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A Guide to Right of Refusal in Utah

Utah’s right of first refusal is a long name for a simple but important concept in child custody cases. Utah courts should assume that parent care is better than non-parent care when making child custody decisions. As a result, the right of first refusal means that if the child’s parent cannot watch the child for more than a specific time period, then the parent must offer care to the other parent. The principle behind Utah’s right of first refusal is that parents should provide as much care for their children as possible. The right of the first refusal becomes an essential issue in many child custody and parent-time order cases and disputes.

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Divorce and the Right to Know: A Legal Guide for Utah Residents

During the divorce process, spouses need to deal with important money matters like child support, alimony, and property division. Individuals who file for divorce in Utah must truthfully and accurately disclose a significant amount of financial information on a detailed legal form called the Financial Declaration. As an individual seeking a divorce, you have a right to know an in-depth accounting of the other spouse’s finances. Dividing the property equitably requires the court to have a detailed knowledge of both spouses’ financial situation.

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December 8, 2021

10 Things to do Before You File for a Divorce

1. Never Threaten to Divorce Until You Are Ready To File
By doing this your partner may start divorce-planning by moving assets, positioning themselves with the children, or hiring an attorney. This could hurt you and/or your partner. Take your time to plan things carefully and then file for divorce when you have your affairs in order.

2. Organize Your Documents
Being organized and efficient will save you money. If you hand over a bunch of messy documents, files, and personal information, your attorney will have to spend more time organizing all that information. This of course means more money to your attorney. Gather every important document that you can find and make copies of each. Look for your past tax returns, bank statements, check registers, investment statements, retirement account statements, employee benefits handbooks, life insurance policies, mortgage documents, financial statements, credit card statements, family trusts, Social Security statements, stock grants, automobile titles, among other documents. If your spouse is self-employed, it is essential to gather as much information as possible about the finances of his or her business. Make copies of any useful financial information stored on your home computer or lying around the house.

3. Make your Children the Focus
Divorce has a major impact divorce has on children, so we advise that you be measured regarding the decisions you make and your behavior throughout the process.Do not involve the children in the battle. Do not talk badly about the other spouse in front of your children, and do not ask them to take sides. It is not fair and will create emotional problems for them. If you are balanced and together, your children will be as well. Plan how you expect to divide the parenting time with the other parent. We can advise on the nuances of raising healthy children through the divorce process.

4. Make Sure You Have Three Months of Financial Resources
Make sure that you have sufficient funds saved to pay for your expenses ideally for at least three months if you are the spouse with limited access to financial resources. Many spouses become spiteful when the divorce starts and may cut you off financially. Although your attorneys can get you financial support, it will take time to do so.

5. Obtain the Best Legal Advice You Can Get
This is not the time to cut corners or to trust everything your spouse tells you. It’s wise to ask friends or family for recommendations. Do your research and read reviews. Research whether your attorney has the skills and reputation to assist you in the divorce. It is critical to have the best representation during this tough time in your life. You should be immediately suspicious if your spouse advises you not to seek legal counsel.

6. Make Sure You Have Available Credit
Apply for your own credit card because your spouse may cut access to your credit card when you file for divorce. Having available credit will allow you to pay for things while your attorneys work to get court orders concerning temporary financial support.

7. Have a Safety Plan If There Is Any History or Risk Of Domestic Violence
Of course we hope it doesn’t happen but violence can escalate when you leave your spouse. However, don’t be encouraged to file a protection order unless it is really necessary. Cases that start out with the filing of a protection order excluding your spouse from the home and children often turn out to be some of the most highly contested cases. Using this as a weapon can sometimes cost you in the long run. Every decision in a divorce will have long-lasting ramifications on your life so you must be sure to obtain the best representation and advice possible. We can help guide you through this thicket of problems.

8. Possession Is 9/10th’s of the Law
Possession can be nine-tenths of the law as to the custody of children. Unless there is a good reason to separate quickly, it is much smarter to remain with possession of the children until you work out a temporary parenting plan. Make sure that you know the children’s teachers, counselors, doctors, and other professionals. The last thing you want is to have the school teacher tell an evaluator that they do not know what you look like and have never met you.

9. Surround Yourself With Supportive Family And Friends
You will need all the help and support you can get. We advise you consider seeing a therapist during and after the divorce.

10. Try to Remain Civil And Treat Your Spouse With Respect
You may have to attend weddings, graduations, and funerals with them in the future. Avoid making statements in anger. Never send emails or text messages when you are angry or upset. These will come back to haunt you in the divorce proceedings. Remember that this will be a tough experience, but you will get through it and will become empowered in the process.

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Utah Child Support Worksheet

In the United States, each state has laws governing how child support should be paid from one parent to another parent. Different states consider different factors when determining how much the parent paying child support will need to pay each month. While every state uses different factors slightly differently, a few significant factors will play a role in calculating child support in Utah. Understanding how child support is calculated will help you defend your right. If you have questions or concerns about how child support will be calculated in your case, we recommend discussing them with one of the experienced Salt Lake City divorce attorneys at Read Law.

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Read Law

Divorce and Non-Disparagement Agreements

We look forward to passing down traditions from one generation to the next as we approach the holidays. Our families will be celebrated, we will embrace togetherness, and we will hope for the future. Unfortunately, for those who have gone through a divorce or are still in the process of getting divorced, the holidays can be difficult. Many parents struggle to adjust to their new reality as single parents. They may try to hold on to traditions or create new ones to meet their new circumstances. Sadly, sometimes holiday gatherings can now feel like an interrogation into their choices, their lives, or even a public bashing of the person they once loved and were married to. (more…)

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Read Law

October 25, 2021

A Guide to Annulment Laws in Utah

In limited circumstances, Utah courts can order an annulment of a marriage. In many respects, seeking an annulment is similar to seeking a divorce, but annulment and divorce are different legal processes. In an annulment, the court states that the marriage never existed in the first place. Annulments are different from divorces, which end a marriage. Utah residents may choose to pursue an annulment rather than a divorce for financial, social, and religious consequences over a divorce. There are many misconceptions surrounding annulments that we hope to clear up in our Utah annulment guide.

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Read Law

October 11, 2021

Are Divorce Laws More Favorable to Women? Setting the Facts Straight

If you are considering getting divorced in Utah, you may be wondering if the divorce laws favor women. Perhaps you have started a business, and you are concerned that your soon-to-be ex-wife will automatically take more of your marital property because she is a woman. Asking whether Utah courts favor women or men in divorce is a legitimate question, but the answer has become muddied by commercial interests. Some law firms spend their entire marketing budget attempting to convince anyone who will listen. They target men in their advertising, claiming that men will never get a fair day in court in divorce and child custody matters. In reality, Utah judges are not allowed to treat women more favorably than men or vice versa when deciding family law matters. Most divorces involve two different key parts — dividing the assets and determining child custody.

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Read Law

What are Fathers’ Rights for Child Visitation in Utah?

In Utah, fathers have rights and privileges, which include being able to spend time with their children through visitation. Husbands are presumed to be the father of any children born to their wives during the marriage. During a divorce, it is necessary for fathers to invoke their rights to enjoy child visitation benefits. Under Utah law, fathers have the exact same rights to child custody and visitation as mothers do. When determining a parenting plan, judges must consider multiple factors and decide what type of plan is in the children’s best interest. 

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October 5, 2021

Understanding and Calculating Alimony in Utah

It’s no surprise that for most couples, a divorce can cause financial instability. To protect under- or unemployed spouses, the court may award alimony, which is a court-ordered payment from a higher-earning spouse to the other during the divorce process and often, for a period after.

Qualifying for Alimony in Utah

Alimony is gender-neutral in Utah, meaning either spouse can request support during the divorce process. When considering a request for alimony, the judge will evaluate the following factors to determine the type, amount, and duration of support:

  • the financial condition and needs of the supported spouse
  • the recipient’s earning capacity or ability to produce income, including an evaluation of whether the recipient lost work experience or skills while caring for the couple’s children
  • the paying spouse’s ability to pay support while maintaining financial independence
  • the length of the marriage
  • whether the recipient is a custodial parent of a child who requires child support
  • whether the recipient worked in a business owned or operated by the paying spouse, and
  • whether the recipient directly contributed to the increase in the paying spouse’s income by paying for education or job training during the marriage. (Utah Code Ann. § 30-3-5 (8).)

In addition to the above factors, the court can also consider a spouse’s fault (or marital misconduct) which caused the breakup of the marriage. In Utah, “fault” may include adultery, physical abuse or threats to the other spouse or children, or undermining the financial stability of the other spouse. It’s important to understand that the court can’t use alimony to punish a misbehaving spouse, so judges use fault in limited circumstances. (Utah Code Ann. § 30-3-5 (8)(b)(c).)

Unlike child support in Utah, there is no formula for judges to use to calculate alimony in a divorce. Instead, judges base support amounts on the above factors and any other relevant circumstances in each case. If you and your spouse would like to maintain control over the alimony order, you can negotiate the terms in a settlement agreement and present it to the judge for approval.

The Marital Standard of Living

The purpose of alimony is for both spouses to maintain a lifestyle as close as possible to the marital standard of living. However, as a general rule in alimony evaluations, judges will look to the standard of living existing at the time of the couple’s separation. In other words, if you lived a lavish lifestyle for the first 5 years of your marriage but downsized and lived on a budget for the last 5, the court will use alimony to ensure you can maintain your current budget and lifestyle.

Duration of Alimony

Sometimes judges will award temporary alimony while the divorce is pending. Orders of temporary support terminate when the judge finalizes the divorce.

For all other alimony orders, the law prohibits the judge from ordering support for longer than the length of the marriage unless the court reviews the order before the termination date and finds extenuating circumstances that require support to continue.

Terminating Alimony in Utah

Typically, the judge will set an end date for alimony in the original order. However, if the supported spouse remarries or dies, alimony terminates automatically. 

It’s no surprise that life goes on after a divorce. But, if the supported spouse begins cohabiting (living with) a new partner, the paying spouse can request termination of alimony. Cohabitation may terminate alimony, but only if you report it to the court and ask for support to end within one year of discovering the cohabitation.

Paying Alimony in Utah

Most alimony payments in Utah are periodic (monthly) and due on the first of every month unless the court orders otherwise. Most judges include an income withholding order for alimony, which directs the paying spouse’s employer to withhold the payments from the employee’s paycheck and forward it directly to the court. If the paying spouse doesn’t have a steady job or is self-employed, the court may order lump-sum payments or payment through property transfer. Lump-sum payments are installments, either one or several over a short period of time. Once you make the final payment, your alimony obligation to your spouse ends.

Property transfers are rare, but helpful in cases where one spouse doesn’t have a steady income but has 

a significant amount of property that will fulfill the support order.

Modifying Alimony Orders

Unless the support order is non-modifiable, either spouse can request a review and modification (change) of an alimony award if there is a substantial and material change in circumstances after the divorce. For example, if a paying spouse is disabled due to an unforeseen health issue and can’t work, the court may adjust or terminate alimony to ensure that both spouses remain financially stable. 

If there’s a change in circumstances that makes it difficult for you to pay support, it is important to request a review as soon as possible, and in the meantime, you must continue to pay. Failure to pay support can result in serious consequences, such as contempt hearings, fines, bank seizures, and in the most severe cases, a jail sentence.

If your spouse isn’t paying support as ordered, you can file a formal petition with the court asking for help enforcing the order.

Taxes and Alimony

If you finalized your divorce on or before December 31, 2018, you can deduct your alimony payments, and your spouse must report and pay taxes on the income. However, for divorces on or after January 1, 2019, changes to the tax law eliminate both the tax deduction benefit and reporting requirements for alimony.

Divorcing couples should consider the tax ramifications for both spouses before finalizing the divorce. If you’re unsure how the new tax law impacts your bottom line, you should speak to an experienced tax professional. If you have more questions regarding divorce and alimony, contact us today!

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Read & Read

August 23, 2021

Estate Planning After Divorce

Estate Planning after Divorce

Divorce can affect many areas of your life, including your estate plan. Fortunately, updating your estate plan after a divorce is a relatively simple process. Best of all, an updated estate plan gives you the peace of mind of knowing that your loved ones will be cared for.

Updating Beneficiary Designations

After your divorce, it is important that you remove your former spouse as a beneficiary on any account, including life insurance, retirement accounts (including 401ks and IRAs), bank accounts, and brokerage accounts. While some beneficiary designations are automatically revoked by Utah law and/or your divorce decree, many retirement accounts are governed by a federal law known as ERISA. Accounts covered by ERISA require payment to the beneficiary listed on the form, even if you are divorced. Make sure that you request a beneficiary change form and submit it as soon as possible. Even if you believe the the beneficiary designation will be revoked automatically, it is a good idea to update it to avoid confusion and express a clear preference.

Power of Attorney and Advance Health Care Directive

Durable Powers of Attorney and Advance Health Care Directives allow you to nominate someone (known as an agent) to act on your behalf in the event you are unable to. Your Durable Power of Attorney is for financial matters, and Advance Health Care Directive is for your health care. Under Utah law, your former spouse will be removed as your agent after a petition for divorce is filed (for a power of attorney) or when the divorce becomes final (for a health care directive). If you have named an alternate agent, they will become your agent. Nevertheless, this is an ideal time to update your power of attorney and health care directive to remove your former spouse entirely. 

Wills and Trusts

Under Utah law, a divorce will revoke all gifts to your former spouse in your will and remove them as your personal representative (also known as an executor). It is important that you update your will to reflect how you would like your assets distributed and name a guardian for your minor children. While it is likely that your former spouse would be their guardian if you pass away, it is a good idea to name a guardian in case your former spouse has also passed away or is deemed unable to care for your children. 

It is also important to update your trust after a divorce. If you have minor children, a trust is generally preferable to a will, since you can nominate a trustee who can manage assets while your child is a minor. If your minor child inherits under a will, a court must nominate a guardian to manage the assets for them until they reach age 18, when they will inherit them outright.  Additionally, a trust allows you to control when you child receives their inheritance. Many parents choose to keep the money in trust until the child reaches a suitable age and give the trustee the authority to make distributions for college tuition or other appropriate expenses.  

Read Law can answer your questions on estate planning after a divorce and help you create a plan tailored to you and your needs.

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