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

Does litigation work in a divorce with children?

In a trial each side gets to present their case through evidence and through their attorney.  When the last words are spoken, the decision now rests with the judge.  How comfortable are you with the judge determining who gets custody of the children, what parent-time will look like, and how you and your ex will co-parent?  Does this scare you?  The judge's decision tends to be very difficult to change once it is in place.  Keep in mind that the judge often has limited information because of the rules of evidence that present certain types of testimony.  Often cases come down to he said/she said situations.  Is this how you want your children's futures to be decided.

So what is the solution?  The answer is mediation or collaborative divorce which allows the parties to work out a resolution as best they can.  In mediation and collaborative divorce you and your ex have the opportunity to craft a plan that works for you and your children. 

For more information contact Attorney Drew at andrew@gillilandlaw.com

How do I enforce my Decree of Divorce?

     A Decree of Divorce is only writing unless it can be enforced.  There is always frustration when your ex will not live up to what is set forth in the Decree.  You also maynot have the money to enforce the Decree or the enforcement issue is so small that it may not seem worth it.  The problem is the lack of enforcement usually makes your ex feel like they can get away with ignoring the Court’s order as set forth in the Decree.  Furthermore, the Decree is the order of the Court and not your order meaning that failure to do what it says is basically telling the Court that you do not care what the Court says.  Judges do not like this.  Here are some tips to enforcing the Decree.

1.      If it is about not returning the kids or not getting your visitation, call the police and ask law enforcement to enforce the Decree.  Even if they refuse to do so, you will at least have a record of the incident.

2.      If it is about child support, contact the Utah Office of Recovery Services and have them go after the child support.

3.      If it is about parenting issues, make a formal demand for mediation and if he/she refuses you will be able to skip having to pay a lawyer to make the demand.  The demand should be in a written letter sent via certified mail. 

4.      If it is about failure to pay medical bills, day care, or other debts rising form the Decree, file a Motion for Order to Show Cause.  A judgment can typically be obtained if you have your documents together and submit them to the Court.

For more information please visit Andrew Gilliland at www.utahdivorceexpert.com

How Do I Serve the Divorce Petition?

How do I serve the divorce petition?    

                After filing the petition your spouse will need to be officially served with a copy of the petition and a summons.  As summons just simply says that a divorce petition has been filed at the curt and that if you do not file an answer within the time period (20 days if your spouse lives in Utah and 30 days if your spouse lives outside Utah) a default may be entered against your spouse.   You cannot personally serve your spouse unless your spouse is willing to sign a waiver of personal service or sign a document acknowledging that he has received the divorce petition.  The reason for personal service is that the court will want to make sure that your spouse has knowledge of the divorce proceedings.  Also, if your spouse does not respond to the divorce petition, a default divorce (meaning you win!!) can be entered against him/her.  

                You do not necessarily need to use a sheriff or even a constable to serve someone with the petition, but once again you cannot personally do this.  Your spouse must be served by someone over the age of 18 that does not have an interest in the divorce proceedings such as you or one of your children.  A friend can usually serve your spouse.  If you want to use a constable, at each court there is a box where the petition and summons can be left.  You then call the number that is on the box, pay the fee for service, and the constable will pick up the document and serve your spouse.  These boxes can be found by simply asking a court clerk where they are located.  The fees usually range from $35 to $65 depending on how difficult it is to locate your spouse.  I have seen some fees get over $100 when there are multiple trips to locate your spouse.  To avoid such costs, you should give the constable specific information on how to serve your spouse.  At work it usually the best because you know they will be there. 

                Service of your spouse can be done in person with the person serving your spouse personally handing the petition and summons to your spouse.  If they refuse to take the documents, the person serving can state what the documents are and then leave them for your spouse to take or not take.  This avoids the scene we have watched in movies and televisions shows where they hold their hands up in the air and refuse to grab the documents.   If your souse is not home at the time, the person serving can leave the documents with someone over the age of 18 at your spouse’s residence. To avoid these types of situations, I prefer to serve someone at work where they do not want a scene and where you know they are.

                After your spouse has been served, the person who served your spouse must complete an affidavit stating specifically how your spouse was served (personal, left documents, or other) along with the date and time of the service.  This is critical because the deadline for your spouse to file a response to the petition with the court (and avoid a default) starts from the day your spouse was served.  This affidavit must be filed with the court.

If you have further questions, please contact attorney Drew at andrew@gillilandlaw.com

NOTHING HEREIN IS INTENDED TO BE LEGAL ADVICE AND YOU MAY NOT RELY ON IT AS SUCH.  CONTACT AN ATTORNEY SHOULD YOU HAVE QUESTIONS.

Divorce --Playing Nice Does Not Always Work

Playing Nice Does Not Always Work

Your divorce can cost you a lot of money and time if you are not careful.  Remember that a divorce is filing a lawsuit and then pursuing it to the end, which may mean going to trial if you and your spouse cannot agree.  Going to trial means leaving it up to the judge to decide what he/she thinks is best for you and your children if you have them.  The uncertainty can be unsettling. 

There are situations where your spouse or even you may not want to finalize the divorce process for whatever reason.  Usually this occurs when one of you is happy with the status quo.  Your spouse has sole custody and you are paying child support so why would they be in a hurry?  This is especially true when the court has entered temporary orders setting these types of things until the judge makes the final determination at trial. 

When your spouse does not want to change the status quo, you can be left with a battle to get the status quo changed.  True the court rules do try and move things along, but they offer minimal protection to the party who is not satisfied with the status quo.  That is when you have to start finding ways to get the court to change the status quo.  If you sit back and do nothing, it will cost you move in the long run and your divorce may never actually happen.  That can be frustrating. 

You can always consider pushing the mediation date forward by filing a motion to order the parties into mediation.  You can, if your situation warrants it, ask the court to modify the temporary orders.  You can also send out your document requests and supply your documents as soon as possible.  There sometimes is an advantage to no sitting back and playing nice. 

If you have any questions, please contact Attorney Drew at www.attorneydrew.com or andrew@gillilandlaw.com.