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.