How do I get to see my children during the divorce?

How do I get to see my children during the divorce?

This is a common question when a divorce petition is filed.  Both parents have equal rights to their children unless there is a court order in place that says otherwise.  If one parent refuses to let the other parent see the children, the solution is to file for temporary orders that will remain in place until modified or the divorce is final.

Temporary orders will determine custody, child support, parent-time, and any other issues that need to be resolved on a temporary basis to make things work until the divorce is final.  While Utah law states that temporary orders have no bearing on the final determination, you will want custody or as much parent-time as possible.  This will also reduce your child support during the divorce.  

Once the motion for temporary orders is filed, a hearing will be set before a commissioner.  At the hearing each side states their case and the commissioner makes a ruling.  More often than not, the commissioner will rely on what has been the norm, for the children.  This is important because the children should be disturbed as little as possible by the mechanics of their parent’s divorce.  

Once temporary orders are in place, the parties should abide by them.  If one party does not, the other party can file a motion to hold the other party in contempt for not following the court’s orders.  

If you and your soon to be ex can agree on a parent-time schedule, you can enter into a stipulation and present it to the court for approval.  The key to make sure you get parent-time is to have a court order that can be enforced.  Any agreement in writing between you and your soon to be ex is not enforceable.  

For more information visit www.attorneydrew.com

Whose House is it?

Living arrangements and possession of the marital home are always involved in a divorce action and are critical in terms of stability and strategy.  As a general rule, absent abuse or fear of abuse or your safety, you should not leave the marital home.  Once you do, it is tough to get back in.  

If the house is titled in both of your names, you each have the right to possess the home.  This means that a police officer will not force either of you to leave the residence unless there is evidence of abuse.  If the house is only in one of your names, the police may still not do anything and claim that it is a domestic matter that should be resolved by the courts.  It does not matter who is on the loan.  It is all about the title to the property.  

The way to resolve any issues with possession is to obtain temporary orders from a court.  This is done by filing a motion for temporary orders and attending a hearing.  At the hearing, the judge/commissioner will make an initial determination of who can stay in the house and who is responsible for the payment on the house during the divorce.  In theory, temporary orders have no effect on who ultimately gets possession of the house.

In deciding temporary possession, the judge/commissioner will review the history of ownership and ability to make payments.  Quite frankly, the key factor is whether there are children involved and who has temporary custody of the children.  The age of the children will also be factored in.  No one wants to make the children move when they are in school and it is in the middle of the school year.  

When the divorce is finalized, the marital home issue will be resolved.  The marital home can be sold or awarded to either party with the other party having to buy out any equity in the home.  I am not a big fan of agreements to allow one party to stay in the house and then have it sold later.  These arrangements tend to lead to litigation as the party in possession may not want to move. 

Finally, when in doubt contact me to discuss your situation.

Time to Modify?

Holidays seem to be one of the worst times for parent-time exchanges in the State of Utah.  It does not help that the Utah Code simply states that the Christmas break is divided in half based on the number of days.  With the exchange taking place either at 1:00 p.m. or 7:00 p.m. depending on whether the number of days for break are an even or odd number.  Layers often have different interpretations of when the break takes place.  Is it the Friday when school gets out or after the normal weekend for that parent?  Same thing applies for determining when the break ends.   This can end to hours of frustration and unnecessary expenses. 

How do you avoid this problem?  Put it directly in your Decree would be the easy solution.  It would be less expensive and less frustrating to simply modify the Decree to state that the Christmas break begins on a certain day and ends on a certain day.  If not, you will continue to be frustrated and continue to pay an attorney for the e-mails and the phone calls. 

Another related issue is extended time during the summer.  Unlike the vagueness of Christmas time, the code is clear that:

                 “ Both parents shall provide notification of extended parent-time or vacation weeks with the                     child at least 30 days prior to the end of the child's school year to the other parent and if                     notification is not provided timely the complying parent may determine the schedule for                     extended parent-time for the noncomplying parent.” 

There is a penalty for non-compliance so make sure you get that request in.  Again, if this is a constant battle, it may be better to amend your Decree to state that in odd number years the custodial parent will have first dibs in even number years and the non-custodial parent will have first dibs in odd number years or something similar.

The goal is to minimize disputes and spend less.  Taking the time to modify now when things are not heated up makes more sense than dealing with the frustration.

For more information contact Attorney Drew at www.attorneydrew.com

Enforce Your Decree

Far too often I am contacted by someone who has been taking manipulation from their ex regarding their divorce decree. The problem is that the manipulation usually is permitted because they are trying to be nice or trying to make sure their child(ren) gets to see the other parent.  This manipulation often can be abusive as one side feels that they are constantly giving and not getting anything in return.  Frustration has finally reached the point where I the lawyer am being contacted to try and resolve the issue.  This is good for my business.  I file a  motion, get paid, and show up in curt to argue. 

There is a simpler solution -- stick to the terms of your divorce decree.  Enforce what is written and ordered by the Court. If changes need to be made that are not temporary, then have the divorce decree modified, but as soon as you start agreeing to change the enforcement of the divorce decree, you have just walked into a wall of potential problems.  These problems are going to cost you time, money, and frustration.

In short, enforce your divorce decree.  It is worth it in the long run.

For more information go to www.utahdivoreexpert.com

How soon can I be divorced?

How soon can I be divorced?

            While Utah law has a 90 day waiting period, that does not necessarily mean that you will have to wait 90 days. The 90 day waiting period applies even if the parties are in complete agreement on the divorce. Recent emphasis on the waiting period, however, has made it increasingly difficult to obtain a waiver from the Court of the 90 day period.  Factors the Court will consider in determining to grant a waiver typically are as follows:

           

       (1) Is this your first marriage?

       (2) Is there a legitimate reason for waiving the 90 day period such as someone needs to have their name changed or restored for business or other legitimate reasons?

        (3) Are there children involved and have the parties completed the required divorce education classes?

        (4)  How long have the parties been separated?

If the parties are not in complete agreement and the divorce is contested, certain factors to consider when analyzing how long a divorce will take include:

        (1) The type, number, and complexity of the contested issues;

        (2) The desire of the parties to set aside their emotions and their willingness to settle;

        (3) The attitude and litigious nature of your spouse; and

        (4) The desire for litigation of the lawyer of your spouse.

Experience shows that the single most important factor in the length of a divorce is the intensity of the feelings between the parties. When the parties genuinely dislike each other or feel betrayed and hurt, the divorce tends to last longer because revenge and “winning” become the primary motives.  Also, if there is a dispute over child custody or the payment of alimony, the divorce will often need to take longer in order to conduct discovery or involve a child custody evaluator to provide insight on who should have custody.    

For further information contact Attorney Drew Gilliland at www.attorneydrew.com

Parent-Time -- Holidays 2013

Parent-Time – Holidays

Determining parent-time during the holidays can be difficult and is often the source of contention between parents.  If you are the non-custodial parent of a child over the age of 5, you will have:

Christmas Break the first portion including Christmas Eve and Christmas Day, continuing until 1 p.m. on the day halfway through the holiday period, if there are an odd number of days for the holiday period, or until 7 p.m. if there are an even number of days for the holiday period, so long as the entire holiday period is equally divided.

The last day of school before the Christmas Break for 2013 is December 20^th.  There is always some discussion over when the Christmas break begins.  Typically this should be the first day after the last day of school (or December 21 for 2013).  School starts again on January 6, which creates an even number of days (16) for the 2013 Christmas Break.  The exchange should take place on December 28 at 7 p.m.

The custodial parent will have the rest of the Christmas Break as well as Thanksgiving.

For more information visit www.attorneydrew.com