The impending termination of a marriage is one of the most
emotional and challenging events that a person may go through. Many people who are facing the ultimate
demise of a marital relationship have feelings of sadness, frustration, anger, betrayal
and fear. A major contributing factor to
fear is that people don’t know what to expect from the divorce procedure.
Apart from terminating the marriage relationship, there are
additional issues which may need to be addressed in a divorce. These include:
·
Physical and legal custody of minor children
·
Parent-time with minor children
·
Child Support
·
Division of assets accumulated during the
marriage
·
Division of debts accumulated during the
marriage
·
Spousal Support
·
Tax issues
Every divorce matter begins with the filing of a petition for
divorce with the court. In Utah, a party
seeking a divorce (i.e. the petitioner) must file the petition in the county
where either spouse has resided for the three months immediately prior to the
filing. The petition for divorce
identifies the spouses, provides some background information on the marriage
and family, and then makes a request as to how the issues listed above should
be resolved. The petitioner then causes
the petition to be personally delivered to the opposing party, referred to as
the respondent. Upon receiving the
petition, the respondent has 20 days (30 days if the petition was delivered to
the respondent out-of-state) to file a response, called an answer, with the
Court. If the respondent fails to
respond within the appropriate timeframe, the court can award the petitioner
whatever relief was requested in the petition.
Once the divorce case has begun, the issues listed above can
be addressed and resolved by the parties (i.e. the petitioner and the
respondent) through a settlement or they can be decided by a judge through the
process of a trial. Regardless of
whether the parties settle their case or the judge makes a decision, when the
divorcing parties have minor children they must participate in a state-approved
divorce education and orientation course.
This course must be completed before the divorce can be finalized.
One method for settling a divorce case is mediation. In fact, Utah law requires that parties
participate in one mediation session before the judge will make a final ruling
on any disputed matters. Mediation
involves a meeting with neutral third party, oftentimes a former judge or an experienced
attorney who has received extensive training, who helps the parties resolve the
contested issues. If the parties are
able to resolve the case through mediation, a written settlement agreement and other
paperwork are prepared and filed with the court to finalize the divorce
process.
If the parties are unable to resolve their case through
mediation, then the divorce matter moves towards a trial where the judge will
decide the issues based on evidence presented by the parties. Prior to the trial, each party will request
from and share with the other party information and documents in a process
called “discovery.” The discovery
process can be quite extensive, as well as expensive. The purpose of conducting discovery is for
the parties to gather evidence and prepare their case for trial. At the trial, each party will be permitted to
present documents, question witnesses, and argue their case to the judge. Upon hearing all of the evidence, the judge
will decide the outcome of the case.
As you can see, the process can become fairly burdensome
and/or complicated. A skilled attorney will
navigate his or her clients around the pitfalls and mines that are all along
the path of a divorce case. Having an
attorney allows parties to a divorce case to be educated on the process, which
will help to ease their fears and concerns.
Jared G. Brande is a
founding member of the law firm of Gurr & Brande, PLLC in St. George, Utah. Mr. Brande has been practicing family law in
St. George since 2007.
