How to Divorce -- Common Questions

             Most people going through a divorce have the same fears and questions.  They also hold beliefs about the legal process in a divorce or about the behavior of the people involved that are not accurate.  These beliefs are often called myths or urban legends. Some common questions are:  Am I Going to Win?
How Long Will It Take? How Much Will It Cost?

            It has been said that no one wins in a divorce case.  The attorney's goal is to raise all issues structured to your case to your advantage, and make sure you “lose” as little as possible.  However, if your intent is to punish your spouse or win by way of an all-out, no-holds-barred victory, your goal is probably unattainable in a divorce context especially if there are children involved.  While it is always difficult to estimate how long your divorce will take, the following factors are relevant measures of the time necessary to complete the divorce:  

The complexity of the contested issues;

The intensity of feelings between the parties and whether there is an inclination to settle;

The attitude and tenacity of your spouse; and

The tenacity and desire for litigation of the lawyer of your spouse.

Through experience, the factor that is most relevant tends to be the intensity of the feelings between the parties and how much they want to fight.

            It is often difficult to estimate the total fee even when the attorney knows what issues are contested, the intensity of the parties’ feelings, and the complexity of the issues.  In uncontested matters, you should be told upfront what the fee will be.  For contested matters, you should consider the hourly rate of the attorney and set aside the funds to last through the case.   Unfortunately, attorneys are often motivated by the paying clients rather than non-paying clients.  There are other costs to consider as well. 

 TIME.  You will have to spend your time to prepare your lawsuit in conjunction with your attorney.          You should always balance the time you will spend, the stress, and the costs to determine whether certain issues are worth litigation.

STRESS.  Going through a divorce is one of the most painful experiences you can have.  

COSTS.  If your funds are limited, you should always consult with your attorney on what issues can be settled. 

How to File For Divorce

How to file for divorce?  To file for a divorce in Utah you will need to prepare a divorce petition.  A divorce petition is a legal document consisting of a series of numbered statements in which you tell the court that you live in the county where the divorce is filed, identity your spouse and any children, and then explain to the court what you want done with the children, assets, debts, and any other special provisions.  You will also need a cover sheet (which is provided for by the Court).  The filing fee is $310.  Other documents that are to be filed include a divorce certificate (requires an $8 fee), a child support worksheet,  a military declaration, a military order, and a summons.  Once the documents are finalized, signed, and notarized (where necessary), you take them to the district court in the county where you live and pay the filing fees.   You will want to bring copies of the documents or you can purchase copies at the court house.  The summons and petition will need to be served on your spouse.  This can be done by leaving a copy of the petition and the summons in the Constables file at the court house.  The cost is generally between $44 and $75 depending on how difficult it is to serve your spouse.

A link to the Utah State forms can be found on my website at www.attorneydrew.com on the Divorce   Resources page.

How to Divorce -- Child Support

Child support is always a critical issue.  In Utah, child support is required by law and cannot be waived by the parents.  The policy behind this is that a parent should be financially responsible for their child and that the support is for the child so a parent cannot waive the child support. Child support issues can also affect a custody battle because Utah uses one formula for calculating child support when one party has primary custody and another formula (based on the number of overnights the child spends with each parent) when the parties share joint custody of a child. 

The Utah Courts provide a child support calculator that allows a party to plug in the gross monthly incomes of the parties and the number of children to get an amount for when a party has sole custody. To calculate joint custody, the parties simply add the number of overnights that the child will spend at each parent's residence.The child support worksheet must be filed with the Court.  The calculator can be found at http://www.utcourts.gov/childsupport/calculator.

 

How to Divorce

The first step in determining how to divorce is whether the divorce will be contested or uncontested.  An uncontested divorce is where the parties have agreed upon everything and need the court to enter an order based on the parties' agreement.  In a contested divorce, there is disagreement between the parties and each party should have an attorney to represent them.  In Utah, a divorce starts with the filing of a petition and serving the other party.  Service is generally handled by the constable for a fee ($40-$80).  Once the party is served, they will have 20 days to file an answer and a counter petition for divorce.  The parties are required to exchange financial information in a Financial Declaration and then attend mediation.  If the issues are not resolved in mediation, the parties will proceed to trial.  Depending on the issues involved, this may require depositions, obtaining experts, or a child custody evaluation.  A trial is then held and the judge makes a ruling and entered a decree of divorce.  Each party will have the opportunity to appeal the judge's ruling.   

Communicate in Writing

When you go to court, a "he said she said" argument is always a roll of the dice.  Always communicate in writing.  If there is a conversation, put the contents in writing after the fact and send it to your ex-spouse.  Even if they later disagree with the contents of the writing, you will be able to point out what your understanding was at the time of the writing.  That is better evidence than "he said she said."

Preparing Yourself

If you have not yet, it is time to get a living will.  Don't leave the tough decisions to a loved one who may regret making a decision the rest of their lives.  Make sure your directives are clear and understood when it comes to your health care.

When to Negotiate.

The toughest part about a divorce with children is that you are forced to negotiate with your spouse on highly important and sensitive matters.  The standard practice of offer and counter offer creates its own set of problems as both sides feel like they are giving up too much and being taken advantage of.  Even though you no longer want to be with your spouse, you do want to be with your children.  Negotiation needs to start with finding out what is important to the other party and why its important.  Mediation often helps this problem out, but that is usually after litigation positions have been taken.  It is best to try and negotiate with a lawyer present who does not represent either party, but represents the process.  This should be done prior to filing divorce papers and positions are taken.   

What does winning a divorce mean?

Can you really win a divorce?  This all depends on your definition of "winning".  On financial matters and the division of personal property there can definitely be victories if those are your only issues.  If there are children, however, those victories can lose the war if one spouse become bitter over losing personal items or paying more money.  This bitterness can creep into how the parents deal with each other post-divorce and their attitudes in front of the children.  Thus, you can win the battle but lose the war.  Of course, you must stand up for what you want and believe you are entitled to.  That goes without saying.  It is when you fail to compromise at all and positions become hardened and litigious that the whole process could be a colossal failure for your children.  You simply got to find the right balance while protecting your rights.

Leaving it all behind

We do leave it all behind when we go.  That is why we should be careful to consider what we leave behind and how it may influence family relationships.  To make sure that your heirs do not feel slighted, you should sit down and have an honest conversation with why your estate plan is the way it is.  Obviously, this takes courage and planning, but it will work to your family's benefit in the long run.

Divorce Battles and Wars

Divorce law is interesting because you really have two aspects to consider.  The first is the immediate needs of your client and the various battles that arise in domestic litigation.  The second is the long term relationship that the parties often have when they have young children.  A good divorce attorney needs to recognize and implement these two aspects to make any divorce work for the children.  

The Pen is Mightier Than the Word

We have all heard the phrase he said/she said.  In the legal world, that means the Judge will be left with the discretion as to what party the Court will side with.  This can often be frustrating to parties as they know what the other party said and agreed upon, but cannot prove it in the legal sense.  If you have a verbal agreement, it is helpful to write a follow-up e-mail or text to the other party summarizing the agreement.  This creates a running record of what was said and agreed upon.

When its Time to Fight

Family law can turn ugly with one misspoken word or an insensitive comment.  What do you do when communication breaks down and settlement talks are getting you nowhere?  The simple answer is that it is time to fight!!  

Why am I cynical?

Yesterday, I spent the morning doing a child custody evaluation settlement conference.  I was shocked at how often I thought the the evaluator's suggestions would never work.  Child custody issues often seem to be based on power and a "screw the other" mentality.  So when the evaluator would express confidence that the parties could work something out, I was thinking if they could work it out we would not be here right now.  I understand the need to trust the other and to hope that everyone will act properly, but it seems that control and power seem to trump this need.  It would seem that it is in the child's best interest to not give control or power to either parent.  Maybe that is why there is a movement towards favoring joint custody.  This would then weaken power and control and force the parties to deal with each on parenting issues.  Parenting coordinators would also be helpful to keep the parents focused on parenting and not reliving their disputes.   What to you think?

Time for Estate Planning

Nobody likes to think about their own death and what will happen when they are gone.  This is true especially when that person is young.  However, when your young is the best time to plan.  When you are just starting out, it seems that you are usually operating on principles and values rather than allocating actual assets (usually because you have none).  Sometimes we become attached to certain assets and do not want them to leave our hands, especially when our natural heirs are not exactly as we would want them to be.  Moreover, when it comes to the care of your children, the earlier you establish the caregiver the better.  You do not want your children ending up with someone that you did not select.  In short, have the conversations know with your spouse, make the tough decisions, and get it done.  Estate planning is not simply for old people. 

The Disappearing Spouse

What happens when you come home from being out of town and your spouse has cleaned you out and disappeared?  The reaction is typically one of anger and then panic as you realize your life has just changed dramatically.  The worse part is when you have kids and they are also gone.  If there is no communication from your spouse as to where they have gone, this could be a parental kidnapping case and you should call the police.  If you know where your spouse is, call a lawyer and file papers right away.  Divorce is about control in many cases.  If they have the money, kids, and stuff, they have the control.  The only way to get it back is to file for divorce and a motion for temporary orders.  Get the ball rolling so you can get some control back.

Drew

Divorce and Valentines

Should Valentines be a day-off for a divorce attorney?

Enforcing Your Decree

What happens when the divorce is final, but the other side won't live by the terms.  Most decrees contain a mandatory mediation provision prior to resorting to relief from the Court.  Thus, the first step is to make a demand for mediation.  If mediation fails or the other party refuses to participate in mediation, you must file an order to show cause with the court.  This means the other party will have to answer to the court the allegations that you make against them for not following the decree.  These motions are quite frequent and often necessary to force the other party to deal with the issue.  You must know what specific relief you are seeking from the Court to make your motion successful.  When it comes to child support and parent-time issues, it is important to see it through so that there can be an actual finding of contempt.  This will strengthen your case later for harsher penalties and even for a change of custody should parent-time continue to be denied.  In other words, on the small stuff, mediation hopefully will work.  On larger issues, do what you need to do to enforce the decree to the letter.

Dollars and Sense of Divorce

Divorces can be costly!  Sometimes you need the divorce that you can afford rather than the divorce that you want.  This is often very hard to accept when the reality of how expensive a divorce is hits you.  It is especially hard when you factor in that lawyers are time brokers.  All we have to provide for ourselves is our brains and the time it takes us to do something.  This financial reality can create a tension in any attorney/client relationship.  A divorce attorney should sit down with their client and walk them through the dollars and sense of the divorce process.  An honest upfront appraisal of the costs associated with the battle and the likelihood of the outcome creates a workable relationship between the attorney and the client.  This makes sense when it is your dollars.

Alimony and Divorce

Alimony in Utah is always a bitter issue.  The ex-husband always dislikes the idea of having to support his ex-wife from his hard earned money.  This is especially true when alimony is for a long period.  The ex-wife feels that his attitude about support is a slap in the face because she supported him throughout the marriage.  Adding to the bitterness is that there is no magic formula for alimony.  One party claims they cannot afford it and the other claims that they cannot live without it.  The lack of a standard adds to the bitterness.  While there are many formulas out there to calculate alimony, these formulas often do not take into account the human aspects of alimony.  The question is . . . should they take into account the human aspects or should alimony simply be dollars and sense? 

Every Minute Matters

When parent-time is limited, every minute does matter.  One practice I have noticed is that the goodbyes are taking a long time when the child is being picked up.  This cuts into the other parent's time.  Goodbyes should be short and simple because the child is returning at the end of parent-time.  Curb side pickups may be the best solution.http://www.drewlawcenter.com

Denial of Parent-Time

It is absolutely frustrating when you are prepared to pick-up your child and your ex simply is not that or will not let you seem them.  Police departments are sketchy at best on their enforcement of parent-time.  Sometimes the police will do nothing and other times they will do everything they can to enforce the parent-time set forth in the Decree.  It really is hit or miss, and this can be frustrating.  While there are laws to be enforced for denial of parent-time, they rarely are.  Moreover, prosecutors often do not pursue such cases.  The solution is an expedited hearing (48 hours) so that make-up time (if warranted) can be had. This is the most economical and efficient solution.

Child Custody Issues

It is tough not to let your post divorce relationship with your ex-spouse be the same as your married relationship.  Forging a new relationship is difficult, but it is essential to having your child(ren) understanding the new order of things.  Child custody laws are often made as default provisions and should only be relied upon as a secondary plan when all else fails.  Only the parents have complete control to determining what this child custody relationship will be.  I have often been amazed to find out that the parents of one of my kid's friends are divorced.  This is because there is no tension between them and they are both working together for the benefit of the child(ren).  In front of me (and the child(ren)), they keep things on a positive level rather than rehash their old relationship.   Only when one parent does not play nice should a child custody attorney be brought in to let the other parent know that such behavior will not be tolerated.  Unfortunately, in these situations, the law takes over and the parent's lose some of their control over developing that new relationship.  This can lead to further frustration.        

Child Custody Issues

Over the years I have noticed a trend that disturbs me in divorce matters.  Many times custody battles are based more on what is in the best financial interest and not the best interest of the child.  It is one thing to fight for more time with your children in a divorce or paternity case because you want to spend time with them.  That I applaud.  However, when trying to get joint custody solely to avoid or reduce child support, that is a disturbing trend.  Civility, commons sense and good lawyering can hopefully get pat this disturbing trend. 

Freedom and the Law

Today is a great day to reflect on how the law can impede freedoms as well as create freedoms.  The difference is in who is making the laws.  That is why we should all take our civic responsibilities seriously and be involved not matter how futile it seems at first.  Remember the greatest changes begin with individuals making decisions not to take it any more.  Today is a good day to remember that!

Divorce and Child Custody

What do you do when your ex does not parent the way you want them to?  The initial step should be communicating with your ex, but if the divorce is still to fresh or the rift to wide, this is not the solution.  Usually, a parent files a motion for an order to show cause why the other parent should not be held in contempt for not following the parent plan (which should be part of the Decree).  This in turn requires mediation and a hearing before the court.  If the matter is minor, the penalty is usually simply a stern warning from the court to knock it off and act like a responsible parent.  The offending party, however, usually does get the message because a continuation of behavior could lead to serious consequences with the court.  Thus, even if you are not sure you that the court will find your ex in contempt, this may be the only way to let them know you are serious about their bad behavior. 

Why can't we all just get along --post divorce that is!

Divorce is tough enough, but post-divorce is even tougher!  When you are married there are certain parenting issues that you are willing to overcome.  However, after the divorce, parents often will not let those thing slide.  The tough part is keeping their displeasure from the children.  I wonder what would happen if a Court could impose a small monetary fine each time a person speaks ill of the former spouse (except in court proceedings)?  It would make post-divorce more like being a professional athlete who can be fined for verbal indiscretions.  Would this derail the bad-mouthing parent?

Till Death Do You Part

Blended families make planning issues harder and require sensitivity and skill to avoid what could be a life defining dispute.  How do you tell your new other that you love them, but do not want their kids to get any of your stuff when you pass?  How do you tell your new other that you also want to make sure that they have no control over the stuff you want to leave to "your family"?  These are tough questions that require professionalism and understanding by all the parties to make the estate plan work.   

New Year Resolutions

Now that we have made our resolutions, we must do the tough part -- keep them.  Last year I decided not to set any goals to see if it made a difference.  I discovered that it really did.  When there is a purpose, there seems to be a way to achieve that purpose.  I have noticed over the last couple of days a renewed energy from setting my resolutions.  I have also noticed a pang of guilt when I do something that is not in line with them.  That is the joy of a making a resolution.