Filing for Divorce in Ogden
Divorce – Timeline & Overview
Filing for a divorce in Utah requires a number of different steps and considerations. This overview is meant to provide you with a broad understanding of what to expect in your Utah divorce. While the timeline for divorces differs depending on a number of factors, this information should give you an idea of what to expect. For a more in-depth discussion of each of the topics listed below, click the links found throughout this page.
Grounds for Divorce. In Utah, you must have grounds in order to obtain a divorce. It is very common for divorcing couples to cite “irreconcilable differences” as grounds for their divorce, however, Utah law provides that any of the following reasons are sufficient: (1) impotency of one of the spouses at the time of marriage; (2) adultery; (3) if one of the spouses left/deserted the other for more than one year; (4) a spouse’s willful neglect to provide the common necessities of life for the other; (5) habitual drunkenness; (6) conviction for a felony crime; (7) cruel treatment by one spouse to the other to the point of causing bodily injury or great mental distress; (8) irreconcilable differences; (9) incurable insanity; (10) when the two spouses have been living separately under a “decree of separate maintenance” for three consecutive years.
Jurisdiction/Proper Court for the Divorce. A person must file their petition for divorce in the county where one of the parties has resided for at least three consecutive months prior to the filing of the petition.
Child Custody Jurisdiction. Similar to divorce jurisdiction above, a court must have jurisdiction in order to make legal and binding decisions when it comes to the custody of children. If the court will be deciding custody of minor children in the divorce, then whoever files the petition for divorce must make sure that Utah is the “home state” of the child at the time the petition for divorce is filed. There are lots of ways to determine what the “home state” is, but it’s usually the state where a child has lived with a parent for at least six consecutive months prior to the time the Petition for Divorce was filed.
Does it Matter Which Spouse Files For Divorce?
Generally no, it doesn’t matter which spouse files for divorce. There is no legal advantage to filing the petition for divorce first; however, there may be strategical advantages. For example, whoever files first may get to choose which court will be hearing the divorce. This can be an advantage if the parties live fairly far away from each other. For example, if Wife lives in Utah County and files the petition for divorce there, and Husband lives in Weber County, then Husband must make the hour and a half drive to Utah County for all necessary court proceedings. Also, whoever files the petition first has the option of setting the initial tone of the divorce proceedings.
Serving Your Spouse with the Divorce Papers
Once you file your petition for divorce, you must have that petition and a “summons” served to your spouse by a constable or process server.
Answer & Counter Petition
The opposing party (or the spouse who did not file the petition for divorce) must respond to the petition for divorce within 21 days from the time they were served with the petition, or 30 days if they are living outside the state of Utah. This response is called the “answer.” The opposing party’s answer may also be accompanied by a counter petition, which is the responding spouse’s own petition for divorce containing a list of their demands and issues they wish the court to address.
If the other spouse does not file an answer within 21 days from the time they were served with the petition for divorce, then the spouse that filed the divorce can ask the court to give them everything they asked for. This is called “Default Judgment.” Default judgment occurs when the court enters judgment on behalf of one party because the other party fails to take action within the time limits required.
30 Day Waiting Period
In Utah, a court cannot enter a final decree of divorce until 30 days after the initial filing of the petition for divorce. This 30 day waiting period may be waived in extraordinary circumstances.
Parenting-Plan (If Minor Children are Involved)
If either party is asking for joint legal or joint physical custody, a Parenting Plan must be filed with the Petition for Divorce. A parenting plan is a document that details how divorcing parents are going to share their parental responsibilities and care for the minor child(ren). Click here to read more about joint custody that requires parenting plans.
Either party can request that the court enter temporary orders in their divorce proceeding. Temporary orders address certain issues that can’t or shouldn’t be put off until the divorce has been finalized, such as child custody, parent time, child support, spousal support/alimony, property division, or money for attorney fees. If the court grants a temporary order, that order will typically be in effect until the court enters the final decree of divorce, or the final orders that officially close up the case. Click here to learn more about Temporary Orders.
Attorney Fees (For Spouses that Cannot Afford Their Own Attorney). Utah law provides that if one spouse is unable to pay the costs necessary to defend himself/herself in a divorce action, a court may order the other spouse to pay for his/her reasonable attorney fees, witness fees, court costs, and other necessary expenses so long as that other spouse has the financial resources to do so.
Mandatory Mediation. In Utah, divorcing couples are required to participate in mediation. Mediation is the process by which both parties to a divorce attempt to resolve their disputes without the intervention of the court or a judge. Both parties, and their attorneys if they have them, will meet with a neutral third party called a mediator. A mediator is skilled in the area of divorce negotiations, well informed concerning Utah divorce laws and Utah child custody laws, and qualified to help both parties create an agreement that addresses their key concerns. The best-case-scenario in mediation is that the parties resolve their case; the worst-case-scenario is the parties resolve nothing and continue litigating in court. You can learn more about mediation here.
Discovery is the process where parties and their attorneys gather evidence that can be used to either prove or disprove allegations. In divorces, custody battles, and other family law cases, Utah law requires that parties disclose certain information to the other side, like that information listed in the Utah Rules of Civil Procedure here and here. Each party must also give the other party a fully completed financial declaration, accompanied by all its attachments. Additionally, there are certain tools parties can use to gather information from the opposing side. These tools can be used to force the other party to produce documents they may have in their possession, to answer certain open-ended questions about certain things, or to admit important facts about the case.
When a party to a case wants the court to do something, they file a motion. Motions, or requests, can be made for temporary orders (discussed above), to hold someone accountable for violating court orders, to provide added protections for children, to protect privacy, or for any number of other things. There really is no limit to what may be requested in a motion, but ultimately a judge decides whether your motion is granted or denied.
If the parties cannot agree on custody and parent-time/visitation, the court may order the parties to complete a custody evaluation. A custody evaluation is a process wherein a custody evaluator (often a child psychologist with a Ph.D.) meets and observes the parties, the children, speaks with other people in the children’s lives (i.e. therapists, teachers, etc.), often does some psychological testing on the parties, and then makes a professional recommendation to the judge based on what they have learned and observed. Custody evaluations are quite expensive, with costs typically ranging between $3,000 and $12,000 depending on the number of adults and children involved and the amount of information that needs to be gathered.
Some of the factors that will be considered in a custody evaluation include:
- Each parent’s capacity to parent
- The developmental, emotional, and physical needs of the child
- The child’s preference
- Benefits of keeping siblings together
- The strength of the bond between the child and each parent
- The moral character and emotional stability of each parent
- The duration and depth of desire for custody
- The ability to provide personal rather than surrogate care
- Significant impairment of ability to function as a parent through drug abuse, excessive drinking, or other causes
- Reasons for having relinquished custody in the past
- Religious compatibility between each parent and the child
- Financial conditions of each parent
- Evidence of abuse of the child, another child, or the spouse
Prior to scheduling a trial date, the parties to a divorce must meet with a judge in a pretrial conference. The purpose of a pretrial conference is to discuss what issues need to be addressed at trial, resolve any outstanding administrative or procedural concerns, and then schedule a trial date. Sometimes a pre-trial conference provides additional opportunities for the parties to work out a settlement agreement.
If the parties have not reached a settlement on some or all of the issues in dispute, then a trial will be held where both parties are provided the opportunity to present their case to the judge. Each party may provide witnesses to testify and evidence that supports their case. The issues below are some of the typical issues addressed at a trial.
Custody. There are two types of custody: physical custody and legal custody. Physical custody deals with the amount of overnights a child spends at each of the parents’ homes, and legal custody deals with the rights, privileges, duties, and powers of a parent with respect to their child.
Parent Time / Visitation. Parent-time is the actual schedule dictating when the children are to be with either parent. In many cases, parent-time/visitation issues are tailored to fit the individual needs of the children and the parties in the case at hand. You can read more about parent time and visitation here.
Child Support. The amount of child support a parent must pay is usually determined by how much money the parents make, how many overnights the child will be spending with each parent, and whether the parent already has other child support and alimony obligations.
Alimony. Whether or not one of the parties to a Utah divorce is entitled to alimony depends on a number of factors, including: the financial condition of the party asking for alimony, the ability of the payor spouse to pay alimony, the length of the marriage, whether one of the parties has custody of minor children, and whether one of the parties engaged in wrongful conduct during the marriage.
Splitting Assets. In a Utah divorce, courts will divide property between spouses equitably (fairly). Equitable division of property doesn’t always mean that each spouse will receive 50% of the assets, but it often does. A court will consider the monetary value of the assets, but it will also consider all the circumstances of the divorce and the individual parties. If a spouse inherited or was given certain property, for example, then that spouse may be permitted to keep 100% of that property in the divorce. Click here to read more on this topic.
Debt Division. Utah courts divide debts in a divorce similar to the way they divide property: debts will be divided equitably/fairly. Typically, debts entered into during the marriage will be divided between spouses while personal debts entered into by one of the spouses before the marriage will not be divided. Click here to read more about debt division.
Final Decree of Divorce
After trial, a judge will make a final decision and enter the final Decree of Divorce. A Decree of Divorce deems the parties officially divorced and concludes the case. It will include provisions that address every issue the parties had in dispute and tell each of the parties what their rights and obligations are going forward.
If a party wants to appeal the court’s final Decree of Divorce, or any provisions contained therein, they must typically do so within 30 days after the Decree of Divorce has been entered.