Posted by DivorceLine in Utah Divorce Procedures
Complete overview of Utah divorce laws for people considering a Utah divorce or filing a Utah divorce with issues to be resolved about child custody, child support, visitation and alimony.
Utah Divorce Residency Requirements
In order to file your Petition for Divorce in Utah, you must make sure the District Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Utah residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:
The court may decree a dissolution of the marriage contract between the petitioner and respondent where the petitioner or respondent has been an actual and bona fide resident for 3 months of this state and of the county where the action is brought. This also applys to members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders.
Unless the court, for good cause shown and set forth in the findings, otherwise orders, no hearing for decree of divorce shall be held by the court until 90 days shall have elapsed from the filing of the complaint, provided the court may make such interim orders as may be just and equitable.
The 90-day period shall not apply in any case where both parties have completed the mandatory educational course for divorcing parents.
The divorce is typically filed with in county in which the filing spouse resides. (Utah Code – Sections: 30-3-1, 30-3-18).
Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Utah. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Utah residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.
Utah Grounds for Divorce
The Petition for Divorce is the initial document filed with the Utah court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.
The court may decree a dissolution of the marriage according to one of the following grounds:
No-Fault Based Grounds:
(a) irreconcilable differences of the marriage; or living separate and apart without cohabitation for at least 3 years.
Fault Based Grounds:
(a) impotence at the time of the marriage; (b) adultery; (c) willful desertion for at least one year; (d) willful neglect of the respondent to provide for the petitioner the common necessaries of life; (e) habitual drunkenness of the respondent; (f) felony conviction; (g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner; (i) incurable insanity. (Utah Code – Sections: 30-3-1)
Every divorce case that is filed in the state of Utah must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.
Utah Uncontested Divorce
This information is an overview of the uncontested Utah divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Utah.
To file for a divorce in Utah, a spouse must be a resident of the state (or a member of the military stationed in the state) and a resident of the county of filing for more than three months immediately prior to starting the action. In addition, there is a 90-day waiting period after the filing before the divorce can be granted.
Grounds for divorce are No-Fault, which means 1) “[i]irreconcilable differences of the marriage” or 2) “living separate and apart without cohabitation for three years under a judicial separation.”
General grounds include 1) impotence, 2) adultery, 3) conviction of a felony, 4) willful desertion for a year, 5) cruel and inhuman treatment, 6) willful neglect, 7) incurable insanity, and 
habitual drunkenness.
Actions are filed in the District Court of the county. The filing spouse is called the Petitioner; the responding spouse is called the Respondent.
Grounds for a legal separation are 1) willful desertion, 2) living separate and apart without cohabitation, and 3) gross neglect. The deserting spouse must be a resident of Utah, or he or she must own property in the state in which the victim spouse lives.
In the case of an uncontested divorce, a hearing may be held before a court commissioner. In these cases, a divorce cannot be granted upon default; legal evidence and testimony must be taken in every case. When one party does default, the evidence may be contained in an affidavit submitted by the Petitioner.
To begin an uncontested divorce, the Petitioner must file the following forms:
> A Utah Courts Cover Sheet for Civil Actions, which identifies the parties and the type of action;
> A Certificate of Divorce, Dissolution or Annulment, which is used for statistical purposes;
> An Affidavit of Military Service, which asserts the Petitioner’s claims that the Respondent is not in the military (and, therefore, enjoys no protections from civil litigation under the Servicemembers’ Civil Relief Act);
> An Order Regarding the Respondent’s Military Service, which establishes the Petitioner made reasonable efforts to establish the military status of the Respondent;
> A Verified Petition for Divorce, which identifies the parties and states the grounds for divorce and the relief sought;
> A Motion and Affidavit and Application for Waiver of Court Fees, which is filed only when the fees in the action are a burden;
After the above documents have been filed, the Petitioner must serve the Respondent with a Verified Petition for Divorce as well as the following;
> An Acceptance of Service, Appearance, Consent and Waiver, which the Respondent signs and returns to the Petitioner when he or she agrees with the terms and conditions in the Petition;
> The Respondent’s Military Service Affidavit, which establishes that the Respondent is not in the military, or waives his or her rights to any protection under the Civil Relief Act and which is returned to the Petitioner.
By signing the Acceptance of Service, Appearance, Consent and Waiver, the Respondent 1) enters his appearance, 2) consents to the personal jurisdiction of the courts, 3) waives the statutory time to answer or respond and 4) consents to a Default Judgment.
If the Respondent will not sign the Acceptance of Service, Appearance, Consent and Waiver, the Petitioner must serve him or her. When the action moves along this route, the Respondent must be served the Petition with a Summons, which gives the Respondent 20 days, if in the state of Utah, and 30 days, if outside the state, to file and answer if he or she wishes to dispute the action. When this happens, the divorce papers are served by Certified Mail, Return Receipt Requested, and the green postal card, signed by the Respondent, is the Proof of Service by Mail, after which the Plaintiff must file an Affidavit of Mailing, which documents the mailing of the divorce papers.
If the Respondent cannot or will not be located, the Petitioner must file the following:
> A Motion for Alternative Service, which asks the court for permission to serve process by alternative means;
> Affidavit for Alternative Service, which documents the Petitioner’s efforts at locating the missing spouse;
> An Order for Service by Alternative Service, which is the court’s approval for alternative service.
Alternative service means service by publication in a newspaper.
When minor children are involved in the divorce, the Respondent is also served a Notice of Divorce Education Requirement. Both the mother and father receive and file a Divorce Education Certificate, after attending a parenting class or viewing a parenting video.
In addition, the following forms must be filed:
> Child Support Obligation Worksheets, which describe the terms and conditions of child support (sole custody, joint physical custody or split custody);
> An Affidavit of Income Verification and Compliance with Child Support Guidelines, which includes a Verification of both the Petitioner’s and Respondent’s Income through pay stubs and latest income tax returns;
> A Petitioner’s Affidavit of Respondent’s Earnings, which is used only when the Respondent refuses to provide income verification documents.
When the Respondent 1) agrees to the divorce and its terms and conditions and has signed the Acceptance of Service, Appearance, Consent and Waiver, or 2) fails to respond to the Petition in 30 days when he or she is served, the Petitioner files the following:
> A Motion for Entry of a Default Certificate, which documents that the action may move by default; and
> A Default Certificate, which certifies the default and allows the action to move forward.
To bring the divorce to a conclusion, the Petitioner must also file the following:
> An Affidavit of Jurisdiction and Grounds for Divorce, which documents the legitimacy of the action and its grounds;
> Notice to Submit for Entry of Decree of Divorce, which certifies that all the necessary filing steps have been taken;
> Finding of Fact and Conclusions of Law, which establishes the court’s evaluation of the case;
> A Decree of Divorce, which when signed ends the marriage.
If the Respondent files an Answer or makes a counterclaim, the divorce becomes contested and moves along a difference trajectory.
Utah Simplified Divorce Procedures
Uncontested divorce hearings may be held before a court commissioner. However, a divorce cannot be granted upon default, and legal evidence and testimony must be taken in every divorce case. However, in a default case, the evidence may be contained in an affidavit of the petitioner. In addition, a sample Petition for Divorce is contained in Utah Rules of Civil Procedure, Appendix of Forms, Form #18. Finally, a financial verification form is also required in child support cases. [Utah Code Annotated; Sections 30-3-4, 78-3-3.1, and 78-45-7.5(5), Utah Rules of Civil Procedure, Appendix of Forms, and the Utah Rules of the Judicial Council].
Each state has its own unique filing procedure. When filing for divorce in Utah, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Utah Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Utah Laws and the filing requirements.
Utah Property Division Factors
In Utah, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the District Court within the Decree of Divorce.
Utah is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the District Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the District Court to be fair.
Marital property is divided equitably upon divorce. The court will examine each case on an individual basis and determined an appropriate property award based on what is fair to each spouse.
The spouses are not personally liable for the separate debts, obligations, or liabilities of the other: (1) contracted or incurred before marriage; (2) contracted or incurred during marriage, except family expenses; (3) contracted or incurred after divorce or an order for separate maintenance under this title, except the spouse is personally liable for that portion of the expenses incurred on behalf of a minor child for reasonable and necessary medical and dental expenses, and other similar necessities. (Utah Code – Sections: 30-3-5, 30-3-12)
Since Utah is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.
Utah Spousal Support/Maintenance/Alimony Factors
In Utah the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the District Court will order support from one spouse to the other on a case-by-case basis as follows:
The court shall consider at least the following factors in determining the length of time and amount of alimony to be awarded: (1) the financial condition and needs of the recipient spouse; (2) the earning capacity or income potential; (3) the reasonability of the paying spouse to pay; (4) the duration of the marriage; (5) whether the recipient spouse has custody of minor children requiring support; (6) whether the recipient spouse worked in a business owned or operated by the payor spouse; and (7) whether the desiring spouse contributed to the earning capacity of the paying spouse. The court may consider the marital misconduct of the parties in determining alimony. (Utah Code – Sections: 30-3-3, 30-3-5).
Utah Child Custody Factors
In Utah, the primary factors the court will consider when making a child custody and visitation award are:
(1) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
(2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
(3) whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
(4) whether both parents participated in raising the child before the divorce;
(5) the geographical proximity of the homes of the parents;
(6) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
(7) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
(8) the past and present ability of the parents to cooperate with each other and make decisions jointly;
(9) any history of, or potential for, child abuse, spouse abuse, or kidnaping; and (10) any other factors the court finds relevant. (Utah Code – Sections: 30-2-10, 30-3-5, 30-3-10).
In Utah, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.
Utah Child Support Factors
Either or both parents may be ordered to provide child support, including medical and dental expenses and health insurance. The court may also order the non-custodial parent to provide daycare and childcare expenses while the custodial parent is at work or undergoing training. Income withholding may be ordered by a court to guarantee any child support payments. There are official Child Support Guidelines. These guidelines are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances in a case. Factors for consideration in awarding support amounts outside the guidelines are: (1) the standard of living and situation of the parties; (2) the relative wealth and income of the parties; (3) the earning abilities of the parents; (4) the needs of the parents and the child: (5) the ages of the parents and the child: and (6) the responsibilities of the parents for the support of others. A child support worksheet is contained in the statute. In addition, a financial verification form is also required. [Utah Code Annotated; Sections 30-3-5, 30-3-5.1, and 78-45-7 to 78-45-7.5].
Utah child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Utah child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Utah child support deviation factors that may be applicable to the situation.
Utah Grandparent’s Rights
Grandparent Rights to Visitation: Visitation may be granted if the grandparent’s child is dead or if the child’s parents are divorced or legally separated. The visitation must also be found to be in the best interest of the child. Title 30, Chapter 5, Section 30-5-1 (U.C. §30-5-1 et seq.). (See also U.C. §30-3-5.)
When Adoption Occurs: Adoption terminates all rights.
Child Custody Statutes: Best interest of child considering (1) past conduct and demonstrated moral standards of the parties; (2) child’swishes; (3) which party ismost likely to act in the child’sbest interest, including allowingcontact with the other party; and (4) any other relevant factor. U.C. §30-3-10.
Parents May Choose: Yes
Utah Military Divorce Laws
A Utah military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From Utah Divorce Proceedings
There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Utah court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Utah court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements
The typical military divorce filing requirements are as follows:
- You or your spouse must reside in Utah
- You or your spouse must be stationed in Utah
Grounds for Utah Military Divorce
The grounds for a military divorce in Utah are the same as a civilian divorce.
Dividing the Property
Along with the normal Utah property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In Utah, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Utah child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.
Utah Child Support Guidelines
The Utah child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Utah child support order.
Utah Child Support Guidelines
Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: NO
UIFSA: YES
* The Income Shares Model: Utah child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Utah child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.
For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.
As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.
For example: It is not common for a custodial parent to be paying support to a non-custodial parent.
Utah Child Support Definitions
Definition of Gross Income.
(a) prospective income from any source, including nonearned sources, except under Subsection (3); and
(b) income from salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment compensation, disability insurance benefits, and payments from “nonmeans-tested” government programs.
(2) Income from earned income sources is limited to the equivalent of one full-time 40-hour job. However, if and only if during the time prior to the original support order, the parent normally and consistently worked more than 40 hours at his job, the court may consider this extra time as a pattern in calculating the parent’s ability to provide child support.
(3) Specifically excluded from gross income are:
(a) cash assistance provided under Title 35A, Chapter 3, Part 3, Family Employment Program;
(b) benefits received under a housing subsidy program, the Job Training Partnership Act, Supplemental Security Income, Social Security Disability Insurance, Medicaid, Food Stamps, or General Assistance; and
(c) other similar means-tested welfare benefits received by a parent.
(4) (a) Gross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. The income and expenses from self-employment or operation of a business shall be reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support award. Only those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.
(b) Gross income determined under this subsection may differ from the amount of business income determined for tax purposes.
(5) (a) When possible, gross income should first be computed on an annual basis and then recalculated to determine the average gross monthly income.
(b) Each parent shall provide verification of current income. Each parent shall provide year-to-date pay stubs or employer statements and complete copies of tax returns from at least the most recent year unless the court finds the verification is not reasonably available. Verification of income from records maintained by the Department of Workforce Services may be substituted for pay stubs, employer statements, and income tax returns.
(c) Historical and current earnings shall be used to determine whether an underemployment or overemployment situation exists.
(6) Gross income includes income imputed to the parent under Subsection (7).
(7) (a) Income may not be imputed to a parent unless the parent stipulates to the amount imputed or a hearing is held and a finding made that the parent is voluntarily unemployed or underemployed.
(b) If income is imputed to a parent, the income shall be based upon employment potential and probable earnings as derived from work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community.
(c) If a parent has no recent work history, income shall be imputed at least at the federal minimum wage for a 40-hour work week. To impute a greater income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.
(d) Income may not be imputed if any of the following conditions exist:
(i) the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;
(ii) a parent is physically or mentally disabled to the extent he cannot earn minimum wage;
(iii) a parent is engaged in career or occupational training to establish basic job skills; or
(iv) unusual emotional or physical needs of a child require the custodial parent’s presence in the home.
(8) (a) Gross income may not include the earnings of a minor child who is the subject of a child support award nor benefits to a minor child in the child’s own right such as Supplemental Security Income.
(b) Social Security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent. Other unearned income of a child may be considered as income to a parent depending upon the circumstances of each case.
Utah Divorce Definitions
This collection of definitions will help clarify some unique characteristics to the Utah Divorce laws, process and paperwork which is filed with the court.
Filing Party Title:
Petitioner
The spouse who will initiate the Divorce by filing the required paperwork with the court.
Non-Filing Party Title:
Respondent
The spouse who does not initiate the Divorce with the court.
Court Name:
In the District Court of the __________ Judicial District, in and for ___________ County, State of Utah
The proper name of the court in which a Divorce is filed in the state of Utah. Each jurisdictional court typically has a domestic relations or a family law department or division.
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
Document Introduction:
In Re the Marriage of:
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.
Initial Divorce Document:
Verified Petition for Divorce
The title and name of the legal document that will initiate the Utah Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.
Final Divorce Document:
Decree of Divorce and Judgment
The title and name of the legal document that will finalize the Utah Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
Clerk’s Office Name:
District Clerk’s Office
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
Legal Separation:
The grounds for legal separation are: (1) willful desertion; (2) living separate and apart without cohabitation; and (3) gross neglect. The deserting spouse must be a resident of Utah, or own property in the state in which the deserted spouse lives. [Utah Code Annotated; Section 30-4-1].
Property Distribution:
Equitable Distribution
The applicable Utah law that will dictate how property and debt is to be divided upon Divorce.
