How to Divorce: Parent-Time

How to Divorce – Parent-Time

Typically in a divorce with children, parent-time is always a critical issue. In Utah, child support and custody are determined based on the number of overnights that a parent has with a child.  Most parent-time issues deal with the difference between sole physical custody and joint physical custody. In Utah sole physical is defined as one party being the primary custodial parent with the other party having parent-time.  The Utah legislature has set the magic number at 110 overnights using the rotating weekends and holiday schedule set forth in http://le.utah.gov/code/TITLE30/htm/30_03_003500.htm.  For children over the age of 5, the rotating “statutory minimum” schedule is every other weekend from 6:00 p.m. on Friday to 7:00 p.m. on Sunday, and one 3 hour visit during the week usually from 5:30 p.m. to 8:30 p.m. with additional overnights for holidays, winter, spring, and summer vacations.

Joint physical custody is technically anything over the statutory minimum of 110 overnights, but typically if it is just a couple of nights over, the label does not quite apply.   In a joint physical custody arrangement, neither party is designated as the primary physical custodian (unless they agree to this) and a joint parenting relationship exists between the parties.  A joint physical custody arrangement also has other legal ramifications such as hindering a parent’s ability to move further than 150 miles from the other parent as well as its affect on child support.

Without trying to sound too cynical, child support often motivates divorce litigants to push for joint physical custody.  A few numbers may be helpful to understand why this may happen.  Assuming that the Petitioner has sole physical custody with 2 minor children and makes $2,000 per month and the Respondent makes $4,000 per month.  The Respondent’s child support obligation would be $864 per month.  Same facts only now the parenting arrangement is 50/50, which results in Respondent’s child support obligation being $231 per month.  Giving Respondent an extra 30 overnights reduces the child support obligation to $686 per month.  With these numbers, it is easy to see why parent’s fight for a joint custody situation.

 

How to Divorce

HOW TO DIVORCE -- TRIAL

            Going to court is always bound to raise your anxiety or make you nervous.  Knowing  what is going to happen or how to act, should help lessen your anxiety and nervousness.  When you go to court, you should dress comfortable and conservative in a manner that shows respect for the court.  You should expect to see in the court a judge, a court reporter, a court clerk, and a bailiff.  There will also be your spouse, his or her attorney, experts, and other will/may be present.  Cases will be heard before the judge.  Being in court can be tedious.

1. Court Procedure. In general, the procedure will be as follows:

a.       There is a brief opening statement to inform the judge about our case.  This usually takes place in open court.

b.      The petitioner will put on his or her witnesses on first and then the respondent puts on his or her witnesses.  Each witness will be called and sworn and then testify.  The witnesses could include the petitioner and the respondent.  If you are the respondent in the case, you may be called for cross-examination (this means that the opposing attorney may request your testimony under oath) and/or as the first witness. 

c.       Once the case is complete, the attorneys argue the issues, which may require the attorneys to submit briefs and/or memoranda after trial. 

d.      The judge may decide the case immediately, may take it under advisement (study), or may wait to decide the case (hand down a judgment) after receipt of the memoranda or briefs.

2. Guidelines Court.  The following will help improve your appearance and testimony in court:

a.   The judge (the decision maker) will be watching you all the time.  Try not to react when you believe your spouse or some other witness is lying.  Sit quietly and write notes to your counsel if something occurs that needs to come       to

      your attention.

b.   Tell the truth; never guess, make sure you understand each question, and answer only that question. 

c.   Always take your time and talk loud enough for everyone to hear you.  Don’t chew gum, and keep your hands away from your mouth.

d.   Be courteous.  Be calm.  Be confident.

e.   Be sincere, straightforward, and direct. 

f.    Do not be ashamed to tell the whole story.   

g.   Be careful of your demeanor whenever you are in the courtroom.  The judge will observe you at the counsel table as well as on the stand and will draw conclusions both from observation and your testimony.

How to Divoce -- Negotiations

How to Divorce – Negotiating a Settlement

             Your approach to your divorce should be simple -- always try to act so as to not make a bad situation worse.  However, that does not mean that you should not stick to your position when it is fair and equitable and the other party is acting like a bully.  So much of a personal relationship deals with power – who has it and who controls it.  When negotiations come from equal power, a deal usually gets made.  Power comes from knowledge and an honest assessment of you position.   There is a body of studies that show that a negotiated agreement between the parties serves both parties best.  A negotiated agreement allows the parties to personalize and fine tune the issues between themselves in a way that courts are often unable to do.  The judge will never be able to understand the parties the way they understand each other and their situations. It is always more prudent to work out a settlement if possible.

            The first step is to gather information and understand the issues.  You never want to negotiate without good information.  This information includes all financial records such as income, tax returns, bank accounts, retirement accounts, stock accounts, credit card statements, mortgage statements, etc.  These are all documents you would typically get in divorce litigation.  You always want to start by determining the assets.  This creates power.

            After you have gathered the information, it must be applied to the issues at hand.  Is this case about child support?  Is it about alimony? Is it about custody?  Maybe it is about all of these issues.  I always find it helpful when attending mediation to sit down and go over every possible issue to determine what is important and what the information says about the issue.  

            Finally, you will want to determine what points you are willing to move from your ideal issue.  Keep in mind that it can be better to pay more child support or offer more money than to pay your attorney the same amount.   Generally, there is less legal expense involved in negotiating a settlement than in trying the case in court.  This is the carrot that can motivate you towards negotiating from a place of conciliation rather than emotion. 

How to Divorce -- How Long?

TYPICAL DIVORCE QUESTIONS

            Most clients usually have the same fears and questions with respect to their divorce.  Below are two of the most common questions that clients ask, and their answers (which may be unsatisfying to some. 

Will I Win?

            What do you want to win?  Because a divorce case involves families and emotions, determining victory can be difficult to do.  A common saying is that no one wins in a divorce case.  This is especially true when the battle becomes bitter and long.  You can measure victory by how little you have to move from your position or you can measure victory (when children are involved) by how intact your children’s relations will be with both of you when the divorce is over.  If your intent is to punish your spouse or win by way of an all-out, no-holds-barred victory, such a goal is probably unattainable and will only lead to frustration.  Such a goal also leads to longer and more expensive divorces, which can be good for the lawyers, but not for the family. 

How Long Will the Divorce Take?

            Utah requires a 90 day waiting period unless such period is waived by the Court.  Recent emphasis on the waiting period has made it increasingly difficult to obtain a waiver from the Court.  Thus, even if there is a quick settlement, you will likely need to wait the 90 days.  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.