How to Divorce -- Discovery

Discovery – The Financial Declaration

            Unless your case is settled quickly, you will be required to participate in “discovery” proceedings.  Each party must have all of the information and documentation necessary to prepare for mediation, to engage in settlement talks, and to prepare for trial.  Utah law requires that each side provide a Financial Declaration on the State approved form as well as supporting documents for the Financial Declaration such as:

o  For the two tax years before the petition in this case was filed, complete federal and state income tax returns, including Form W-2, Form 1099, and Form K-1, and supporting tax schedules and attachments filed by you and by any entity in which you have a majority or controlling interest.

o  Pay stubs and other evidence of all earned and un-earned income for the 12 months before the petition in this case was filed.

o  All loan applications and financial statements prepared or used by the party completing the financial declaration within the 12 months before the petition in this case was filed.

o  Documents verifying the value of all real estate in which the party has an interest, including the most recent appraisal, tax valuation and refinance documents.

o  All statements for the 3 months before the petition in this case was filed for all financial accounts, including checking, savings, money market funds, certificates of deposit, brokerage, investment, and retirement.

o  If any of the documents required to be attached to this Financial Declaration are not reasonably available or are in the possession of the other party, then estimate the amounts entered on this Financial Declaration, and complete Paragraph (13) explaining the basis for the estimation and why the documents are not available.

The Financial Declaration is a financial balance sheet showing income, expense, assets and liabilities and must be completed as correctly as possible.  Any amounts estimated must be set forth as estimates with an explanation as to the reason and basis for the estimate.   The Petitioner is required to submit to the other party the Financial Declaration within 14 days of service of the Answer with the Respondent providing a Financial Declaration the latter of 28 days from the Petitioner’s service of a Financial Declaration or 28 days from the date of the Respondent’s appearance.  A copy of the Financial Declaration and a Certificate of Service is filed with the Court, but most courts only want the first page of the party’s taxes or a pay stub to prove the party’s income. 

Because a Financial Declaration becomes evidence should the matter go to trial and is used for making any temporary orders, the amounts set forth in the expenses and income should be correct.  Often, there is a tendency to overstate expenses to avoid paying alimony or attorney’s fees, but a savvy attorney/party will point out such discrepancies to the court making you look bad and untrustworthy.  Since a divorce trial can come down to credibility, you do not want to make a mistake with your Financial Declaration.  

How to Divorce -- Documents

REQUIRED DOCUMENTS

            A complete picture of the assets and income of both spouses is absolutely necessary and required to litigate a divorce case.  Both parties will be required to file a Financial Declaration and verification of income with the Court.    Below is a list of typical documents needed in a divorce case.  You will want to gather these documents as soon as possible.  Another benefit of gathering these documents is that possession of these documents will help in preventing your spouse from dissipating or secreting any assets.

1. Income Tax Returns.  Completed personal, corporate, partnership, joint venture, or other income tax returns, state and federal, including W-2, 1099, and K-1 forms, in your possession or control from the start of the marriage.
2. Income Information.  Current income information, including payroll stubs and all other evidence of income since the filing of your last tax return.
3. Personal Property Tax Returns.  Filed in this state or anywhere else from the start of the marriage.
4. Banking Information.  All monthly bank statements, passbooks, check registers, deposit slips, canceled checks, and bank charge notices on personal and business accounts, certificates of deposit, and money market and retirement accounts from banks, savings and loan institutions, credit unions, or other institutions in which you or your spouse has an interest.
5. Financial Statements.  Submitted to banks, lending institutions, or any other persons or entities, which were prepared by you or your spouse at any time during the last five (5) years.
6. Loan Applications.  Any Loan Applications made within the last five (5) years.
7. Brokerage Statements.  Monthly statements from all accounts of securities and/or commodities dealers or mutual funds maintained by you or your spouse during the marriage, and held individually, jointly, or as a trustee or guardian.
8. Stocks, Bonds and Mutual Funds.  Certificates, if available, of accounts owned by either spouse during the marriage or pre-owned by you.
9. Stock Options.  All records pertaining to stock options held in any corporation or other entity, exercised or not exercised.
10. Pension, Profit Sharing, Deferred Compensation Agreement, and Retirement Plans.  Or any other kind of plan owned by you or by any corporation in which you or your spouse has been a participant during the marriage, including annual statements.
11. Wills and Trust Agreements.  Executed by you or in which you have a present or contingent interest or in which you are a beneficiary, trustee, executor, or guardian and from which benefits have been received, are being received, or will be received and which are or were in existence during the past five (5) years, including inter vivos trusts.  All records of declaration of trust and minute books for all trusts to which you are a party, including the certificates, if any, showing such interest and copies of all statements, receipts, disbursements, investments, and other transactions.
12. Life Insurance or Certificate of Life Insurance Policies.  Now in existence, insuring your life or the life of your spouse, and statements of the cash value, if available.
13. General Insurance.  Copies of insurance policies, including, but not limited to, annuities, health, accident, casualty, motor vehicles of any kind, property liability, including contents, and insurance owned by the parties during the past five (5) years of the marriage.
14. Outstanding Debts. Documents reflecting all debts owed to you or by you, secured or unsecured, including personal loans, credit card statements, and lawsuits pending or previously filed in any court.
15. Business Records or Ledgers.  In your possession and control that is either personal or business-related, together with all accounts and journals.
16. Real Property.  Any deeds of property in which you or your spouse has an interest together with evidence of all contributions, in cash or otherwise, made by you or on your behalf, toward the acquisition of such real estate during the marriage or thereafter.
17. Sale and Option Agreements.  On any real estate owned by you either individually, through another person or entity, jointly, or as a trustee or guardian.
18. Personal Property.  Documents, invoices, contracts, insurance policies, and appraisals on all personal property, including furniture, fixtures, furnishings, equipment, antiques, and any type of collections, owned by you individually, jointly, as trustee or guardian, or through any other person or entity during the term of the marriage.
19. Firearm.  Registrations issued or pending receipt of governmental registration documents, owned, possessed, or controlled by you during the last five (5) years.
20. Motor Vehicles.  All financing agreements and titles to all motor vehicles owned by you, individually or jointly, at any time during the last five (5) years, including airplanes, boats, automobiles, or any other type of motor vehicles.
21. Corporate Interests.  All records showing any kind of personal interest in any corporation (foreign or domestic) or any other entities not evidenced by certificate or other instrument.
22. Partnership and Joint Venture Agreements.  To which you have been a party during the marriage.
23. Employment Records.  During the term of the marriage, showing evidence of wages, salaries, bonuses, commissions, raises, promotions, expense accounts, and other benefits or deductions of any kind.  All records showing any fringe benefits available to you or your spouse from any business entity including, without limitation, auto, travel, entertainment, educational, and personal living expenses.
24. Employment Contracts.  Under which you or your spouse have performed services during the past three (3) years, including a list of description of any oral contracts.
25. Charge Account.  Statements for the past three (3) years.
26. Membership Cards.  Documents identifying participation rights in any country clubs, key clubs, private clubs, associations, or fraternal group organizations during the past three (3) years of the marriage, together with all monthly statements.
27. Judgments and Pleadings.  In which you have been a party to, either as Plaintiff or Defendant, during the marriage.
28. Medical.  Bills, prescriptions, evaluation reports, or diagnoses for psychiatric treatment received during the last five (5) years.
29. Appraisals.  Any asset owned by you for the past five (5) years.
30. Safe Deposit Boxes.  A list of contents as well as the people authorized to enter.

How to Divorce -- Child Custody

There are two types of physical child custody in the State of Utah.  These types of child custody are sole child custody and joint child custody.

Sole Child Custody

According to Utah child custody laws, sole child custody occurs when a parent is designated as the custodial parent and the non-custodial parent in limited to 110 or less overnights with the child.  The advantage of having sole child custody under Utah's child custody laws is that the custodial parent is given all sorts of rights and presumptions.  For instance, absent language to the contrary the parent with sole child custody is presumed to have the final say on matters related to the child such as health, religious, residence, etc.  In addition, the non-custodial parent will likely have to pay significantly more in child support using the Utah child support calculator, which can be found at https://orscsc.dhs.utah.gov/orscscapp-hs/orscscweb/action/public/custodyWorksheet/show.


Joint Child Custody

According to Utah child custody laws, joint child custody occurs when the parental arrangement is something more than the 110 overnights under a sole child custody arrangement.  This arrangement can be 50/50 parent-time or something less.  Some argue that this is the closest thing to the parents still being together.  Others argue that a joint child custody situation places too much stress on the minor child.  Regardless, there are advantages and disadvantages to having joint child custody.  In dealing with your divorce, you will want to review and understand child custody laws before determining which type of child custody you prefer. 

How to Divorce -- Child Custody

Determining Custody

  

      Child custody laws are complex and require expertise if there is a dispute over who should have custody of a child.   The court considers all relevant factors in applying child custody laws, some of which include:

•  The relationship of the child with his/her parents, siblings and any other person who may significantly affect the child; 
•  The mental and physical status of all individuals involved; 
•  Whether the parent is willing and can care for the child; 
•  How a parent respects the parental rights of the other parent; 
•  Each parent's adherence to a parenting time schedule; 
•  The suitability of parenting plans submitted by each party; 
•  How close the parent's live to each other or the child's school; and
•  The willingness and ability of each parent to cooperate.

In order to assist the court in applying child custody laws, the parties typically should engage the services of a child custody evaluator.  Costs for the child custody evaluator are usually split between the parties and a settlement conference is held with the evaluator.  Child custody evaluators generally cost between $3,000 to $10,000.   At the settlement conference with the child custody evaluator, the parties review the evaluator's  recommendations and determine whether the child custody issue can be settled.  If the issues is not settled, the parties proceed to a trial where the child custody evaluator may be called to testify and explain to the court the child custody evaluator's recommendations.