This handbook contains general information on domestic law in Utah. It cannot provide
legal advice on your specific case, and it cannot replace the assistance of a lawyer. If
you are seeking legal advice, we encourage you to contact Utah Legal Services at 1-
800-662-4245 toll free outside the Salt Lake area, local at (801) 328-8891, or in Salt
Lake County call the Legal Aid Society of Salt Lake at (801) 328-8849, or contact a
private attorney for more information and advice.
This project was supported by a grant awarded by the Violence Against Women Grants
Office. Points of view in this document are those of the author and do not necessarily
represent the official position or policies of the U. S. Department of Justice.
* Note from the staff and management at Utah Legal Services:
This handbook is dedicated to Waine Riches, who is the primary author and chief
editor of the Utah Legal Services Domestic Relations Manual, an extensive review of
Utah domestic law. Waine's tireless work continues to benefit thousands of low-income
Utahns each year.
The Domestic Relations Manual is available for purchase by contacting Utah Legal
Services at 800-662-4245 or local to the Salt Lake valley, (801) 328-8891.
RELATIONSHIP:
In Utah you can't marry your first cousin or anyone else more closely
related to you than that, but your children can marry your first cousin's children.
However, if you and your potential spouse are over the age of 65, or if you are over the
age of 55 and you get a district court to find that you are unable to reproduce, then you
can marry your first cousin.
A LICENSE:
You need a license to be married. You must get one within 30 days of
your wedding date from any county clerk.
A CEREMONY:
A minister, rabbi, priest, Native American spiritual advisor, the
governor, a mayor, a judge or commissioner and some members of the legislature can
marry you. If you and your spouse believed that the person marrying you had the
authority and your marriage is consummated, which means you and your spouse have
had sexual relations, your marriage will be valid.If you were married in a ceremonial
marriage somewhere else, so long as you met the requirements of that state, Utah considers
you married. But if you married an aunt or uncle or someone more closely related than that,
or you were under the age of 14, or you or your spouse were married to someone else first,
or you married someone of the same gender, in each of these cases your marriage isn't
considered valid by Utah.
Even if you never had a wedding ceremony, the courts can declare you husband and
wife if certain criteria are met. These include:
You both were competent and capable of giving consent.
You were legally capable of being married.
You cohabited together, meaning, you lived together as if you were married,
including having a sexual relationship.
You took on obligations and assumed duties together.
You "held yourself out" as husband and wife and people you knew believed you
were married.
The court can declare you married only if you file your request for a common law
marriage during your relationship, or within one year after the end of your relationship.
The most common reasons for filing for a common law marriage are either to get the
court's assistance in dividing property and establishing custody in a divorce or
annulment, or establishing survivor benefits or other welfare benefits a surviving
spouses may be entitled to after a partner's death.
WHO CAN ADOPT?
Any married adult who has the permission of his or her spouse, any single person not
cohabiting with another person can adopt, so long as they are
18 years of age and ten years older than the person being
adopted. If a married couple is adopting, only one of them must
be ten years older. A married person must have the consent of
his or her spouse in order to adopt.
In every case, the best interests of the child will be considered by the court.
WHERE TO GO TO ADOPT?
A petition for adoption is filed with the clerk of the
district court, unless there has been an action in juvenile court terminating a parent's
rights, in which case the petition can be filed in the juvenile court.
WHO MUST GET NOTICE?
Notice must be given at least 30 days before the adoption
hearing. Notice must be given to any person or institution whose consent or
relinquishment is required (see below), unless that right has been terminated.
Also, notice must be given to:
anyone who filed a notice with the state's department of vital statistics that they
have filed a paternity action on the child;
a legally appointed guardian or custodian;
the spouse of the petitioner;
the spouse of the adoptee;
a father listed on the birth certificate;
a person who lives with the child and acts like the child's father;
a person married to the mother at the time she consents to the adoption.
WHO MUST CONSENT?
the person being adopted if he or she is over 12 and mentally competent;
the parents of a child under 18 conceived or born during marriage;
the mother of the person being adopted who was born outside marriage;
a man whom the courts have ruled is the father;
a father who filed a voluntary declaration of paternity prior to the mother's
execution of consent;
an unmarried father of a child placed with adoptive parents more than six months
after birth who has developed a strong relationship with the child and has taken
some responsibility for the child, or who lived with the child for 6 months within
the child's first year and right before the child was placed with adoptive parents
who acted as though the child was his own;
the adoption agency;
an unmarried father of a child under six months of age when placed with
adoptive parents who shows his commitment to the child prior to the mother
giving consent. He can show that commitment by:
filing for paternity
filing an affidavit agreeing to take care of the child
notifying vital statistics that he's filed for paternity
paying part of pregnancy and birth expenses.
"Consent" can be given before the judge, or by an adoption agency. A consent is
effective once signed and cannot be revoked. A minor parent has the right to consent
as any adult does. A minor cannot revoke consent upon turning 18. The birth mother
cannot consent until the child is at least 24 hours old.
Consent is not required when:
a person's parental rights have been terminated
an unmarried father has not established his right to consent or,
a parent is deceased If a consent from the biological father is not obtained, a
certificate from the Department of Health must be filed with the court stating that a
diligent search for the filing of paternity was performed and that no filing could be found.
Utah State Human Services Department Division of Child and Family
Services (DCFS)
The court may order DCFS investigate and report to the court. A motion to have this
done or to waive this portion of the proceeding must be filed 60 or more days prior to
the hearing.
CONTESTED HEARINGS:
Anyone who wishes to contest the adoption must file a motion stating their concerns
within 30 days of being served notice.
AGREEMENT OF THOSE ADOPTING:
The adopting parents must appear before the court and execute an agreement stating
that they will act in all regards as the parent of the child and take on all the
responsibilities that go with that.
DECREE OF ADOPTION:
Once the child has lived in the home of the adoptive parent for at least six months, or in
the home of a natural parent and adoptive stepparent for one year, the court can enter
a decree of adoption. The court will hold a hearing and ask each person questions.
Consenting parties will sign before the Judge. The adopting parents will sign their
agreement to adopt.
If the court finds that it is in the best interests of the child, the final decree will be
entered at the hearing. The final decree removes the rights and obligations of the
natural parent(s), and places these rights and obligations on the adoptive parents.
SEALING THE RECORDS:
Adoption records are sealed by the court and cannot be inspected or copied without
permission of the court. Limited access to health information can be obtained.
Utah has an adoption registry that contains identifying information of an adopted child
and their natural parent. A child or parent must voluntarily place their information in the
registry. Brothers and sisters of adopted children who voluntarily register can receive
information about each other.
A guardianship is a trust relationship in which one person, called the "guardian" acts for
someone else, called the "ward", where the ward is unable to take care of her own
affairs. The relationship is similar to that between a parent and a minor child.
A conservatorship of the ward's estate is also often established which allows the
guardian to manage the ward's property and finances.
A guardian of a minor is the equal of a natural parent except that a guardian is not
liable for acts of the ward and doesn't have to use his or her own money to provide for
the ward.
Typical responsibilities of a guardian include:
taking care of the ward's personal effects and protecting the ward's property.
receiving funds for the support and care of the ward.
authorizing medical treatment, consenting to marriage or adoption, and seeing to
the education and social activities of the ward.
reporting to the courts on the status of the ward.
A Guardianship can be established THREE ways:
1. Testamentary Appointment:
This means that the parents of the minor included
a statement in their will that if both of them were to die, someone they named would be
the guardian of their child. The guardian has to accept this appointment and give notice
to the minor of that acceptance. Any minor 14 years or older can file an objection to the
appointment with the court within 30 days of receiving the notice. The court may still
order the guardianship if it is in the child's best interest. Rather than putting their
wishes in a will, parents can also prepare paperwork that is signed by them and states their
wishes. After their death, the paperwork must be filed in court along with a statement by
the guardian that he or she accepts responsibility for the children along with proof of the
parents' deaths.
2. Appointment by the School Board:
A local school board can adopt a policy so
that it can appoint a responsible adult to act as guardian if the child's parent doesn't
live in the state. However, at this writing, no district has adopted such a policy, and all
school districts require an actual custody order or guardianship established by the
courts before they will allow a student to register for school.
3. Appointment by the Courts:
A guardian appointed by will or written instrument
is preferred, but if there is none, the court can appoint a guardian. A petition is filed
with the court, notice is given to all interested parties and the court holds a hearing.
The parental rights of one or both parents, depending on the situations, must be
terminated or suspended and if the court determines it is in the child's best interests, a
guardian is appointed.
If there is a question on what is in the child's best interests, the court can appoint a
lawyer, called a guardian ad litem to represent the child in the court action.Once the court
establishes a guardianship, the guardian must give notice of acceptance of the new relationship.
Termination of a Guardianship:
A guardianship is terminated when the guardian dies
or makes a motion to the court to be released as guardian. The court will appoint a new
guardian before releasing the original guardian. The guardianship also ends upon the
death, marriage, emancipation, adoption or 18th birthday of the ward.
A guardianship over an adult who is unable to understand his or her rights, duties and
responsibilities is obtained through the courts in much the same way as described
above. If a petition for guardianship is filed over an adult, that adult, called the "proposed
ward," must be represented by an attorney.
The petitioner or petitioner's attorney often
must arrange for the attorney for the proposed ward. The court will determine whether a
guardianship is needed, and whether the person named in the petition is the best
person to be the guardian.
The law prefers that a guardianship be limited to that control which
is absolutely necessary, but a guardian can be given the power to decide where an adult ward
lives, what food the ward eats and what medical care is needed. A guardianship will often
include a conservatorship, but an action for conservatorship can be filed on its own.
A conservatorship is much like a guardianship, but the conservator controls the ward's
property, not the ward's personal choices.
A power of attorney is like a voluntary guardianship or conservatorship. The person
giving the power, called the principal, agrees to the relationship with the person
receiving the power, called the attorney in fact. The attorney in fact acts as the
principal's agent. The most typical use of a power of attorney is in financial matters.
The agent given a power of attorney over financial matters has no power over the
personal affairs of the principal. A power of attorney can be revoked at any time by the
principal, so long as the principal is competent.
A power of attorney can be limited to specific transactions or can grant full power over
all financial and legal affairs. When the principal becomes incompetent, the agent can no
longer act, unless a durable power of attorney is used. Durable Power of Attorney is created
by including words that say the power of attorney will continue to be effective even if the
principal becomes incompetent. A durable power of attorney continues in effect as long as you
live, even if you become incompetent, or can take effect only if you become incompetent. But
so long as you stay competent, you can revoke a power of attorney.
Special Power of Attorney can be used to appoint an agent to make medical
treatment decisions for you in the event you become unable to communicate those
decisions. A similar document, called a living will specifies the type of treatment you
want or do not want in the event that you become terminally ill or permanently
unconscious.
Power of Attorney Transferring Parental Rights can be used to delegate your
parental powers to someone else for a period of six months. While some entities, such
as doctor's offices and hospitals, might be comfortable with this power of attorney,
schools are not and require an actual guardianship or custody order in almost all
circumstances.
SECTION TWO:Domsetic Violence and Protection for Victims of Abuse
Go to Resources and Referrals on Domestic Matters section of this handbook for phone numbers of groups who can provide further
help to victims of domestic violence.
A protective order is a legal document
that orders an abuser, the respondent, not to contact, abuse or harass in any way the
victim of abuse who files a protective order, called the petitioner.
A protective order can also remove an abuser from a home, and establish temporary
orders on custody, child support and visitation.
A protective order is a civil order, it is not recorded on a criminal record. However,
violation of certain terms of an order are criminal offense and will result in the arrest of
the respondent.
Who can file a protective order?
Two requirements must be met for you to file for a protective order. They are:
1) You must be a cohabitant; and
2) You must be a victim of domestic violence.
Step One:
Are you a cohabitant?
Are you the age of 16 or over? If yes, continue; if not, but you have been married,
continue; but if you are under the age of 16 and have not been married, you can't file
on your own. (Get help from an adult or a victim advocate!)
Do you have one of the following relationships with the respondent (the person harassing and
abusing you):
You were or are married to the respondent, Or You are related by blood or
marriage, OR You have children together, Respondent is the biological parent of your unborn
child, OR You were or are living in the same residence.
If so, you are a cohabitant, go on to Step Two.
Step Two:
Are you a victim of domestic violence? Has the Respondent attempted or
threatened physical harm to you,OR placed you in immediate fear of physical harm,
physically assaulted you,Or sexually assaulted you.
Examples of physical or sexual assault might include hitting, punching, pushing,
shoving, choking, kicking, threatening with a weapon, forcible rape or sodomy.
If you are not sure whether you qualify for a protective order, or you have more
questions than this handbook answers, use the referral list in the back of the handbook
to contact Utah Legal Services, The Legal Aid Society of Salt Lake or a victim'sadvocate
statewide and get more information.
If you know of or suspect abuse to a child, report the abuse to the Division of Child and
Family Services (DCFS) and they will investigate. If you fear for a child's safety and you
have custody or guardianship of that child, you can file a protective order on behalf of
the child.
This filing is most appropriate in the juvenile court if DCFS has already filed an action
there. Otherwise this type of protective order can be obtained in either the juvenile or
district court. Note, however, that if you are a parent of the child and the abuser is the
other parent, then you must file your action in district court.
If abuse is suspected, a representative for the child, called a guardian ad litem can be
appointed. This is an attorney appointed by the court to represent the best interest of
the children involved. Most often this attorney will conduct an investigation into the
allegations and will report back to the court with recommendations of what should
happen. These reports carry a lot of weight with the court and are often adopted into orders.
To file for a protective order, go to the district courthouse in the county that you are
residing in or where the abuse took place. The clerks will help you fill out the forms.
There is no fee for filing or service of a protective order in Utah.
The form you fill out is called the petition. Include a good description of what happened
and why you are in fear of further abuse. Also be sure to ask for any legal relief you
might need from the court such as child or spousal support.
Once the judge reviews your petition, she can sign the initial order, called an ex parte
order. A sheriff or police officer must serve these forms on the respondent. At that
point, the initial ex parte order is in effect and can be enforced by the police. This initial
order remains in effect until your protective order hearing. This hearing will be set up
within twenty days. If you initiated this order on behalf of a child, you MUST appear at
this hearing if you want the order of protection to continue. At the hearing, both sides
have a chance to talk to the judge.
For assistance with your hearing, you should contact:
Utah Legal Services at
1-800-662-4245 statewide,
or in the Salt Lake valley, call 328-8891.
In Salt Lake County, you can also contact
The Legal Aid Society at 328-8849.
If you don't meet the criteria for assistance from Utah Legal Services, you should
consider hiring an attorney, although it is possible to represent yourself at protective
order hearings.
At the hearing the judge will decide whether to dismiss the protective order or to
continue it for a period of at least three years, and will decide what the exact provisions
of the order will be. There are two portions of a protective order, a criminal section and
a civil section.
The criminal section orders that the abuser not contact, harass, annoy or abuse you.
Violation of these portions of the order constitute a crime and the respondent should be
arrested immediately for violating this part of the order. The provisions of this order last
at least three years, or longer if no one asks the court to remove it.
The civil section establishes custody, child support, visitation, and sometimes property
division and spousal support, although most judges feel that those decisions should be
made as part of a divorce action. Violation of the civil provisions must be brought back
in front of the judge who can hold the violator in contempt of court and impose civil
penalties. The provisions of this civil section last only for 150 days.
Once a final protective order is entered by the court, it too must be served on the
respondent. The initial ex parte order remains in effect until the new order is served.
Safety Planning
1. Pack a suitcase with toiletries, extra house and car keys, a change of clothing
for you and your children. Store all this with a friend or neighbor.
2. Have the following items in an easy to locate place: medicine, identification,
money, checkbook and savings book, birth certificates, Social Security numbers,
address book, protective order and other legal papers.
3. Know exactly where you will be going: family, friend, police or shelter.
4. If you don't have time to gather these items and you are going to be hurt,
call 911and get out. Shelters have emergency provisions.
5. Contact a victim advocate to discuss your plans.
SECTION THREE: Ending Domestic Relationships
The deciding factor in determining custody is the question, "What is in the best
interests of the children?" This is mainly determined by an examination of which parent
has been the children's primary caretaker.
The court will look at many factors to decide who was the primary caretaker, such as:
who gets the child up in the morning; who feeds the child breakfast; who gets the child
dressed; who gets the child ready for school; who takes the child to school; who picks
the child up from school; who helps the child with homework; who watches the child
play with friends; who prepares and eats meals with the child; who reads to the child;
who gets the child ready for bed; who makes decisions on medical care; who
participates in activities with the child...and many other factors.
Note that stepparents are not responsible for their stepchildren following a divorce,
unless they have formally adopted those children.
Custody Evaluations:
If you cannot agree on custody, the court will likely order that an evaluation be
performed. This is an expensive exercise, with the cost often split by the parties.
Cooperate fully with the evaluator, as the evaluator's decision will likely be adopted by
the judge in the case.
Types of Custody:
There are two legal concepts that make up any custody order:
(1) Legal custody
governs who makes all of the important decisions concerning the children,
(2) Physical custody
governs with whom the children will reside.
Sole Legal and Sole Physical custody:
With sole legal and physical custody the children live with one parent and that parent
makes all the decisions; the other parent gets visitation and pays child support.
Joint Legal and Joint Physical custody:
In this situation both parents have a right to make the important decisions regarding the
kids, like education, religion and nonemergency medical care. Because both parents
are involved in these decisions, this type of arrangement only works where the parties
get along very well, and can communicate with each other often. The parents may want
to agree on a parenting plan to outline how each will be involved in the parenting of the
children. However, in the least, the parents must decide how many over night stays the
children will spend in each home during the year. As of July 1, 2000, the children must
spend more than 110 nights each year in each home to call the physical custody
arrangement "Joint Physical Custody." If the children reside in a home fewer than 111
nights, then the other parent has sole physical custody.
Joint Legal and Sole Physical custody:
This arrangement allows both parents to be involved in the decisions affecting the
children's lives, but one parent has the children living with her more than 255 nights out
of the year and the other parent has regular visitation.
Split custody:
In this situation, involving more than one child, one or more children live with one
parent and one or more children live with the other parent. This is advised only in rare
circumstances, as it is rare that this would be in the children's best interests. A specific
legal and physical custody award must then be made for each of the children in the
separate households.
Again it is best to have a visitation schedule that both parents agree to, and one that
works best with their schedules. If this cannot be done, the state has implemented a
minimum visitation guideline which will be applied in virtually every case. Standard
visitation includes one weekday evening and alternating weekends and holidays. The
visitation for children under the age of five is different, generally more frequent shorter
visits.
If there is some fear of abuse or neglect, parties can request supervised visitation and
specify who will be present during visitation. The courts do not like to restrict visitation
so parties must provide a very good reason.
Allegations of Child Abuse:
These allegations are very serious. Unfounded claims are harmful to children and
obscure the real issues. If you fear abuse, you should report your concerns to the
Division of Child and Family Services. If there are allegations of abuse, the court
should appoint a guardian ad litem to represent your children.
Some Tips on Your Conduct with your Child:
Put your child's welfare first. Never use your children as a weapon against your
spouse or ex-spouse. This harms your child, and if the judge finds out, could hurt
your case.
Be sure your children have ample time with the other parent. They need it.
Visitation should usually NOT take place in the children's home.
Don't bring your children to your lawyer's office, or to court.
Be flexible with the visitation schedule, but do your best to be on time for
visitation, and give plenty of notice if you cannot be.
Don't use your children to spy on the other parent. Don't ask for reports about
the other parent from the children.
Don't listen in on phone calls with the other parent.
Assure your children they are not to blame for the breakup and are not being
rejected or abandoned by either parent.
If you are a victim of domestic violence, both you and your children need the help and
support of professionals. Talk to a victim advocate about what services and support are
available to you and your children.
Child Support:
There is very little to fight about when it comes to child support. Utah has adopted
statutory guidelines. Both parties must supply evidence of their gross monthly income
to the court, and complete the appropriate child support work sheet. There are different
work sheets for sole custody, joint custody, and split custody. The process is somewhat
similar to doing your income taxes.
Even if the parties agree to something less than the standard minimum guidelines, the
judge will not allow it unless there are very good reasons.
If someone is not employed, the court can impute income to that person. For example:
If a party was making $15 an hour and left her job, then the court will probably
impute an income of $15 per hour for 40 hours per week to that person.
If the person has not had a job, but has the ability to work (meaning he or she is
not disabled and probably worked at some point during the marriage) then the
court can impute minimum wage or what that person earned when he or she was
working.
Child support is unique in these ways:
1) There is an eight year statute of limitations
2) You cannot bankrupt out of your child support obligation, and,
3) Almost all sources of income can be garnished up to 50% to collect for child
support, with the exception of Supplemental Security Income (SSI).
If the children are receiving SSI for themselves, or if they are receiving money because
of a parent's disability, the court can order that this money is sufficient for child support
and that child support not be paid directly by a parent.
The Divorce Education Class:
Both parents of a minor child must attend this class before their divorce will be granted.
The class focuses on the effects a divorce has on children. If one party refuses to
attend, the court will hold that party in contempt. If the refusal of a party is delaying the
divorce, or if one party lives out of state, their requirement to attend the class can be
waived by the court. However the court may not allow visitation with the children until
the class is attended.
90-Day Waiting Period:
If you don't have children under 18 years of age with the spouse you are divorcing, the
law requires a 90-day waiting period before the court can issue your divorce. This
requirement can usually be waived if the respondent signs an acceptance of service,
consent and waiver form agreeing to the waiver of the 90-day period, and in other
cases where good cause is shown.
Day Care:
Both parties should share equally the reasonable child care expenses of the custodial
parent. The parent incurring day care expenses should provide written verification of
the cost and identity of a child care provider to the other parent when the day care
provider is hired and upon the request of the other parent at any time after that. The
parent incurring day care expenses must notify the other parent of any changes within
30 days. If the parent incurring day care expenses fails to provide original notice as
stated above, the court may determine that the other parent is not obligated to pay.
Medical Insurance:
A parent may be required to maintain insurance for medical expenses for the benefit of
the minor children where available at a reasonable cost. Verification of coverage must
be provided to the other parent upon the initial enrollment and on January 2, each year
thereafter. Both parents share equally the out-of-pocket costs of the premium actually
paid, and all reasonable and necessary uninsured medical expenses. If a parent incurs
medical expenses, those expenses must be forwarded to the other parent within 30
days of their being incurred or the court may determine that the other parent is not
obligated to pay.
Taxes:
Whoever is allowed to declare the children on their tax return can receive thousands of
dollars in tax savings over the child's lifetime.
You may decide on a plan for tax deduction that best fits both of your situations.
Options include having one parent take the deduction in odd years, one in even years,
or allowing one parent to always get the deduction. If there is more than one child, each
parent can take the deduction on one or more children. Note, however, that a
noncustodial parent can claim the exemption only if that noncustodial parent is actually
paying child support in the amount ordered by the court and the custodial parent must
sign a form for the IRS allowing the noncustodial parent to take the deduction.
Whatever the order for tax deductions, it is recommended that you also include a
buyout clause which allows one parent to pay to the other parent what the other parent
would get if that other parent were to take the deduction. To determine this, the other
parent fills out the forms as if that other parent were taking the deduction but then does
the actual taxes without the deduction. The difference in taxes for the other parent, with
and without the deduction, is what the parent using the buyout clause pays to the other
parent.
Grandparent and Extended Family Visitation:
After the divorce, many parents are uncertain how much contact to allow between their
children and their ex-spouse's extended family. Even though you are divorcing, your
children will still be related to your ex-spouse's extended family by blood. Your guide
should always be the best interest of your children. If your children have a bond with
the extended family members, then continued contact is probably in your children's
best interest. Whatever you choose to do, the judge has authority to order continued
contact that is in a child's best interest. In addition, there is a special statute that allows
grandparents to petition the court for visitation of grandchildren if it is being denied.
Notice to Social Services:
If either parent has been or is receiving cash assistance public benefits (TANF/FEP),
Social Services must be notified if the parents divorce. Anyone receiving cash
assistance has signed over his or her right to child support. The State of Utah, through
the Attorney General's Office, will intervene in the court case as a party to the divorce.
If the AG's office feels the child support amount is not enough to protect the State's
interest (if it is below the minimum guidelines), the AG's office may step in and argue
against the amount of child support currently being collected..
Pensions: (including military and state benefits)
Anything paid into a pension plan during the marriage is marital property regardless of
who made the payments. If all other property has already been divided, the court will
split the pension equally between the parties. However, the court can off-set pension
benefits with other property, for example giving the equity in the house to one party and
the pension to the other. If each of the parties has a pension, the court may order that
they each receive their own pension.
If the person who doesn't pay into the pension plan is awarded a part of the pension as
a result of divorce, the parties must file a Qualified Domestic Relations Order (QDRO).
This is a document that goes to the pension company telling them to set aside the
nonpaying party's portion. If you are in this position, and a fair amount of money is
involved, you should hire an attorney to do this portion of the divorce. Otherwise, the
procedure is to write to the pension company and ask for their QDRO packet. Follow
the instructions carefully and complete the form, or follow the sample and create a
document that is as close as possible to what you think the pension plan administrator
wants. Then, take the document to the pension plan administrator for review. Once the
administrator tells you that the document will divide the pension in the way the order
provides, then, take it to the judge to sign.
Once the judge has signed, send a copy of the plan, signed by the judge, to the
pension plan administrator. It is at this point that the pension will be split. NOTE: If you
do not successfully complete this process, your share of the pension may not be
available when you need it for your retirement, and indeed, may be lost entirely.
Name Change:
You can change your name as part of your divorce. The party wishing to change his or
her name needs to include a paragraph indicating that their name is being changed.
We recommend that you include the full new name that will be used after the divorce.
Alimony:
An award of alimony typically depends on the length of the marriage, the need of the
party asking for alimony and the ability of the other person to pay. In Utah, the court
cannot award alimony to continue for a longer time than the marriage lasted. The
shorter the period of time that the parties were married, the less likely that alimony will
be awarded at all. As the length of time of the marriage increases, the court will be
more likely to award alimony, especially if one party has a strong ability to pay and the
other party has primarily worked taking care of the marital home and children.
The court may award rehabilitative alimony, that is alimony given only for a time period
while the receiving party obtains an education or job skills.
Restraining Order:
If a party feels that the other party to a divorce is harassing her, she may ask the court
to enter a restraining order and specify what she wants the other party to be restrained
from doing. A typical order might state: "John Doe should be restrained from bothering,
harassing, annoying, threatening or harming Jane Doe at any time or any place." Note:
Unlike the protective order discussed above, violation of a restraining order is not a
crime. Enforcement must be done through an order to show cause discussed below.
The absolute best method of approaching a divorce is for both parties to talk to each
other and work out all of the issues themselves. However, if this is not possible, it may
be in everyone's best interest to have a temporary order in place that will guide the
conduct of the parties until the final decree of divorce is entered. A temporary order is
usually obtained by filing an order to show cause at the same time as the petition for
divorce or shortly thereafter. The court will set a hearing date. The order to show cause
must then be personally served on the other party more than five working days prior to
the hearing date.
At the hearing, the attorneys for both parties will either proffer, meaning they will simply
state what the evidence would be, or they will actually call witnesses and introduce
evidence. It is up to the judge or commissioner to decide whether to conduct the
hearing on proffer or by allowing testimony and the introduction of evidence.
Note:
There is a protective order process for adults and children discussed above.
This is usually the quickest and best way to obtain an order protecting an adult or child
from physical or sexual abuse. The orders last for three years and can contain
provisions for the issues discussed above: custody, visitation, support, debt payment,
etc., that last up to 150 days. However, many divorces take much longer than 150 days
to complete, so, if you have a contested divorce, you should use the order to show
cause process to establish temporary orders as early on in the process as is
practicable.
If one party is not following the provisions in the decree, the other party can file an
order to show cause asking the court to find that the party not complying is in contempt
of the court's order. The court will enforce the decree, and fine or otherwise penalize
the party not following the order. If the noncomplying party has failed to pay money, a
judgment can be entered against that party. The judgment must be collected by the
other party through garnishment or attachment and sale of nonexempt property owned
by the noncomplying party. Contempt can also result in the noncomplying party being
sent to jail. The order is a civil order of contempt and does not go on a person's
criminal record.
A serious violation of the custody, visitation or child support order may result in criminal
charges being filed. A violation of the custody or visitation orders will be a
misdemeanor if the children remain in Utah, and a felony if they are taken across state
lines. Note, however, that most prosecutors will hesitate to pursue criminal charges
unless the custody and visitation orders are very specific and clear. A vague order for
joint legal and physical custody will probably not be enforceable either through
contempt or criminal charges. A very specific order that one parent has sole legal and
sole physical custody and with a carefully drafted visitation schedule similar to the state
guidelines should be enforceable through either civil contempt or criminal charges.
Once the court enters a divorce decree, it can be modified only if the parties can show
that there has been a substantial and material change in circumstances since the
divorce was entered. For example this might mean a large change in one party's
income, or the fact that one party moves from the state. Once the court finds that there
is a substantial and material change in circumstances, then it needs to determine what
the order should be. When reviewing a custody or visitation order, the court will always
base its decision on the best interest of the children. In the event of a substantial
change, a petition is filed with the court asking that the decree be modified.
If you disagree with your judge's order on one or more issues in your divorce, you have
the right to appeal. This means having a higher court review your case. You must file
your appeal within 30 days of the final entry of the decree of divorce. Appealing a case
is a complex and technical process and you should consider hiring an attorney to help
you.
SECTION FOUR: Resources and Referrals on Domestic Matters
In Salt Lake County, The Legal Aid Society of Salt Lake handles many types of
domestic relations matters at no charge for low-income individuals.
Contact The Legal Aid Society at (801) 328-8849.
Utah Legal Services represents petitioners in protective order matters, and represents
low-income individuals who have been abused in other matters such as divorce and
custody cases, for no charge. If you think you might qualify for assistance, or if you
need further information and referrals call 328-8891 in the Salt Lake valley or
800-662-4245 from everywhere else. Our normal intake hours are 9 a.m. until 2 p.m., Monday through Friday.
To find a private attorney, look in the yellow pages, the newspaper, or call the Utah
State Bar's Lawyer Referral Service at (801) 531-9075 or 1-800-698-9077. Attorneys
who are signed up on this service agree to see you in your initial consultation for a
reduced rate.
If your divorce is uncontested, or you know that you will be representing yourself, there
are a number of resources you can use. First, there is a program on the internet
sponsored by the court that will help you with your paperwork. The cost is $20.00,
payable when you file your papers. Access this service at www.utcourts.gov/ocap.
Utah Legal Services produces a number of do-it-yourself packets on divorce and
custody issues available at no cost to qualifying individuals.
Utah Legal Services can also refer you into a mediation program run through Utah
Dispute Resolution. To contact UDR directly call 801-532-4841, or contact ULS for
referral.
There are a number of clinics designed to help you with your divorce if you decide to
represent yourself. These include:
FREE LEGAL CLINICS STATEWIDE:
(Northern Utah: Box Elder, Cache, Davis, Morgan, Rich & Weber Counties)
Bar Night:
Held 2nd and 4th Thursday of each month at the YCC, located at 2261 Adams in Ogden. Call (801) 394-9456 for an appointment the week prior to clinic. Starts at 5:00 p.m.
Logan Pro Se Legal Clinic:
Held 2nd and 4th Thursday of each month from 8.30 - 11.30 am. Location - Cache County Hall of Justice, 120 North, 100 West, Logan, Council Chambers.
Brigham City Pro Se Legal Clinic:
Held on the 4th Thursday of each month from 1 - 4pm. Location - First District Court House, 43 North. Main, Brigham City, 2nd Floor Library.
(Northern Davis, Salt Lake, Tooele & Summit Counties Central Utah)
WAINE'S CLINIC, SALT LAKE CITY:
Waine's Clinic is held Tuesday and Thursday nights every week from 5- 11pm at the Matheson Courthouse in downtown Salt Lake City, 450 South State Street (the large white building on the West side of the street). Once you are beyond the metal detectors, walk straight down the hall, around the stairs, and keep walking on the main floor toward the West. Just before you go out the rear courthouse doors, turn left (South). You will see two large wooden doors with the marking W19 above them. Go through these doors. You will find three classrooms.
Waine's clinic is in one of them, usually W19b and W19c. Note: If you arrive too late in the evening, say after 8:00 p.m., the front doors of the court may be locked and you will not be able to attend the clinic that night. It is the most accessible of the clinics because it is held twice a week. Any person involved in a court case anywhere in the state may attend, no appointment is necessary. There is an occasional cancellation. Call (801) 238-7804 before you travel.
THE INTERNET PROGRAM FOR DIVORCE:
There is an interactive program on the Internet for divorce. This program is much easier to use than the packets and when finished the divorce documents are much better and more acceptable to the judges than if you use a packet. Waine strongly encourages everyone to create their divorce documents on the Internet rather than using the packets. You can access the program on a link found at www.utcourts.gov/ocap.
Divorce and eviction documents may be obtained on this Internet program. Using the program is free and will allow you to complete the documents you need for a divorce or eviction action. However, there will be a charge of $20 added to the normal filing fee which must be paid at the time the documents obtained from this Internet program are filed.
Tuesday Night Bar:
Held every Tuesday. Call (801) 531-9075 or (801)531-9077 for local calls, and 800-698-9077 for nearby counties willing to travel to Salt Lake City. Call Monday between 8-10 AM and 1- 4 PM to schedule an appointment, held at Utah State Bar, located at 645 South 200 East, 5:00-7:00pm. Tooele Clinic:
Held every Monday from 10 to 12 at the Tooele Courthouse, 47 South Main Street, check in, room # 318. Call (435) 843-3210, if there is no answer, then call any of the following people:
Sheila 843-3213
Tammi 843-3212
Sharon 843-3494
Eva 843-3211
Lucille 843-3220
Julie 843-3215
Community Legal Center Pro Se Clinic:
Held every 1st and 3rd Wednesday of each month from 11:30am to 3:00pm at the Community Legal Center in Salt Lake City, 205 North 400 West, 1st floor, (801) 924-9000.
(Central Utah: Carbon, Duchesne, Emery, Millard, Sanpete, Sevie Uintah, Utah, Wasatch & Wayne Counties )
Provo Divorce and Custody Pro Se Clinic. See below: Special Year Round clinics.
(North Eastern Utah: Dagget, Duchesne, Summit & Wasatch Counties)
Tuesday Night Bar:
First Tuesday of every month at the Park City's Miner's Hospital Community Center located at 1354 Park Avenue. No appointment necessary. Runs 6pm to 8pm.
Utah Legal Services Pro Se Clinic:
Held the 2nd Tuesday of every month at the Vernal Courthouse, 147 East Main. Hours vary between morning and afternoons. ULS can verify dates & times of the clinic's. Walk-ins are welcome. Contact - Amy Higginbottom @ 800-662-4245 ext. 3375
Free Legal Clinic:
Held the 2nd Wednesday of every month at the Roosevelt Senior Community Center, 50 East 200 South. Hours are from 9:30am to 12:00pm. (Call ULS for further dates) Walk-ins are welcome. Contact - Amy Higginbottom @ 800-662-4245 ext. 3375
(South Eastern Utah: Kane & Washington Counties)
Talk to A Lawyer:
Conducted by Snow, Jensen & Reece, 15 minutes consultation, held at Washington County Library in St George located at 50 South Main Street, the 3rd Thursday of each month, from 6:00 p.m. to 8:00 p.m. You need to call for an appointment (435) 628-3688.
(Western Utah)
Legal Clinic:
Held every first Tuesday of the month at the Seek Haven in Moab at 10:30 p.m. First come, first served. No appointment necessary.
Legal Clinic:
Held every first Monday of the month at the San Juan County Library in Blanding at 1:30 to 3:30 p.m. First come, first served. No appointment necessary
Special Year Round Clinics:
(These Are Free clinics For People who Need More Than Just Consultation)
Street law Sites in Salt Lake City:
Street Law is a joint project of the U of U Law School, ULS, and the Multi cultural Legal Center. There are currently eight Salt Lake City sites. Days and times are subject to change.
Guadalupe School:
340 S 1040 W (Goshen St.) - Every Tuesday 5pm-7pm. (Almost always a Spanish speaker there). FOCUS: general legal questions.
St. Vincent's:
200 S 427 W - Every Thursday 1pm-3.30pm. FOCUS: general legal questions, wage claims, personal injury & arrests.
Salvation Army:
423 W 300 S - Sundays, 8:30 - 10.30am. FOCUS: general legal questions and criminal issues.
Indian Walk-In Center:
120 West 1300 South. 2nd Tuesday of each month, 2 - 4.30pm. Contact Marlene Gonzalez at 486-1183 for appointment. FOCUS: public benefits, Indian Child Welfare Acts, domestics.
YWCA:
322 East Broadway (300 South). Every 2nd and 4th Wednesday 6 - 8pm. FOCUS: general legal questions, criminal issues.
Asian Street Law:
1588 South Major Street (between State and Main). First Tuesday of each month from 5.30 - 7pm. Call Patrick Tan at 328-8891 ext 3372 for appointment. FOCUS: general legal questions.
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Resources and Referrals for Victims of Domestic Violence:
Domestic Violence Info Line: 800-897-LINK (5465)
Utah Legal Services. . . . . . . . . . . . . . . . .800-662-4245
or local Salt Lake Valley. . . . . . . . . . . . . (801) 328-8891
Legal Aid Society of Salt Lake: (Salt Lake County cases only) . . . . . . . . . . . . . . . . . . . . . . . . . (801) 328-8849
Shelters/Safehouses:
Box Elder County:
YWCA, Brigham City . . . . . . . . . . . . . . . . (435) 723-5600
after hours. . . . . . . . . . . . . . . . . . . . (435) 723-3421
Cache County:
CAPSA, Logan . . . . . . . . . . . . . . . . . . . (435) 753-2500
(crisis) . . . . . . . . . . . . . . . . . . . . . (435) 752-4493
Carbon County:
Colleen Quigley Women's Center, Price . . . . . . . . . . . . . . . . . . . . . . . . . (435) 637-6589
Davis County:
Davis Citizens Coalition Against Violence, Kaysville. . . . . . . . . . . . . . . . (801) 444-3191
Grand County:
Seek Haven, Moab . . . . . . . . . . . . . . . . . (435) 259-2229
Iron County:
Canyon Creek Women's Crisis Center, Cedar City . . . . . . . . . . . . . . . . . . . . (435) 865-7443
Millard County:
Millard County Safehouse, Fillmore . . . . . . . . . . . . . . . . . . . . . . . . . (435) 743-6611
after hours. . . . . . . . . . . . . . . . . . . . (435) 743-5302
Delta. . . . . . . . . . . . . . . . . . . . . . . (435) 864-3869
after hours. . . . . . . . . . . . . . . . . . . . (435) 864-2755
Salt Lake County:
Women in Jeopardy/YWCA, SLC . . . . . . . . . . . . . . . . . . . . . . . . . (801) 355-2804
South Valley Sanctuary, West Jordan . . . . . . . . . . . . . . . . . . . . . . . . . (801) 255-1095
San Juan County:
Blanding/Monticello Safehouse . . . . . . . . . . . . . . . . . . . . . . . . . (435) 678-1400
after hours. . . . . . . . . . . . . . . . . . . . (435) 587-2237
Sevier County:
New Horizons Crisis Center, Richfield . . . . . . . . . . . . . . . . . . . . . . . . . . 800-343-6302
Summit & Wasatch Counties:
Peace House, Park City . . . . . . . . . . . . . . (435) 647-9161
Tooele County:
Tooele Shelter, Tooele . . . . . . . . . . . . . . (801) 833-7350
Uintah County:
Women's Crisis Center, Vernal . . . . . . . . . . . . . . . . . . . . . . . . . (435) 781-4250
Utah County:
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Center for Women & Children in Crisis, Provo. . . . . . . . . . . . . . . . . . . . . . . (801) 377-5500
hotline. . . . . . . . . . . . . . . . . . . . . . (801) 374-9351
Washington County:
Dove Center, St. George. . . . . . . . . . . . . . (435) 628-0458
Weber County:
YCC, Ogden hotline . . . . . . . . . . . . . . . . (801) 392-7273
office . . . . . . . . . . . . . . . . . . . . . . (801) 394-9496
Victim Advocates Statewide:
Beaver County:
Jessie Roberts . . . . . . . . . . . . . . . . . . (435) 438-5309
Box Elder County:
June Loveless. . . . . . . . . . . . . . . . . . . . 877-723-5600
Cache County:
Rebekah Alpisa . . . . . . . . . . . . . . . . . . (435) 752-8920
Carbon County:
Deborah Kobe . . . . . . . . . . . . . . . . . . . (435) 636-3250
Daggett County: See Uintah County
Davis County:
Teresa Kendel. . . . . . . . . . . . . . . . . . . (801) 451-4340
Kathryn Miles, Layton. . . . . . . . . . . . . . . (801) 546-8539
Duchesne County:
Tracie McGill. . . . . . . . . . . . . . . . . . . (435) 722-0828
Emery County: See Carbon County
Garfield County: See Iron County
Grand County:
Stephanie Dahlstrom. . . . . . . . . . . . . . . . (435) 259-1384
Iron County:
Anne Yero. . . . . . . . . . . . . . . . . . . . . (435) 865-6368
Juab County: See Sevier County
Kane County:
Doreen Jensen. . . . . . . . . . . . . . . . . . . (435) 644-5278
Crisis Hotline . . . . . . . . . . . . . . . . . . (435) 689-1199
Millard County:
Christine Stevens. . . . . . . . . . . . . . . . . (435) 743-6522
Morgan County: See Weber County
Piute County: See Sevier County
Rich County: See Cache County
Salt Lake County:
Jennifer Johnson, Midvale . . . . . . . . . . . . . . . . . . . . . . . . . (801) 567-7266
Angel Shuler, Murray . . . . . . . . . . . . . . . . . . . (801) 284-4203 or 284-4201
Monica Owen, Salt Lake City . . . . . . . . . . . . . . . . . . . . . . . . . (801) 799-3473
Crisis Hotline . . . . . . . . . . . . . . . . . . (801) 580-7969
Pam Rom, Salt Lake County:
A-J. . . . . . . . . . . . . . . . . . . . . . . . (801) 535-5277
K-Z. . . . . . . . . . . . . . . . . . . . . . . . (801) 535-5220
Erika Johnson, Sandy . . . . . . . . . . . . . . . . . . . . . .(801) 566-SAVE (7283)
Rachel Carlson, South Salt Lake . . . . . . . . . . . . . . . . . . . . . . . . . (801) 423-6099
Jeanette Behr, South Jordan . . . . . . . . . . . . . . . . . . . . . . . . . (801) 254-4708
Kevin Nolenberg, University of Utah . . . . . . . . . . . . . . . . . . . . . . . . . (801) 581-7944
Diane Greaves, West Jordan 24 hours . . . . . . . . . . . . . . . . . . . . . (801) 566-6511
Kendra Brandon, West Valley City . . . . . . . . . . . . . . . . . . . . . . . . . (801) 231-8185
San Juan County:
Lou Mueller. . . . . . . . . . . . . . . . . . . . (435) 587-2237
Crisis Hotline . . . . . . . . . . . . . . . . . . (435) 459-1292
Sanpete County: See Sevier County
Sevier County:
Caron Weathers . . . . . . . . . . . . . . . . . . . 800-343-6302
Summit County:
Jeannie Edens. . . . . . . . . . . . . . . . . . . (435) 615-3850
Crisis Hotline . . . . . . . . . . . . . . . . . . (435) 647-7647
Tooele County:
April Tattersall . . . . . . . . . . . . . . . . . . 800-833-5515
Uintah County:
Krista Atwood. . . . . . . . . . . . . . . . . . . (435) 789-4250
Utah County:
Diana Cornel, Lehi . . . . . . . . . . . . . . . . (801) 768-7117
Crisis Hotline . . . . . . . . . . . . . . . . . . (801) 768-6689
Betty Mcmaster, Orem . . . . . . . . . . . . . . . (801) 229-7128
Vicky Proctor, Provo . . . . . . . . . . . . . . . (801) 852-6375
Crisis Hotline . . . . . . . . . . . . . . . . . . (801) 852-6210
Lene Monford, Springville/Mapleton . . . . . . . . . . . . . . . . . . . . . . . . . (801) 489-9421
Patty Long, south Utah County: . . . . . . . . . . . . . . . . . . . . . . . . . (801) 465-5224 pager . . . . . . . . . . . . . . . . . . . . . . (801) 227-1700
Wasatch County:
Lynn Robertson . . . . . . . . . . . . . .(453) 654-3211 ext. 338
Washington County:
Sharleen Pickett . . . . . . . . . . . . . . . . . (435) 634-2488
Leith Hallows. . . . . . . . . . . . . . . . . . . (435) 634-2488
Wayne County: See Sevier County
Weber County:
Diana Krouter. . . . . . . . . . . . . . . . . . . (801) 399-8152
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If you have comments, questions,suggestions, or concerns about this handbook or services provided by Utah Legal Services, we would appreciate hearing from you.
Please call (801) 328-8891 within the Salt Lake valley,or 800-662-4245 toll free anywhere else in Utah.
Utah Legal Services, Inc.
Community Legal Center
205 North 400 West
Salt Lake City, Utah 84103-1125