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 graph below (which correlates with the headings in this page) should give you an idea of what to expect.
This page will briefly discuss the topics listed below. For a more in-depth discussion of each of these topics, click the links found throughout this page, or use our menu on the left.
Filing the Petition for Divorce
Divorce proceedings do not officially begin until one party files a petition for divorce. While a petition for divorce will address many issues, such as alimony/spousal support, child custody, parent-time/visitation, and several other things that will be discussed below, there are at least two preliminary factors that must be addressed in the petition: (1) the grounds for divorce, and (2) jurisdiction of the court.
- 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) one of the spouse’s willful neglect to provide for the other the common necessities of life; (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 without living together.
- Proper Venue. A person must file their petition for divorce in the district court 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 custody of minor children are at issue in the divorce, then whoever files the petition for divorce must make sure that either (1) Utah is the “home state” of the child at the time the petition for divorce is filed, or (2) Utah was the “home state” of the child within six months prior to the filing of the petition for divorce and one of the parents currently lives in Utah. The “home state” of the child means the state in which a child lived with a parent for at least six consecutive months immediately before the petition or 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. Whoever files the petition first chooses 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 the petition along with a summons served to your spouse by a constable or process server. These documents must be delivered to your spouse within 120 days from the day you filed your petition for divorce with the court.
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 is called the “answer.” The opposing party’s answer may also be accompanied by a counter petition, which is that 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 filing spouse may move the court to enter judgment on their behalf. Default judgment is when the court enters judgment on behalf of one party because the other party fails to take action.
90 Day Waiting Period
In Utah, a court cannot enter a final decree of divorce until 90 days after the initial filing of the petition for divorce. This 90 day waiting period may be waived in extraordinary circumstances, or if the other party agrees to waive the waiting period, but a judge will ultimately make the final decision.
Parenting-Plan (If Minor Children are Involved)
Both parties to a divorce must attach a parenting plan to their divorce petition, or to their answer to the divorce petition, if there are minor children involved. A parenting plan is a document that details how the divorcing parents are going to share their parental responsibilities and care for the minor child(ren). Click here to read more about 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, 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, which will contain permanent orders overriding any existing temporary orders. 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 they have the financial resources to do so.
Mandatory Mediation. In Utah, divorcing couples are required to participate in mediation.
What is 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 divorce law, and qualified to help both parties fashion an agreement that addresses their key concerns.
Benefits of Mediation. Mediation is similar to negotiation in that both parties must come to the mediation prepared to give and take. Mediation will be fruitless if one party is unwilling to be flexible in their demands. While mediation can sometimes be a frustrating process, it can also help the parties to lessen the detrimental impact of divorce proceedings on children, reduce the overall stress of litigating every divorce issue in court, and save the parties a significant amount of money.
Outcome of Mediation. If mediation results in a settlement between the parties then the parties will submit the terms of their settlement to the court in the form of a stipulation. The court will then enter the terms of the stipulation in the form of a Decree of Divorce. If the parties do not settle their case in mediation, then the parties will proceed with the litigation process.
Discovery is a time period in a lawsuit which provides both sides of the case the opportunity to uncover evidence that can be used to either prove or disprove their case.
The discovery process can include:
- Initial Disclosures. Each party must provide the opposing party with certain items of evidence, or discovery, listed in the Utah Rules of Civil Procedure here and here. These include the names, addresses, and telephone numbers of those individuals likely to have information in support of the disclosing party’s claims or defenses, or those individuals that will be presenting facts at trial. Additionally, parties provide copies of all documents that they intend to offer at trial in support of their claims or defenses.
- Financial Declarations. Each party must disclose to the opposing party a fully completed court-approved financial declaration accompanied by all its attachments. This includes copies of financial statements verifying income and expenses, tax returns, W-2 forms, pay stubs, loan applications, and documents verifying the value of any interest in real estate.
- Depositions. A deposition is where either side’s attorney interviews an individual (e.g. a witness intending to testify at trial, or one of the divorcing parties) and that interview is taken under oath and is recorded. It is similar to what someone would experience if they were on the witness stand in the courtroom, except depositions usually take place inside a law office where no judge is present. The attorney will ask questions related to the issues the divorcing couple are litigating/disputing over. The recorded transcript from the deposition will later be used in trial.
- Requests for Admission. These are used to force the opposing party to admit certain facts related to their case.
- Interrogatories. Interrogatories are a list of questions that enable attorneys to uncover both general and specific information from the opposing party.
- Requests for Production of Documents. The court allows each party to see documents containing evidence that is relevant to the issues in dispute. These requests could be served on the opposing party to uncover evidence such as financial records, witness statements, photographs, recorded material, digital material, etc. In most Utah divorce cases, parties will be allowed to make five (5) requests for production of documents.
Motions take place throughout the discovery period, and are requests made by either side asking the court to approve a certain action or prevent a certain action. For example, motions can be made for temporary orders, as discussed above, or for other purposes such as to prevent the opposing party from obtaining certain evidence (such as financial records, or certain documents kept by your attorney). You may file a motion in an attempt to force the other side to provide certain evidence that they are keeping from you, or to prevent certain witnesses from testifying. There really is no limit as 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 a custody evaluation on its own or at the request of one of the parties. The purpose of a custody evaluation is to provide the court with information it can use to make decisions regarding custody and parent-time/visitation arrangements that are in the child’s best interests. Custody evaluations are usually performed by licensed clinical social workers, psychologists, psychiatrists, or licensed marriage and family therapists, and are typically quite expensive with costs ranging between $2,500 and $8,000 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 for any issues not resolved in mediation or other settlement negotiations, the parties to a divorce must meet with a judge or commissioner in a pretrial conference. The purpose of a pretrial conference is to discuss the issues pending for trial and encourage settlement. After a pretrial conference the parties usually have a better idea as to the strength of their case, or at least how the judge or commissioner perceives the strength of their case, and therefore may be more likely to settle on certain issues that they weren’t previously willing to settle on.
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. Each party may provide witness testimony, documentation, and other evidence bearing some significance on the issues at hand. At trial, evidence regarding any or all of the issues below will be presented.
- 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 in bringing up a child.
- Parent Time / Visitation. The amount of parent time to which a non-custodial parent is entitled is provided by statute. However, 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 determined by how much money the parent makes, how many overnights the child will be spending with the 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, such as their financial condition, the ability of the payor spouse to pay, the length of the marriage, 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. 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, was given, or brought property into the marriage, that property may be protected property and therefore not subject to division. 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 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 decide on the issues disputed between the two parties. Once he has decided on these issues, he will enter the Final Decree of Divorce. A Final Decree of Divorce grants the divorce and concludes the case. It will include certain provisions and orders regarding custody, parent-time, alimony, child support, and other orders the court deems appropriate.
If a party wants to appeal the court’s final decree of divorce, or any provisions contained therein, they may do so 30 days after the final decree has been entered.