How to Calculate Child Support in a Utah Divorce?

(Video above: Utah attorney, Trevor Osborn, explains how to calculate the amount of child support you be paying or receiving in your Utah divorce or Utah custody case). 

The easiest way to calculate child support is to use the child support calculator provided on the Office of Recovery Services’ (ORS) website, HERE.  If you’re unsure of how to go about using this calculator, this article will help you.

In Utah, there’s a number of factors the court will consider when determining how much child support you will have to pay, or how much child support you will receive in your divorce or custody battle.  The court will consider (1) the income of both of the parties; (2) the number of children born to both of the parents; (3) the type of physical custody awarded; (4) whether one of the parties has another child support or alimony obligation in a different case; (5) whether there are other children currently living with one of the parents whom that parent is obligated to support.  This article will discuss each of these factors in more detail below.

The Parties’ Income.

We consider the income of both of the parties when calculating child support:  the party paying child support and the party receiving child support.

Unemployed Parent.  Occasionally, one of the parents is unemployed and therefore does not have any income.  When this occurs, the court can impute income–this means that the court will look at the work history and employable skills of that unemployed parent to determine the amount of income the parent is capable of earning.  For example, if the parent was previously employed making $60,000 per year, the court may determine that the parent presently has the ability to make $60,000 per year, and then court will use this hypothetical figure to calculate the amount of child support owed/received.

Unemployed with No Previous Work History.  If the parent doesn’t have any previous work history or any employable skills, the court will likely determine that the parent has the ability to make at least minimum wage.

Inconsistent Income.  Sometimes a parent is employed in a position where their income is dependent upon commissions, where their work is seasonal, or where for any other reason their income fluctuates month to month or year to year.  In this case, the court may look at the parent’s salary over  the past several years to determine an average salary that the parent will be held to for the purposes of calculating child support.

Second Job or Overtime Pay.  Generally, child support is calculated based on a parent’s 40 hour work week.  Overtime pay and income from a second job can be considered when calculating child support, but generally is not.

Number of children that the parties have together.

The number of children born to both of the parents has one of the most significant impacts on the amount of child support that will be paid/received.  Of course, if there are more children born to the parents, the amount of child support paid/received will be higher.

Type of physical custody awarded.

The type of physical custody awarded to the parents is another factor will significantly impact the amount of child support paid/received.

Joint Physical Custody.  Joint physical custody is determined by the number of overnights each year that the children spend with each of the parents.  The amount of child support will fluctuate depending on the number of overnights the child spends with each of the parents.  For example, in a joint custody situation, if a child spends 111 overnights with one parent and 254 overnights with the other parent the child support obligation will be much higher than if the child spends 183 overnights with one parent and 182 overnights with the other parent.

Primary Physical Custody.  If one party is awarded primary physical custody then we no longer consider the amount of overnights the children spend with each of the parents and we calculate child support based only on the fact that primary physical custody has been awarded.

Previous Child Support or Alimony Obligation in a Different Case.

The court will consider the amount of child support or alimony (spousal support) that one of the parents has to pay in another, different case when calculating the child support owed/received in your case.

Obligation to Children in the Present Home.

If one of parents has been remarried and there are other children of that marriage living in that parent’s home, the court will consider the financial obligation that parent owes to those children when calculating child support.

You can find more information in our Utah family law library.  Or contact us to schedule a free consultation.

How To Modify Custody In Utah

If you have an existing court order that sets forth the terms of your custody arrangement, and you want to change that custody arrangement, you can do so by filing what is called a “Petition to Modify” with the proper court.

Under current Utah family law, in order for the court to grant you the change of custody that you are seeking, you must present enough evidence that the court can make two separate and distinct findings:  (1) that a material and substantial change of circumstances has occurred in your case, and (2) that a change in custody is in the best interest of the child(ren).

Let’s address each of these two categories separately.

1. A Material and Substantial Change of Circumstances

For the court to find that a material and substantial change of circumstances has occurred, you must present sufficient evidence that not only has there been changes in the child’s life or in the parent’s life, but that the changes that have occurred have actually had a significant impact on the ability of the parent’s to parent their children and/or on the custodial relationship.

Here are a few examples of what might amount to a material and substantial change of circumstances:

• A change in the child’s living environment.  This could occur if one of the parents were to get remarried.  Such an event can present significant difficulties for a child in their day-to-day life as the child attempts to navigate a new relationship with a third parental figure and step siblings.

• One parent getting a new job or moving to a new location that would require the child to go to a new school, find new friends, join new sport teams, etc.

• The child is doing poorly in school or having recurring health problems.  The court may be even further persuaded to find a material and substantial change of circumstances in this case if the parent seeking the change of custody can demonstrated their ability to address the child’s educational struggles or health problems in a more effective way than the other parent.

• Changes in religion.  If a child was raised in one denomination, and one parent is no longer actively involved in that religion, it could be argued that this situation affects the child’s stability and continuity in life.

• There has already effectively been a change in custody and/or parent time.  If five years ago the court ordered that dad would only have one weekday visit each week, but over the last two years, and upon mutual agreement with the mother, dad has actually been having several weekday visits each week and the child has often been spending the night at dad’s house, dad can go back to the court and in essence say: “I would like the this Court to change our previous custody arrangement to reflect what we’ve been doing the past two years.  The changes we’ve made to the custody arrangement have been working and the child is happy.”

• The child desires a change.  By Utah statute, a child 14 years old or older can articulate their preferred custodial arrangement to the court or a court assigned Guardian ad Litem.  A child’s stated preference can have a significant influence on whether or not the court finds that a material and substantial change of circumstances has occurred.

There is no guarantee that any of the examples will result in the court altering an existing custody ruling.  In our experience, it is usually the accumulative effect of multiple factors that move a court to allow you to pass this first hurdle of “a material and substantial change of circumstances.”  That is why it is important to include as many factors as possible in your filing.

Keep in mind, if you don’t pass over this first hurdle, the court will not move on to the second hurdle addressing whether a change in custody is in the child’s best interest.

2. A Change in Custody is in the Child’s Best Interest

Often times, the evidence you’ve presented to show the court that a material and substantial change of circumstances has occurred is the very same evidence you need to show that a change in custody is in the child’s best interest.  Sometimes the court will find that the initial evidence you have presented is enough to for you to clear both hurdles and be granted that change in custody you desire.  However, other factors the court may take into consideration are:

• The Child’s level of happiness in their current environment.
• Whether the child is thriving and well adjusted.
• The depth and quality of the relationship between the parents and the children.
• The parenting abilities of the parents since the original custody arrangement was entered into.
• Whether the child has been exposed to domestic violence or other harmful situations.
• Whether the parents have been able to facilitate a good relationship between the child and the other parent.

The Court is most interested in placing the child in a custodial arrangement that is most likely to be best for the child’s emotional, spiritual, psychological, and physical health.

Conclusion

If you present enough evidence for the court to find (1) a material and substantial change of circumstances has occurred, and (2) a change in custody is in the child’s best interest, the court will change its previous order of custody and issue a new order reflecting a new custodial arrangement.

Motion For Temporary Orders in Utah Divorce

(Video above:  Ogden attorney, Trevor Osborn, discusses what a Motion For Temporary Orders is and how it may apply to your Utah divorce or custody battle.)

It can take anywhere from 6 months to more than a year before a divorce or custody dispute in Utah is fully resolved. This extended timeline can create a lot of hardships for families.  For example, most parents don’t want to wait until their case is completely resolved before they can have parent time with their children, or before they can have some degree of custody of their children, or before they can access some of their assets that are now tied up due to the pending divorce or custody proceeding.  A Motion for Temporary Orders enables the parties of a case to bring these types of issues before the court and ask the court to provide a temporary resolution while the parties await the court’s final decision on the pending issues.

Some issues that are typically addressed in a Motion for Temporary Orders are:

• Temporary Physical Custody.  Whether both parties will be awarded joint physical custody of the children, or whether one party will be awarded primary physical custody of the children.

• Temporary Legal Custody.  Whether both parties will be awarded joint legal custody, or whether one party will be awarded sole legal custody of the children.

• Parent Time.  How much time each parent will be allowed to spend with the children, and the dates and times of that parent time.

• Child Support.  Whether one party will be entitled to child support from the other party.

• Division of Expenses.  If there are ongoing expenses carrying over from a marriage (mortgage, debt, business expenses, etc.) whether these expenses be shared between the parties.  If the children have recurring expenses, such as extracurricular activities, school fees, etc. the court may likewise order that such expenses be shared between the parties.

• Contribution to Insurance Premiums and Out of Pocket Healthcare Expenses.  Typically the court will order that the parents share in the costs of the children’s insurance coverage and any out of pocket expenses involved with the children’s healthcare.

• Division of Property.  Whether one of the parties should be entitled to live in the marital home, have exclusive access to vehicles, have access to bank accounts, or otherwise be entitled to certain use of marital property until the court has made its final decision on the case.

• Restraining Orders.  Whether the court needs to make an order for the protection of the other party.  For example, the court may require that one party stop visiting the work or residence of the other party, that they stop using abusive language toward the other party, or that they stop disparaging the other party in front of the children.

Once your motion has been filed, the other party has 14 days to respond.  At the hearing, both parties and attorneys will be present and the attorneys will make arguments before a court commissioner.  Generally, the commissioner will make a decision on your motion right there in court immediately after the attorneys have plead their respective cases.  If you do not like the decision, you have 14 days to object and have the commissioner’s decision reviewed by your assigned district court judge.

Remember, these rulings are temporary in nature and do not constitute the final and permanent outcome of your case.  These temporary orders may be changed, and frequently are changed, in the final divorce decree by court ruling or if the parties come to an agreement and settle the case before trial.

You can find more information in our Utah family law library.  Or contact us to schedule a free consultation.