James R. Balmforth: Family Law In UT

In Utah, domestic violence means any criminal offense involving physical harm (or the threat of physical harm), or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm, when committed by one cohabitant against another. A cohabitant can only be someone who is at least 16 years old (or is emancipated) who:
• Is or was a spouse of the other party
• Is or was living as if a spouse of the other party
• Is related by blood or marriage to the other party
• Has or had one or more children in common with the other party
• Is the biological parent of the other party’s unborn child, or
• Resides or has resided in the same residence as the other party
However, cohabitants don’t include parents and their children, or siblings who are less than 18 years old.

Child Custody and Domestic Violence

When parents decide to get a divorce, the custody arrangement for their children can either be determined mutually by the parents or, if the parents can’t reach an agreement, by the court. When determining the future care and custody of a child the court considers the best interests of the child. Custody matters can become complicated when one parent alleges that the other has committed domestic violence in the past. In ordinary cases there is a rebuttable presumption that joint legal custody is in the best interest of the child, however, this presumption is overcome if there is domestic violence in the home or in the presence of the child. The following chart outlines how a family law court designs parenting plans in Utah when domestic violence has been committed within the family. During marriage, couples acquire the rights to some of the property and assets, as well as debts, acquired by one or both of them. Marital property doesn’t include things that are considered “separate property” owned by either spouse, for example, property owned before marriage, inheritance, gifts, property specifically excluded by valid prenuptial agreements, and property gained after legally separating. In addition, keep in mind that you are also on the hook still for your separate debts from before marriage.

There are two ways states divide marital property:
• equitable distribution and
• Community property.
Utah is an equitable distribution or common law state, which is the majority marital property legal system. However, large numbers of people, especially in the Western U.S., live in community property states. This means marital property in Utah isn’t automatically assumed to be owned by both spouses and therefore should be divided equally in a divorce. In Utah, marital property is divided “equitably” or fairly, which may not be an even 50-50. Usually for longer marriages, it is about 50% to each party. For short-term marriages, the court generally puts people back to their position before the marriage, such as giving people what they had before the marriage and typically what they made during the marriage. Parties can agree on how they want to divide the property outside of court, but a judge will review it to ensure it’s fair.

Community Property: Utah is an equitable distribution state that doesn’t have community property laws. However, Utah has enacted the Uniform Disposition of Community Property Rights at Death Act (UDCPRDA). The UCDPRDA allows a person who lived in a state with community property for its marital property laws (such as Nevada and Idaho) and then moved to a state without community property (namely, Utah) to not lose any pre-existing property rights.

Utah Marriage Age Requirements Laws

Each state regulates marriage. Adult couples can decide whether or when to marry, including gay and lesbian couples where same-sex marriage has been legalized, which includes Utah since October 2014. However, if under the legal age of adulthood in a state, parents, guardians, or the court, in some situations, must provide permission for a child to marry. Even then, there’s usually a minimum age to prevent very young children from marrying. Some states, including Utah, require premarital counselling. Utah encourages the use of premarital counselling by persons seeking to marry who are under 19 years old or who’ve been previously divorced. Depending on which county in Utah you live in, premarital counselling may be a prerequisite for getting a marriage license. Minimum Legal Age without Parental Consent of both men and women who are at least 18 years old can legally marry in Utah without the permission of anyone else, including parents or religious leaders.

Minimum Legal Age with Parental Consent of Teenage boys and girls who are at least 16 years old, but are not yet 18 years old can get married in Utah with the consent of their parents or guardians.

Who must consent depends on the youth’s circumstances:
• If the child’s parents are married, either parent can sign consent to the marriage
• If the parents are divorced and only one parent has legal custody, then he or she must consent to the marriage
• If the parents are divorced and both have joint custody, then the parent with physical custody the majority of the time must consent
• If the child lives with a guardian rather than parents, the guardian must provide proof of guardianship and sign consent to the marriage

Minimum Age for First Cousin Marriage Utah permits first cousins to marry as long as both parties are at least 65 years old, or both parties are at least 55 years old and the local district court has determined that either party is unable to reproduce. In order to get legally married in Utah a couple must have a valid marriage license and have the marriage solemnized. Marriage licenses in Utah are issued by the county clerk where you intend to get married. In order to apply for a marriage license, both parties must be present and provide the following information and documentation to the clerk:
• Full name, address, and date and place of birth of both parties
• Both parties’ social security cards (unless a party doesn’t have a social security number)
• The names and birth places of both parties’ parents (including their mothers’ maiden name)
• A valid picture ID for both parties (such as a passport, birth certificate, drivers license, or state ID card), and
• A license fee (most counties charge a fee)
Family law courts in Utah determine how much child support a non-custodial parent (a parent who doesn’t live with their minor child) is required to pay by using the state’s child support guidelines. These guidelines take into consideration both parents’ gross incomes and the number of children that they have together. The court will follow the child support guidelines unless there is substantial evidence to rebut the guidelines. In order to determine whether or not to deviate from the guidelines the court will consider:
• The standard of living of the parents
• The relative wealth and income of the parents
• The ability of the non-custodial parent to earn
• The ability of the custodial parent to earn
• The ability of an incapacitated adult child to earn, or other benefits received by an adult child
• The needs of the custodial parent, the non-custodial parent, and the child
• The ages of the parties, and
• The responsibilities of the custodial parent and the non-custodial parent for the support of others
Gross income includes perspective income from any source. For example: salaries, wages, commissions, royalties, bonuses, rents, gifts, prizes, dividends, severance pay, interest, alimony from a previous marriage, Social Security benefits, etc. Gross income doesn’t include means-tested welfare benefits that a parent receives. Adjusted gross income is calculated by subtracting alimony previously ordered and paid and child support previously ordered from the parent’s gross income.
Each parent’s child support obligation is established in proportion to their adjusted gross incomes by following these steps:
• Step 1: Combine the adjusted gross incomes of the parents
• Step 2: Look up the base combined child support obligation using this chart
• Step 3: Take the appropriate figure from the chart and multiply it by each parent’s percentage of the combined adjusted gross income
The court won’t follow the child support guidelines above if: The parents have joint physical custody or split custody, or the non-custodial parent’s adjusted gross income is $1,050 or less per month Imputed Income
In Utah, if a parent is unemployed or underemployed the court may impute an income on the parent in order to perform the child support calculations in the chart above. Imputed income is based on employment potential and probable earnings. This figure is calculated from employment opportunities, work history, occupation qualifications, and prevailing earnings for people of similar backgrounds in the community. If a parent doesn’t have recent work history, or if their occupation is unknown, then the court can impute income on the parent at the federal minimum wage for a 40-hour workweek. However, income can’t be imputed if any of the following conditions exist (and aren’t temporary in nature):

• The reasonable costs of child care for the parents’ minor children equals the amount of income that the custodial parent can earn
• A parent is physically or mentally unable to earn the minimum wage, or
• The unusual emotional or physical needs of a child requires the custodial parent to stay home and care for them

Utah Child Abuse Laws

Criminal statutes are in place to keep people safe. Utah’s child abuse laws are designed to protect children from harm by prohibiting the physical, emotional, and sexual abuse of children. These child abuse statutes assist in prosecuting child abusers and mandate certain third parties and professionals with access to children to report knowledge or suspicion of child abuse to the authorities. Utah’s Department of Child and Family Services also provides resources state-wide to protect the welfare of children.

Utah Child Custody Laws

When a couple with children breaks up, the responsibility to care for the children must be shared by both parents. An important aspect is child custody or with whom the child will live with and what visitation with the other parent will be like. Another part of this responsibility is financial support, in the form of child support. Utah family courts, like those in most states, determine child custody matters using the “best interests of the child.” The factors considered by the judge include:
• Past conduct and demonstrated moral standards of the parties
• Parent most likely to act in the best interest of the child, including allowing child frequent contact with non-custodial parent
• Bonding between each parent and the child
• If a parent has intentionally exposed the child to pornography or other harmful sexual-related materials
• Physical, psychological, and emotional needs of the child
• Both parent’s ability to reach shared decisions for the child and prioritize the child’s welfare
• If both parents participated in raising the child before the divorce
• The geographic proximity of the parents’ homes
• The child’s preferences
• Parents ability to protect child from their conflict
• Past and present ability to cooperate with each other in parenting and making decisions
• Any history of child abuse, domestic violence, or kidnapping
• Any other relevant factors
When parents can’t develop their own parenting schedule, the court can establish an appropriate schedule more or less than the statutory minimum parent-time based on the following best interest of the child factors:
• How parent-time would negative impact child’s physical health and emotional development
• Distance between child’s home and the non-custodial parent’s home
• Allegations of child abuse
• Lack of demonstrated parenting skills when there’s no safeguards to ensure child’s safety
• Financial inability of non-custodial parent to provide food and shelter during parent-time
• Child’s preference, if sufficiently mature
• Parent’s incarceration
• Shared interests of the child and non-custodial parent
• Non-custodial parent’s involvement in the child’s school, community, religious, or other related activities
• Non-custodial parent’s availability to care for the child when the custodial parent is working or has other obligations
• Chronic pattern of missing, cancelling or denying regularly scheduled parenting time
• Parent-time schedule of siblings
• Lack of reasonable alternatives for nursing child
• Any other criteria the court feels is relevant to the best interests of the child

How Can a Family Law Attorney Help Represent Your Case?

Divorce and all legal issues associated with this pivotal life event can be resolved through negotiation, mediation and dynamic representation in trial. Legal elements connected to divorce include custody, visitation and asset and property division. Family Attorney can help you with a number of issues related to family law including, but not limited to:
• Asset and property division is a fair and just distribution of marital property and debts.
• Child Custody includes disputed cases. In sole physical custody the most able parent, best equipped to provide a safe, stable and healthy environment is selected. Visitation can be a part of this to help the noncustodial parent continue a relationship with the child.
• Shared custody means that both parents demonstrate the ability to cooperate and communicate in sharing responsibility for a child.
• Visitation involves the creation of comprehensive parenting plans suited to individual family circumstances. They protect your children’s well-being and your vital relationship with them.
• Child support Utah courts recommend that you consult an attorney about child support. This is because calculating child support can be very complicated. It’s possible to limit your consultation to this or other aspects of your case.
• Protection orders are often necessitated when domestic violence is threatened. They may also be requested by a party seeking to gain an advantage in a custody dispute.
• Adoption and guardianship are alternatives that enable other responsible caregivers such as stepparents and grandparents the legal right to make important decisions regarding the welfare and protection of children.
• Paternity actions can be made on behalf of either a mother or father who chooses to take responsibility and seeks to claim custody or visitation rights.
• Prenuptual and Postnuptual Agreements can not only help protect assets, but it can also help clarify any debt issues. We live in a time when divorce is more common, it is always wise to be informed.
• Mediation is required by Utah Law for Divorcing Spouses
• Divorce Modification is the legal process of amending a divorce order issued by a court.
• Virtual Visitation is a broad phrase that refers to any use of technology that a parent uses to keep in contact with his or her child.
• Parental Kidnapping or parental abduction is defined as the concealment, taking, or retention of a child by his parent in violation of the rights of the child’s other parent or another family member.
• Grandparent’s Rights – Grandparents are heavily involved in child rearing in many families, sometimes as the primary caretakers.
Under Utah divorce law, individuals that wish to end their marriage can do so on either fault or no-fault grounds. No-fault based divorces are the most common in Utah and are normally much faster and less expensive than proving a fault based divorce. The requirements for a no-fault divorce in Utah are particularly stringent when compared to other states and can be found here at Title 30 Chapter 3 Section 1 of the Utah Code. A no fault divorce is found under Utah Code 30-3-1(3)(h) where it states: “irreconcilable differences of the marriage.” This essentially means that the marriage did not work out and neither spouse is placing blame on the other or saying that one person did something to cause the divorce. While proving irreconcilable differences may be enough to receive a no-fault divorce award, the divorcing couples can also receive a no-fault divorce if they have lived separate and apart for at least three years, while other states typically require between 3-18 months of living separate and apart. This is found in Utah Code 30-3-1(3) (j): “ when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.” If a no-fault divorce is not possible, a fault divorce can be granted one of the following grounds are proven with evidence and testimony before a Utah divorce judge: Grounds for divorce:
• Impotency of the respondent at the time of marriage;
• Adultery committed by the respondent subsequent to marriage;
• Wilful desertion of the petitioner by the respondent for more than one year;
• wilful neglect of the respondent to provide for the petitioner the common necessaries of life;
• habitual drunkenness of the respondent;
• conviction of the respondent for a felony;
• cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
• irreconcilable differences of the marriage;
• incurable insanity; or
• when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.

Family Law Attorney Free Consultation

When you need legal help with family law in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you. We can help you with: