.
Is a lawyer necessary? No - especially if there are no children or significant property, or if the couple are reasonable and cooperate in settlement. However, most marriages do not end with reasonable people. It is a very emotional event. If there are disputes about custody, visitation, or property it is wise to use a lawyer. It is rarely wise for both to use the same lawyer. The lawyer may have a conflict of interest unless the parties are very cooperative.
Utah courts decide child custody by determining the best interests of the child. The court can ask the children whom they want to live with and can consider the children's wishes regarding custody or visitation, but the children's wishes do not control the court's decision regarding custody and visitation.
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