How to Divorce -- Child Support

Child support is always a critical issue.  In Utah, child support is required by law and cannot be waived by the parents.  The policy behind this is that a parent should be financially responsible for their child and that the support is for the child so a parent cannot waive the child support. Child support issues can also affect a custody battle because Utah uses one formula for calculating child support when one party has primary custody and another formula (based on the number of overnights the child spends with each parent) when the parties share joint custody of a child. 

The Utah Courts provide a child support calculator that allows a party to plug in the gross monthly incomes of the parties and the number of children to get an amount for when a party has sole custody. To calculate joint custody, the parties simply add the number of overnights that the child will spend at each parent's residence.The child support worksheet must be filed with the Court.  The calculator can be found at http://www.utcourts.gov/childsupport/calculator.

 

How to Divorce

The first step in determining how to divorce is whether the divorce will be contested or uncontested.  An uncontested divorce is where the parties have agreed upon everything and need the court to enter an order based on the parties' agreement.  In a contested divorce, there is disagreement between the parties and each party should have an attorney to represent them.  In Utah, a divorce starts with the filing of a petition and serving the other party.  Service is generally handled by the constable for a fee ($40-$80).  Once the party is served, they will have 20 days to file an answer and a counter petition for divorce.  The parties are required to exchange financial information in a Financial Declaration and then attend mediation.  If the issues are not resolved in mediation, the parties will proceed to trial.  Depending on the issues involved, this may require depositions, obtaining experts, or a child custody evaluation.  A trial is then held and the judge makes a ruling and entered a decree of divorce.  Each party will have the opportunity to appeal the judge's ruling.   

Communicate in Writing

When you go to court, a "he said she said" argument is always a roll of the dice.  Always communicate in writing.  If there is a conversation, put the contents in writing after the fact and send it to your ex-spouse.  Even if they later disagree with the contents of the writing, you will be able to point out what your understanding was at the time of the writing.  That is better evidence than "he said she said."

Preparing Yourself

If you have not yet, it is time to get a living will.  Don't leave the tough decisions to a loved one who may regret making a decision the rest of their lives.  Make sure your directives are clear and understood when it comes to your health care.

When to Negotiate.

The toughest part about a divorce with children is that you are forced to negotiate with your spouse on highly important and sensitive matters.  The standard practice of offer and counter offer creates its own set of problems as both sides feel like they are giving up too much and being taken advantage of.  Even though you no longer want to be with your spouse, you do want to be with your children.  Negotiation needs to start with finding out what is important to the other party and why its important.  Mediation often helps this problem out, but that is usually after litigation positions have been taken.  It is best to try and negotiate with a lawyer present who does not represent either party, but represents the process.  This should be done prior to filing divorce papers and positions are taken.   

What does winning a divorce mean?

Can you really win a divorce?  This all depends on your definition of "winning".  On financial matters and the division of personal property there can definitely be victories if those are your only issues.  If there are children, however, those victories can lose the war if one spouse become bitter over losing personal items or paying more money.  This bitterness can creep into how the parents deal with each other post-divorce and their attitudes in front of the children.  Thus, you can win the battle but lose the war.  Of course, you must stand up for what you want and believe you are entitled to.  That goes without saying.  It is when you fail to compromise at all and positions become hardened and litigious that the whole process could be a colossal failure for your children.  You simply got to find the right balance while protecting your rights.

Leaving it all behind

We do leave it all behind when we go.  That is why we should be careful to consider what we leave behind and how it may influence family relationships.  To make sure that your heirs do not feel slighted, you should sit down and have an honest conversation with why your estate plan is the way it is.  Obviously, this takes courage and planning, but it will work to your family's benefit in the long run.