Richards, Brinley and Richards Law Group

I AM THINKING ABOUT DIVORCE:

 

What do I need to know? 

            One of the most difficult times in a person’s life is when they find out they are getting a divorce or are needing one.  It is a life changing event.  It puts stress not only on the individual parties to the divorce but there are collateral stresses as well.  These collateral stresses relate to the impact of divorce on your children, personal finances, dealing with familial relationships no mention a few, and dealing with an unknown future to mention a few.  This article is to help offer some guidance in navigating these waters. 

            When parties get married they contract (agree) with one another to do certain things.  Parties often agree to have children, purchase property and acquire assets, and more often than not incur debt along the way.  When parties get divorced, the contract is broken and decisions have to be made.  Hopefully, the parties can, but if not there is always court, where an impartial, disinterested judge, is there to make decisions for the parties that will govern their lives for years to come. 

            The main issues to a divorce are: 1) if there are children, what will be the custodial arrangement and parenting time?  There are also issues of child support and medical care, etc.; 2) division of property both real and personal, real is anything doing with land or attached to land, personal is everything else; division of retirement benefits and alimony considerations, I also lump into this category; 3) division of joint marital debt incurred during the marriage.

            In Utah there are basically three types of custodial arrangements.  First, is sole care custody and control.  This is where all legal decisions and physical custody is vested in one parent.  The other parent usually is awarded standard visitation which is basically a mid-week visit from after school until 8:00 p.m. and every other weekend from a Friday after school until usually 7:00 p.m. on Sundays. 

 

            Next is joint legal custody with one parent being designated as primary physical caretaker.  Joint legal custody is  presumptive now in Utah.  Joint legal custody provides that the parties will confer and discuss major issues involving their children before a decision is made.  These major issues usually fall within the realm of health, education and welfare.  In addition, both parents are to have equal access to school and medical records and to be able to participate in such things as parent teacher conferences, doctor appointments, and extra curricular activities to mention a few.  There is usually a parenting plan which is developed governing conduct of the parties.   

            Last, is joint legal and physical custody.  Physical custody implies that both parents will have the children with them over 112 nights per year. So, joint physical is something as much as 50/50 time to as something that is a little more than standard visitation.  Although, joint physical custody of some type is not presumptive it certainly is becoming the norm.

            There are some nuances to each of these custodial arrangements which go beyond the scope of this article.  This is where an attorney can be most helpful. 

            Child support is a fairly easy calculation.  It is based upon each parties’ gross monthly income and the number of children of the marriage.  This goes to table to determine the amount of support which is then times by each parties percentage contribution to the combined gross income.  You can go to: https://www.utcourts.gov/childsupport/calculator  to get an idea what child support might be in your case.

            Other issues involving the children is medical care and day care.  Medical care is basically defined by statute.  Each party is to be equally responsible for the insurance premium, deductibles, co-pays and other non-insured medical expenses.  Again there are nuances which can be considered in negotiating the final divorce and this where an attorney can be of great service.  Day care is simple.  Parental care is preferred over surrogate (meaning day care centers) care.  If day care is needed which is either educational or work related, each party is responsible for half of the day care expenses.

            The next category is dealing with real property.  Real property acquired during the marriage is subject to being divided equally between the parties.  How this is done is always open for negotiation.  But the basic premise is that any equity is split 50/50 between the parties.  

            Personal property, remember is everything not land or attached to land, is also divided on a fair and equitable basis.  What is fair an equitable depends.  It can mean a 50/50 split of the property or its value or something other than 50/50.  Again this is all open to negotiation.

            Retirement benefits accrued during the marriage are subject to being divided regardless of who is the owner.  Courts use what is commonly referred to as the “Woodward” formula.  It’s kind of complicated but basically any retirement acquired during the marriage is divided equally between the parties.  A Qualified Domestic Relations Order (QDRO) is created and signed by the judge.  The Plan Administrator, upon receipt of the QDRO divides the accounts, pursuant to the terms of the order,  in to two separate accounts.  One for the actual owner of the account and the other for the other spouse. 

            Last issue to address is division of debt.  Utah, once again uses a fair and equitable standard as to the division of debt.  It can mean to divided on a 50/50 basis or something other than that.  Some principles usually apply, for example, debt follows property.  If one party is receiving a car that has a payment, it is generally presumed that person will be responsible for that debt.  There will be obligation for removing the other party from financial responsibility on the car or other property.  This usually requires a refinance within a designated period of time.  Other times debt can be divided by who incurred the debt or in who’s name the debt is listed.  Debt can also be divided on the same basis as child support is calculated.  The court can look at the combined gross income of the parties, determine each part’s percentage contribution to the combined gross income and divide the debt accordingly. 

 

            This article is intended to provide basic information for one going through, faced with or is contemplating a divorce.  It is not intended as giving legal advise and nothing can replace the advice you can receive from a competent experienced attorney who can guide you through these troubled waters.  Divorce is a serious issue and should be contemplated wisely.