Many of the clients who schedule initial consultations have not made the decision to divorce yet. Often, the client or the client’s spouse has brought up the topic of divorce and my client simply wants to know what his or her options are in the event the couple decides to divorce. Here are answers to the most frequently asked questions
1. How much will my divorce cost me?
This question is a difficult one to answer because it depends upon whether the spouses are in agreement on the issues relating to the children, financial support, and division of the assets and property acquired by the spouses. If the spouses have worked out the terms of their divorce and only need an attorney to draft up the documents, the cost can be as low as $1,500 to $3,000 including the court fees to file for divorce. If it is a contested divorce, meaning the spouses have significant disagreements on the issues of custody, parent-time, child support, alimony, and property division, then it can cost significantly more. Anywhere from $10,000 to $50,000 or more.
The cost of the divorce really depends on how much the spouses agree upon, the complexity of the marital estate, and whether the spouses retain attorneys who are committed to resolving their clients’ disputes outside of the court system. A spouse contemplating divorce often thinks she needs a bulldog attorney to fight for what she is entitled to but bulldog attorneys often fight for the sake of fighting and that only means increased legal fees. Finding an attorney who is committed to helping you work through your disputes collaboratively and amicably (e.g., collaborative divorce, mediation, or negotiated settlement) will not only save the spouses significant money in legal fees but also minimize the trauma on the family.
2. What are the legal grounds of divorce?
Utah is a no-fault state, meaning that spouses can get divorced on the grounds of irreconcilable differences. This is the most common legal ground for divorce since you are not required to prove anything. Irreconcilable differences mean that the marriage relationship has broken down, the spouses have tried to work through their issues, have been unable to successfully repair the damage, and no longer wish to be married. Other legal grounds for divorce include adultery, willful desertion for more than a year, willful neglect, habitual drunkenness, cruel to the extent of causing bodily injury or great mental distress, or when the spouses have lived separately under a decree of separate maintenance for three consecutive years without cohabitation. If a petition for divorce is filed on legal grounds other than irreconcilable differences, evidence must be provided to the court proving the grounds of divorce. For this reason, almost all divorces are sought based on irreconcilable differences, because nothing needs to be proven.
3. Is there an advantage to file for divorce first?
The simple answer is no, there is no advantage to the spouse filing for divorce first. The spouse who files for divorce is called the petitioner. The spouse who is served papers of divorce is called the respondent. Being the petitioner, or the spouse who files for divorce first, simply means that if the spouses require a judge to make a decision at trial then the petitioner gets to present his or her case first. The petitioner is in the position to present her position and “narrative” of the divorce first. However, the respondent gets to present his or her case afterward and so will be the last position and “narrative” of the divorce that the judge hears. The majority of divorces resolve without a trial so there really is no advantage to being the first spouse to file.
4. If my spouse and I have things worked out already, do I have to hire an attorney?
The Utah courts provide an online option that allows divorcing spouses to prepare their own legal paperwork to divorce. However, the language in the court forms is boilerplate and often spouses do not know how or where to insert the terms of their divorce settlement. If spouses attempt to be creative in their resolution, it more often than not creates conflicting or ambiguous provisions within the final decree of divorce. These conflicting provisions create future conflict and varying interpretations between the divorced spouses. This often results in significantly more legal fees to hire an attorney to correct the errors (e.g. tens of thousands of dollars) than if the parties had retained an attorney to draft the initial settlement agreement and final divorce documents.
5. How does the divorce process start?
A divorce proceeding begins with one party filing a petition for divorce in the Utah court system. The other spouse must then be personally served a copy of the petition for divorce by a constable or process server or accept service of the petition for divorce to avoid having to be personally served the divorce papers.
6. How long does the divorce process take in Utah?
The answer depends upon whether the divorcing couple has settled on the terms of their divorce relative to custody, parent-time, child support, alimony, and the division of the couple’s assets and debts. There is a minimum 30 day waiting period in Utah meaning a Utah judge cannot sign a decree of divorce within 30 days of a petition for divorce being filed. One of the spouses can request the court waive the 30 day waiting period for extraordinary circumstances.
If the couple has minor children under the age of 18, a judge cannot sign a decree of divorce until each spouse attends the mandatory educational course and the mandatory orientation course for divorcing parents. The courses can be taken online or in person. More information can be found at https://www.utcourts.gov/specproj/dived/.
7. What if my spouse wants a divorce but I don’t? Can I stop the divorce?
So long as one spouse wants a divorce, the other spouse cannot stop the divorce from happening.
Understanding the options you have in divorce is important. Finding the right attorney will also significantly impact how the divorce will proceed. If you have more questions, feel free to contact Diana Telfer, Clyde Snow’s Family Law Practice Group Co-Chair at (801)322-2516.