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.

Divorce -- When Your Spouse Hides Their Money

How do I get my spouse’s financial information?

                Before you file for divorce, you should gather all of your financial information.  This is often made more difficult if your spouse has been hiding financial records r ahs his/her own bank account.  Do the best you can even if all you can get is an account number.  This will help to track down financial records.  You should also take pictures of any valuable items that could be disposed of so that there is a record of their existence. 

                Utah law requires that each spouse submit a form Financial Declaration to the other spouse and the Court.  This document is used to determine income for child support and for temporary alimony.  Permanent alimony is determined by either agreement or mediation.  A Financial Declaration is basically a financial snap shot of your income, expenses, debts, and assets at the time you complete it.  Do not include your future projected income or expected debts or assets.  The information needs to be correct as of the date you sign it. 

                The Financial Declaration and all its attachments (discussed below) must be mailed to your spouse or your spouse’s attorney (if they have one) within 14 days after your spouse files an answer to the petition (if you filed the petition) or 28 days from the date your spouse sent you his/her Financial Declaration (if your spouse filed the petition).  The Financial Declaration will need to be filed with the Court as well. 

                Be honest!  The Court will review it and make sure that the numbers are realistic and make sense.  I have seen people claim that they spend hundreds on makeup and clothes each month even though they were individuals of modest means.  The Court was not happy and adjusted the Financial Declaration. 

                To verify income, you are required to provide:

·         your taxes for the prior 2 years with W2s, Form 1099s, Form K-1s

·         pay stubs for the previous 12 months

·         loan application or other financial statements that you prepared in last 12 months

·         deeds or other documents showing ownership interest in real estate along with a tax valuation or appraisal (if you have one).  If you do not have an appraisal, you need not get one.

·         bank statements, credit card statements, loan statements for the 3 months before the petition was filed.  For example, if the petition was filed in April, you will need statements for January, February, and March.

If you do not have these documents or cannot get them in time to file the Financial Declaration, you can explain in paragraph 13 of the Financial Declaration why you do not have the documents.  On all of these documents, you will want to remove you social security numbers (expect the last 4 digits) and account numbers (expect the last 4 digits) to protect your privacy.  These documents are not public records, but caution should be taken.  Typically you only need file the pay stubs and tax returns with the Court.    

                What if you are self-employed?  Self-employed cases (which occur frequently in Utah) tend to be the most contested because “income” is often categorized as a business expense.  If you pay yourself a salary, you list that and then prorate any bonus you receive at the end of the year over 12 months.  If you do not pay yourself a salary, you would list the business income and then add in expenses of the business to the expense section. 

                You will also need to take care in showing your monthly expenses.  Many people find it difficult to quantify the amounts they spend each month on laundry, clothing, entertainment, gas, etc. because these amounts fluctuate.  You are required to do some basic research on amounts you typically spend and make an educated estimate.  You can also take an amount that is spent only once or twice a year (such as clothes) and divide that over 12 months.  For instance, if you spend $600 a year on clothes on average, you can put down $50 per month on cloths.  If your children have school fees and other expenses of $600 each September, you can put down $50 per month.  It is critical that you put these amounts down even though they occur only once or twice a year.  For expenses, it is okay to make an educated guess.  Paragraph 13 allows you to list the item you estimated and explain why you estimated it as such.  However, there must be a basis for the estimate. 

                If your spouse is not honest on the Financial Declaration, the Utah rules allow you to send him/her discovery requests asking for specific types of documents and account numbers.  When these are obtained, a subpoena can be sent directly to the bank or company and they are required to send you the documents that you requested.  This is a great power to even the playing field with a dishonest spouse.

Contact Attorney Drew for more information www.attorneydrew.com

Do I Have to go to Mediation?

Do I have to go to mediation?

                Yes, even if you think there is no possibility of having success.  Utah requires mediation for divorces where the parties do not agree (which is most divorces).  I am a big fan of mediation because it is your opportunity to try and resolve the divorce without leaving it up to a judge.  No one knows your situation as much as you and your spouse.  Unfortunately, trials are not about necessarily about justice or the truth.  They are often about what evidence you have and what the judge will allow to be in the court room.  I always say that you are rolling the dice when you go to trial because the judge will make a final decision and you are left to deal with it.  The final decision could be something that neither of you likes and that does not work for your life situation.  This can be very frustrating. 

                Who selects the mediator?  In a perfect world you and your spouse will agree upon a mediator. This should be simple as most mediators are the same.  Some mediators are better than others simply because they work well with certain types of personalities.  If you are looking for a mediator, you will want to call him/her and ask some questions.  I will warn you that this is not easy to do as most mediators are busy and do not like to talk to one side in any great details.  I personally have mediators that I will work with and then others that I do not like to.  My opinion is based on whether or not I can settle a case with them.  Some mediators are very good at working the parties so that a resolution can be had.  Others work the process and seem to take a lot of time and waste a lot of money.  If you do not want to have a resolution in mediation (which you should not openly state to avoid being accused of sabotaging the process), the choice of a mediator may not really matter.

                The mediator must be a court approved mediator. The list of mediators can be found at http://www.utcourts.gov/mediation/provider/current_roster.html.  You will want to know the following from your mediator:

·         How much per hour?

·         Where will the mediation take place?

·         What is the success rate for resolving cases?

·         What is their specific process?

                Just a reminder that you do not have to settle in mediation.  When it is all said and done, the mediator simply files a notice with the Court stating either that no agreement was reached, a partial agreement was reached, or that a full agreement was reached.  You and your spouse are responsible for preparing and filing any agreement that you reach.

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

I Want a Divorce

I want a divorce so now what?

                You have reached the point where is seems that there is no longer any reason to stay married.  The good news is that Utah law does not require both parties to agree on a divorce.  You are free to file divorce papers at any time.  So when you’re ready – and only when you’re ready – you start with the divorce petition.

                While important to your Utah legislators (and less important in actual practice for your divorce), the “official” reasons for divorce have been put in writing in the Utah Code (where all laws passed by the legislators end up).  Two are sexual in nature: impotency at time of marriage (a wedding night surprise!) and adultery.   The other reasons are based on the other spouse simply being a bad person: purposefully leaving you, failing to take care of you, being convicted of a felony (a felony charge won’t do the trick apparently), cruel treatment leading to physical injury or great mental distress.  Finally, the third group focuses on causes that neither party could control:  incurable insanity and irreconcilable differences. 

                “Irreconcilable differences” is the catchall that allows you to divorce when all of the other reasons don’t apply.  It is Utah’s way to phrase the popular divorce phrase “no fault divorce” that we are all so familiar with over the years. 

                Simply put, you can pretty much get divorced for any reason.  What this means in practice is that your divorce does not need to be a mudslinging public battle between you and your spouse.  That does not mean that mud cannot be slung if it helps your case, but it is unlikely that a judge is going to care if your spouse likes to masturbate or keeps the house a mess.  Now if they are masturbating in front of the kids and a child has been injured because of the unsafe condition of the house, these bits of mud should be slung. 

                Okay, so you qualify for a divorce and want to start.  What do you do? The easy and self-serving answer is that you call my office at (801) 871-2240 and make an appointment, but that is not what this Divorce Guide is about.  I am writing to help you understand the divorce process before you contact an attorney. 

                A divorce starts with the filing of a divorce petition.  A divorce petition lets the court know what you are asking for in your divorce.  The petition can be detailed or it can contain only the basic required information (more will be discussed on this later).  A petition is filed in the county where either you or your spouse has lived in for at least 90 consecutive days before the date the petition is filed.  This is a fairly strict rule so you will want to make sure the count is correct.   In fact, you are required to tell the court in the divorce petition that either you or your spouse has lived in the county for at least 90 days.  If you are wrong, your spouse can ask the court to move the case to the correct county and the court will usually do this.  This just leads to delay and you typically gain nothing by doing this.

                At a minimum your divorce petition should generally state the following:

·                     you and your spouse’s names

·                     your children’s initials and birth year

·                     your county of residence

·                     the type of custody you want for your child(ren) (more on this later)

·                     that you want child support.

            ·                     your desire for alimony for yourself or for your spouse (meaning no alimony for your spouse)

·                     how you want the assets divided

·                     how you want the debt divided

·                     who should be responsible for medical insurance if there are children

·                     any other special provisions that are unique to your situation

                When your petition is complete you file it with the district court in the county where you or your spouse lives (if you live in different counties).  You will need to travel to the court and file it in person.  The court clerks at the counters tend to be helpful if you are filing it yourself.  If you use a lawyer, whey will file it online.  The address for your district court can be found at http://www.utcourts.gov/directory/.  You will want to bring 2 copies of each document you file and ask the court clerk to file stamp your copies, which you will take with you.