Plan for Inevitable Divorce and or Custody Order

Attorney at Law

Divorce petitions require consideration of custody of the minor children, child support, division of the vehicles and personal property of the marriage, sale or keeping of the real property for one party or the other, alimony for a specific number of years, possible life insurance for the provider that is paying support, division of retirement proceeds accumulated during the marriage, disposition of debts and grounds of irreconcilable differences or otherwise to justify the petition filing.Custody petitions require designation of parents of the minor child or children and representation that no marriage ever occurred between the parties and that one or the other parent is to have joint or sole legal and joint or sole physical custody of the child, what the visitation rights will be, what party will pay support for the other and designating obligations for medical insurance, day care payment, pickup and drop off times for visitation and holidays allowed to each parent.

Who will have the custody of my children?

Of primary consideration in a divorce is who will have the legal and physical custody of the minor children. This is also applicable to custody cases where there is no marriage. The parties may agree or dispute for court determination whether they should be allowed sole or joint legal custody, which is where both parents have rights regarding school and medical information regarding a minor child, or whether they should be allowed joint or sole physical custody, which is what parent will provide the primary residence of the child. In joint or shared physical custody the parties agree or the court orders so many days a week with one parent and the alternating days with the other.

What will you pay for child support?

The amount of child support a parent will pay for his children will be determined by way of a child support worksheet the state of Utah provides that calculates the amount of monthly income the parents each earn along with the number of children to receive support and sets out the amount the non-custodial parent will pay to the custodial parent. The number of days of visitation allowed to the non-custodial parent will lessen the amount of child support that parent will have to pay. If the parties have a shared custody agreement or order the child support will be considerably less than if the non-custodial parent only has standard minimum visitation of one night a week and every other weekend with the kids. Life insurance may offset risk of loss of support given the potential death of a supporting parent.

What will you pay for alimony?

Alimony is a consideration only in divorce actions. Parties that have children that never marry do not face an order for payment of alimony unless in the unusual circumstance that a parent may prove a common law marriage existed. Alimony is calculated on the gross monthly income of the married couple and intended to equalize the incomes after consideration of child support and whether a spouse is the primary bread winner or a homemaker and has not worked. Alimony is normally granted for no longer than the years of the marriage.

What are other expenses I will pay for the children?

Medical and dental insurance coverage is required of the parties and normally the one that has most availability of carrying the insurance will do so. Both parents will be required to pay equally for the cost of the monthly insurance premium as well as any uninsured costs incurred by the child. Day care costs are also divided between the parties, with the parent that pays the cost giving notice to the other within 30 days of payment and reimbursement being required within the next 30 days.

What of my personal property may I retain?

Divorce is the only action that requires division of the marital estate. Normally disposition comes by agreement between the parties but in case of dispute may be court ordered. Marital real property may be sold and the equity divided equally between the parties. A party asking to keep the marital property normally will refinance and pay the calculated half interest in the equity to the other party and remove that party’s name from the title and mortgage. Each party may also expect to have half of the personal property of the marriage, including vehicles, furniture, household belongings and personal effects.

What happens to my retirement?

Divorce actions will consider division of retirement based upon what has accrued during the course of the marriage only.

Who pays the debts of the marriage?

Debts of the marriage in divorce are normally divided equally between the husband and wife, but only those amounts that were incurred during the marriage. A divorce decree often orders that each party maintain payment for their own debts incurred after the separation.

What are my grounds for divorce?

Irreconcilable differences is a kind of catch all designation for grounds for the court to allow a divorce. That may boil down to a parent simply wanting out of the marriage, which either party may easily obtain. Adultery is sometimes pleaded as grounds for divorce where that has occurred and may be used to have the court attribute fault to a party for causing the divorce. Sometimes fault is a basis for obtaining more alimony.

CAN I EVER CHANGE THE MARRIAGE OR CUSTODY DECREE?

A party may file a petition for modification to request changes in a final decree of the court. This may not always be necessary if the parties simply wish to stipulate to a change and obtain a final order on that agreement. If a sufficient change in circumstances has occurred, such as a 30% change in a party’s income or other custody changes have taken place such as a move over 150 miles from present location, where the parties do not agree about the new order sought, the petition to modify is filed and there is similar procedure through the court system to obtain a final and new order for accommodation of the change of circumstances.

WHAT IS THE COURT PROCEDURE FOR DIVORCE OR CUSTODY?

A petition for divorce or custody is filed with the court and served upon the opposing party. An answer to the petition is filed. A format for Financial Declaration is completed and exchanged between the parties with supporting documents. Motion for temporary orders until a final order, may be filed and heard by the commissioner. Mediation then takes place where parties meet with counsels and mediator to attempt to negotiate resolution of all issues of the case. If no agreement at mediation the matter is set for trial.

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