OUTLINE OF
GENERAL DIVORCE PROCESS
This outline has been prepared to provide general information about the divorce process and address some of the parties common concerns and questions.
Every divorcing couple has their own special set of circumstances which may fall within many of the exceptions to the general criteria outlined here.
THE DIVORCE CONCEPT
Utah is an equitable distribution state as opposed to a community property state. That means the assets, debts and income that have been generated during the marriage are to be equitably divided between the divorcing couple. Equitably does not necessarily mean equally.
If the parties are unable to settle their case and it goes to trial, a judge is supposed to treat each party fairly in dividing the assets, debts and distributing the income. What is considered fair to one party may not be considered fair by the other. People will frequently enter the mediation process having heard horror stories about how badly someone else was treated in their divorce. Most of these stories are distorted. In my opinion, a judge will never knowingly make a decision that in her/his opinion is not fair. Since divorce litigation is basically a zero sum process, that is one person's gain will be experienced by the other person as a loss, (whoever gets the most widgets wins) one party will generally always leave the end of a trial feeling like a loser.
THE DIVORCE PROCESS
A divorce begins with the filing of a complaint. This document notifies the Court and the other spouse, when served, that a divorce proceeding has been initiated. It also outlines, either in general terms or very specific terms what is being requested in the divorce, such as child custody, support, property division, etc.
The other spouse must receive a copy of this complaint with a summons. The summons informs the spouse of a 20-day time period to respond to the complaint. Failure to respond may result in a default. This means the spouse may be prevented from contesting any part of the divorce.
The summons and complaint can be served to the other spouse by a process server or by that spouse or his/her attorney signing an acceptance of service. The initiating spouse cannot personally deliver the summons and complaint to the other spouse to accomplish legal service.
The initiating spouse is referred to as the petitioner. The other spouse is referred to as the respondent.
Temporary orders are also called an Order to Show Cause. Either party has the right to ask the Court to make temporary orders stating, for example, who stays in the house, who is responsible for the children, who pays which bills and restraining inappropriate conduct. The temporary order sets out the ground rules that each will have to follow until the final divorce agreement is entered.
A party does not have to request a temporary order. Very often the parties, on their own, or with help of their lawyers, or through mediation can agree on interim living arrangements while the divorce is progressing.
You should also understand that the temporary order is just that. It will not control the terms of final orders that will eventually be entered.
Within 20 days after service of a summons, the respondent should file opposing papers. Sometimes this consists of a simple response just admitting or denying the requests in the complaint. This is called an answer. Other times the answer can be joined with a counterclaim if the respondent wants to assert his/her own requests. If a counterclaim is filed, then the petitioner must respond to that with a pleading called a reply.
Each spouse is entitled to information from the other about the case. The legal procedure for obtaining that information is called discovery. This may be a simple process or consume a great deal of time and money depending on the amount of information being requested and the party's willingness to cooperate.
Sometimes discovery is not required. If parties are comfortable with their knowledge about the nature, amount and value of the marital assets, then discovery will not be necessary. When discovery is necessary, it can occur in one or more ways.
Discovery may be conducted informally. This is often more efficient and always less expensive if lawyers will cooperate in the exchange of documents and information.
A list of questions known as Interrogatories, requiring a formal written answer to each question may be sent. A Request for Production, requires the other side to produce documents that may be material. A Deposition is an oral examination under oath in front of a Court reporter who transcribes all that is said. Depositions are usually held at one of the lawyer's offices.
In judicial districts (areas) where there are Commissioners, the, parties will be required to attend a pre-trial conference with the Commissioner. If judicial districts have no Commissioners, judges will often require pre-trial conferences. The Commissioner will make recommendations about issues in dispute and how he/she feels they should be settled. These recommendations are just that, only recommendations. They are not binding on either side unless specifically agreed to. If an agreement can be reached at the pre-trial conference, then the divorce can be concluded there and at that time.
Pre-trial conferences with judges are generally conducted to identify which issues are going to be tried and agree on the date and length of trial.
If the parties cannot settle the case, it will go to trial. At trial each party tells their story to the judge. It is told through the parties' testimony, the testimony of other witnesses and documents called exhibits.
Sometimes, a trial does not end the case. Each party may, within a 30-day time period, appeal to a higher Court. An appeal adds more time and expense to the divorce process.
That depends. In some instances there may be a tactical advantage in filing first but in most instances it doesn't matter.
Before knowing what the issues will be and what might happen under the law and facts of the case, no one wants to take the chance of asking for too little. So people tend to ask for more than they really expect. Like when you read in the newspaper that someone has filed a â$10 million dollar lawsuitâ what is demanded in the complaint usually has little real meaning.
Most cases are settled before trial.
Until your divorce is final, you are still considered a married person. Even though a temporary order has been entered, this does not create a âlegal separationâ. As a practical matter, most judges will not be concerned with dating while the divorce is pending but dating someone else may anger your spouse and impede settlement. It may also complicate your chances of success in obtaining custody of children if there is a dispute about custody. Most important, however, is the likely emotional impact on children. You might consider some professional advice about how much your children should know about your love life.
There is no way of really predicting. If you have children, both you and your spouse must first attend a class to assist in avoiding problems relating to your children. It will also depend on whether you are able to settle your case or if it has to go to trial. Generally speaking, a divorce that is settled can be obtained shortly after the settlement papers are signed. Cases that are in dispute will depend on schedules of the lawyers, the parties, the Court, cooperation of witnesses, the speed of appraisers or home evaluation experts as well as the overall complexity of the case.
If there are minor children in the divorce, the parents are required to attend a divorce education class before the divorce can be finalized. If there are no minor children, there is a 90 day waiting period after a divorce is filed, before it can be granted. This waiting period can be waived by the judge for good cause. The parties can agree to, or the Court may require, that the divorce not become final when it is granted and the additional waiting period before it does become final may be as long as six months.
Whether the issues in the divorce are settled by the parties or decided by a judge, some things can be changed after the divorce. Usually, child support, alimony, child custody and parent-time can be modified, but only if one party can show that there has been a substantial change in circumstances. Grounds to change support may arise from a loss or increase in income for one or the other of the parties. Changes in custody or visitation may be appropriate when the needs of the children change substantially or parenting duties of the custodial parent become seriously deficient.
A party wanting a modification must first file a Petition for Modification and the steps for it follow much the same path as an original divorce complaint.
Some orders are not modifiable. Usually the division of property is not subject to future changes.
If either party disobeys an order that the Court makes in the divorce, or fails to honor any part of a settlement agreement, there are ways to enforce those orders. Examples of disobedience of an order are failure to pay support, failure to turn over property awarded and refusal to allow Court parent-time.
Child support orders may have an associated order requiring the spouse's employer to withhold the support directly from the paychecks. Other orders to pay money can be enforced by garnishing wages or bank accounts or having the sheriff seize and sell property. Other orders can usually be enforced by contempt of Court proceedings. Papers are prepared and served on the disobedient person, ordering that person to appear in Court. This is called an Order to Show Cause In Re Contempt. After a hearing, the judge may put the person in jail or impose a fine as necessary to make the person obey the order.
 RECONCILIATION
Sometime divorce seems the only solution to problems in a marriage; often it is not. Sometimes it takes the start of a divorce to motivate people to make an effort to save a once cherished relationship. Parties should be encouraged not to feel embarrassed to change their mind about divorce and work on a reconciliation. Efforts at reconciliation however, require the consent of both parties. If a divorce has been started, either party will always be able to insist that it be completed.
 COUNSELING
Counseling may assist in saving your marriage. Even if it does not, counseling has many other possible benefits. These include:
CHILDREN
Ordinarily parents make decisions about their children together. When parents divorce, the hostility sometimes causes them to disagree on what is best for the children. In addition, divorce presents a whole new set of child-rearing challenges. Even the best parents may find it useful to consult a child development expert for help in meeting these challenges.
Mediation provides a fertile arena for reaching decisions with as little as possible acrimony. In mediation, parents will always agree that they would like to have their divorce cause as little detrimental impact on the children as possible. What they sometimes lose sight of is that only they and the other parent can make that happen.
Unless the parties agree or the Court awards joint legal or joint physical custody, the remaining label for a parenting role is sole custody. This means one parent is designated as the only legal custodian of the children and the other parent is usually only awarded parent-time rights. The non-custodial parent may be granted other specific rights involving the children such as the right to be informed of or participate in major events or decisions affecting the children, to be informed of special extracurricular activities and have access to school and medical records. The non-custodial parent may also be allowed to personally provide the day-care duties for the children when it is possible and practicable.
This means that both parents are designated as the legal custodians of the children. One parent is usually designated as the primary caretaker of the children and the other parent is usually designated as the parent having parent-time rights. The primary difference between this and sole custody is the term itself, which signifies that each parent is going to be substantially involved in the children's lives. With joint legal custody, the law also provides that the parents will exchange information concerning the health, education and welfare of the child and where possible, confer before making decisions concerning any of these areas.
This means that each parent will have the children in their actual physical custody for periods of time that exceed typical parent-time rights. Very often this involves a situation where each parent has the children about 50% of the time. By statutory definition it is considered joint physical custody if each parent has at least 111 overnights per year with the children.
Very generally, the standard parent-time rights involve every other weekend, alternating major holidays and extended summer time visits, usually four weeks.
If either parent makes allegations of child abuse about the other that has not previously been reported to appropriate law enforcement or state authorities, then it is the absolute duty of a mediator, to report this to the Division of Social Services or the police. There are no exceptions to this reporting duty.
When parents can't agree on issues of custody, the Court may order an independent evaluation by a social worker or mental health professional. The evaluation may include psychological testing of and interviews with the parents, the children, their teachers, day care providers, neighbors, doctors and anyone else who may have significant information involving the children. The evaluator usually makes an oral recommendation to the parties or their counsel and if they are still unable to reach agreement, a written report and recommendation will be provided to the judge.
Sometimes during this process, the Court may appoint a guardian ad litem to represent the children or look out for their interests during the dispute.
When a custody evaluator is appointed, that professional is required by statute and Court rule to consider:
CHILD SUPPORT
The amount of child support paid depends on the average monthly gross income of both parents. Support guidelines and charts have been established by the legislature to assist in the calculation of the amount.
The amount of child support established by the guidelines is reduced or increased by costs of medical insurance for the children depending on who is providing the coverage and incurring the cost.
The divorce must assign responsibility as to which parent will pay for medical or dental expenses that are not covered by insurance, either because of co-pays, deductibles or non-covered procedures. Usually, each parent will be required to pay half.
In addition to child support, child care costs that are incurred to permit a parent to work are generally shared equally. The parent who initially incurs this expense has the responsibility for providing the other parent with adequate documentation as to the dates, times and amount of child care costs that are actually provided during work or school hours. The other parent then has the responsibility of paying his or her share promptly.
TAX EXEMPTIONS
There is no special rule about which parent will be entitled to claim the children as tax exemptions. If the divorce papers are silent about this issue, then the custodial parent will be entitled to the exemptions. If the issue is raised, a Judge will ordinarily consider which parent will receive the greatest benefit from the exemption or the exemptions may be split or alternated between the parents.
ALIMONY
Alimony, when appropriate, is very difficult to predict with any certainty. The general criteria are that alimony should be paid when one spouse has the need to maintain an established lifestyle and the other spouse has the ability to assist financially. Alimony will not be awarded for a period longer than the length of the marriage. It will also terminate on the death of either party or when the receiving spouse remarries or cohabits.
Alimony is tax deductible by the person paying and the person receiving will have to pay taxes on the amount received. This does not apply to child support.
If parties have questions concerning the tax implications for alimony or the dependency deductions for children, they should be encouraged to speak with an accountant. The statutory factors the Judge is required to take into consideration when determining alimony include:
ASSET AND DEBT DIVISION
There is no easy answer as to what will happen when assets and debt division are part of the dispute. As a general theory and simple starting point, the assets and debts are going to be divided equally. That is not to say that each spouse will have to pay 50% of the debts or that each will receive 50% of the assets. Often, one spouse will have a greater ability to pay debts and that spouse will become obligated to pay the greater share. When that occurs, that spouse will probably be awarded a larger percentage of the assets to make up for the larger debt obligation.
Disputes in the asset area often include:
RETIREMENT PLANS
There are two basic types of retirement plans (not counting IRA's). The defined benefit plan is established by the employer and all funding in the plan is at the direction of the employer. The benefits to be paid at the time of retirement will generally depend on the salary, age and number of years in employment of the person at the time of retirement. Since the specific amount is nearly always impossible to predict, this type of retirement plan is normally divided by the Woodward formula. (Woodward was a case decided by the Utah Supreme Court in 1983 adopting this formula for an approved method of dividing retirement plans when the present value cannot accurately be determined.)
The Woodward formula divides the number of years the person actually works before retiring into the number of years that benefits were accruing during the marriage to establish a percentage. This percentage is divided in half and each spouse gets their respective share. For instance, say a person started working at HAFB 20 years ago. Five years later that person marries. The divorce occurs after 15 years. The person continues to work after the divorce for another 10 years before retiring. Therefore, the number of years the person worked at retirement (30) is divided into the number of years married (15). This is 50%. The other spouse will get ½ of 50% or 25% of the retirement. The retiring spouse will get 75%. At the time of the divorce, the employer is notified of the retirement division through a document typically referred as a QDRO. When the spouse actually retires, the retirement plan administrator will then issue two checks, one each for the respective shares.
Some plans provide for a survivor annuity, some do not. If there is a survivor annuity available, then retirement benefits would still be paid to the surviving spouse after the death of the spouse who worked and earned the retirement benefits. When a survivor annuity is elected, the overall retirement benefit is reduced. Sometimes this reduction is assigned exclusively to the survivor who requested the annuity.
The other type of plan is a defined contribution plan. Under this plan the employer or employee or both, contribute specific amounts to the plan during the employment relationship. The value of these plans can be determined about any time. In a divorce, all amounts earned during the marriage will be considered in the overall division of assets.
IRA's are a form of a retirement plan but are not connected to the employment relationship. They are a type of tax deferred savings. They will generally be divided much like a savings account.
ATTORNEY FEES AND COSTS
A Court may order one spouse to contribute to the attorney fees of the other. This will typically occur if the Court feels that one spouse has caused the other to unnecessarily incur some attorney fees or if after the division of assets, debts and income, one spouse has a greater ability to assist with the other spouse's fees.