Divorce – State FAQ – Utah
Residency requirements, venue and procedures
Q: How long must I have lived in Utah prior to filing for divorce in a Utah court?
A: The party filing the divorce action must have been a resident of the State of Utah and a resident of the county where the divorce is filed for at least three months prior to the filing of divorce.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court the case is filed in. In Utah, proper venue for the divorce action is the District Court, although some in some areas a Family Court Division of District Court has been created specifically to hear such matters.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Petition for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: In Utah, there is a waiting period of ninety (90) days after the filing of the divorce action before a Decree of Divorce will be granted.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Utah. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Utah?
A: Utah law provides permits no-fault divorces to be granted based upon irreconcilable differences between the parties, and also grants divorces based upon the following:
1. Impotency of the respondent at the time the marriage was contracted;
2. Adultery committed by the respondent;
3. Willful desertion of the petitioner by the respondent for a period of more than one year;
4. Willful neglect of the respondent to provide the petitioner with the common necessities of life;
5. Habitual drunkenness of the respondent;
6. A felony conviction of the respondent;
7. Cruel and inhumane treatment of the petitioner causing bodily injury or great mental distress;
8. Incurable insanity, or;
9. When husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
Q: On what basis does the court decide how marital property is divided?
A: Utah is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: The court may order either party to pay the other alimony after consideration of the following factors:
1. The financial condition and needs of the recipient spouse;
2. The recipient’s earning capacity or ability to produce income;
3. The ability of the payor spouse to provide support;
4. The length 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;
7. Whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage, and
8. The court may consider the fault of the parties in determining alimony.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: In determining custody, the court shall consider the best interests of the child and the past conduct and demonstrated moral standards of each of the parties. The court may inquire of the children and take into consideration the children’s desires regarding future custody or visitation schedules, but the expressed desires are not controlling and the court may determine the children’s custody or visitation otherwise. In awarding custody, the court shall consider, among other factors the court finds relevant, which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the non custodial parent as the court finds appropriate.
Q: Do grandparents in the state of Utah have visitation rights with their grandchildren?
A: Yes. Grandparents have standing to bring an action in district court by petition, requesting visitation in accordance with the provisions and requirements of this section. Grandparents may also file a petition for visitation rights in a pending divorce proceeding or other proceeding involving custody and visitation issues where the following factors will be considered:
a. the petitioner is a fit and proper person to have visitation with the grandchild;
b. visitation with the grandchild has been denied or unreasonably limited;
c. the parent is unfit or incompetent;
d. the petitioner has acted as the grandchild’s custodian or caregiver, or otherwise has had a substantial relationship with the grandchild, and the loss or cessation of that relationship is likely to cause harm to the grandchild;
e. the petitioner’s child, who is a parent of the grandchild, has died, or has become a non custodial parent through divorce or legal separation;
f. the petitioner’s child, who is a parent of the grandchild, has been missing for an extended period of time; or
g. visitation is in the best interest of the grandchild. 30-5-2
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Utah has enacted child support guidelines which establish the amount of support which is presumed correct. The court may deviate from the guidelines upon a showing that the application of the guidelines would be unjust or inappropriate under the particular circumstances of the case. Factors the court will consider when determining whether deviation from the guidelines is warranted include:
1. The standard of living 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 child;
5. The ages of the parents and child;
6. Any other existing support obligation for others not of the marriage.