Diana Telfer

Our Utah legislature was busy this past 2024 session re-numbering the entire family law related statutes.  Here’s a chart for easy reference to understand how and when alimony is determined.  Any substantive changes are in red and become effective as of September 1, 2024.

The purpose of alimony is to avoid a significant disparity between the parties’ lifestyles after their divorce.  Alimony is one of the most challenging and complex issues in a divorce because the factors can be quite subjective.  Over the past 19 years, I have expertly guided numerous clients through the complexities of alimony disputes, utilizing a range of strategic tools and solutions to achieve favorable outcomes without the need for court intervention.

For more information on alimony, feel free to contact me at (801)464-4004. 

I was raised to work. My father’s mentality was “God helps those that help themselves.” While my childhood friends enjoyed watching Saturday morning cartoons, I had my weekly chores to complete: cleaning my room, cleaning the bathroom, vacuuming and dusting the living rooms and hallways, and then weeding. Growing up in California, weeding was year-round and I hated it. Holidays were also spent working. I vividly remember a Thanksgiving where my parents told my brother and I that if we finished weeding the garden, which was no small job with flower gardens surrounding our home and an overrun juniper garden encircled by our driveway, we could “earn” ourselves a brand-new color television. I also remember my father saying when I was a teenager, “You are my only hope for a successful daughter.”

Roots of Work Ethic. So it is no surprise that I started working at the age of 16 and never stopped. Much of my self-worth has been unconsciously tied to working. After graduating with my Bachelor’s degree in psychology, not the most useful degree, I started out as a secretary moving up to a paralegal. Once I became the director of the legal department for a software company, I decided to go to law school. After law school, I worked for the Third District Guardian ad Litem’s office, started my own firm, then joined a downtown Salt Lake law firm where I was co-chair of the Family Law section. After 12 years at that firm, I fed my entrepreneurial drive and started my own family law collaborative divorce and mediation firm.

Struggles and Successes. While I’ve done well professionally as an attorney and business owner, I struggled personally. I had two failed marriages and essentially raised two daughters as a single parent. As a result of being a stressed out mother, my relationships with my daughters can be challenging at times. Had I accepted who I was when I was in my twenties rather than trying to change my core self to satisfy others, my children would have had a very different mother and a much easier childhood.

Reflection and Awakening. I previously wrote about this but after the demise of my second marriage, I was emotionally destroyed. Both marriages were unhealthy. I did not want to repeat this pattern so I began what became 8 years of self-reflection and asking curious questions. I dived deep into exploring the beliefs that I held, questioning whether those were my beliefs versus beliefs that were instilled in me. I questioned whether those beliefs still served me in a positive way. I explored my spiritual beliefs, beliefs about myself, and beliefs around what family relationships should be. I studied different religions. I studied Carl Jung, Marion Woodman, Thich Nhat Hahn, Sharon Salzburg, Wayne Dyer, Caroline Myss, Judith Orloff, and many others. I read biographies of female trailblazers. After years of study, I finally started getting a glimpse of who I really was and not being ashamed of that person. I am a direct communicator and a strong advocate that can, at times, come across as “a bull in a china shop,” as one male colleague called me.

During my self-reflection period, I changed the way I practiced as a family lawyer and how I ran my law practice. It was a struggle since my model was different than my other law firm partners. I could no longer just focus on the legal aspects of divorce. I recognized the importance of addressing the other aspects of my cases that were the “elephants in the room” and influenced decision making including the emotional fears, spiritual values, and financial concerns of the divorcing or separating couples. I wanted to help my clients see that the challenging situation they found themselves in could be an opportunity of transformation like it was for me. However, the only way to accomplish that was to provide opportunities of insight for my clients.

Evolution. It is for this reason that I offer a resource called “Our Family in Two Homes” and “Our Family in Few Homes” for divorcing or separating couples with adult children. This resource is a tool for my clients to thoughtfully prepare for negotiating their settlement. Prior to offering this resource, I would spend time with my clients asking similar questions but the clients paid for the time they met with me. Now my clients can accomplish the same on their own time.

Insight Resource. The “Our Family in Two Homes” workbook allows my clients to really think about their responses, determine what is most important, understand better where conflict arises with their partner, and think about how each of them shows up when conflict arises. The workbook helps clients figure out the values that influence their decision making process and their partners since these strongly impact the settlement negotiations. Not only does it explore the areas of trust that have been broken but the areas that have not been broken, which can be the starting point for healing the areas of trust that have been broken. All these aspects are critical in consciously creating a settlement that supports the future envisioned by my clients.

Is this something of interest? If so, feel free to complete an inquiry form or call me at (801)464-4004.

Have you ever thought that divorce could be a gift? That the brokenness you may feel when realizing your relationship is over is the beginning stage of transformation?

Thirteen and a half years ago, I found myself facing the end of my second marriage. In reality, the marriage had died twelve and a half years earlier but I was unable to acknowledge that fact.

Unconsciously, my mantra was “Don’t be a two-time loser.” My first marriage ended after three years, when my husband put me in a headlock and threatened to break my neck while I was two months pregnant, holding our 14-month-old baby girl. Fast forward 14 years and I was faced again with the demise of another marriage. Blending my second husband’s five children with my two children had not gone well. Our parenting styles were different. Our family cultures did not mesh. I was bearing the burden of being the primary breadwinner for our blended household while my second husband’s income supported his first family. We separated five years into the marriage with what I thought was an intent to work on our relationship. My hope was that by the time our youngest child graduated, we could once again live together.

After seven years of separation, I finally woke up and realized that my husband had long since left the relationship. Despite my efforts to salvage the relationship, the conflict continued. Our lives were more separate than ever. Even when my 13-year-old daughter once screamed “Just get divorced already,” I ignored her pleas. My two daughters and step-children were stuck riding the emotional rollercoaster of this unhealthy relationship.

Needless to say it took a few more years to pull the trigger–to face reality. By this time, I had graduated from law school and was a guardian ad litem, an advocate for children of divorce. I realized I had deluded myself into believing by staying married I was benefitting my own children–teaching them not to give up, to work through difficult relationships, because family must stick together. A shocking disclosure from my husband opened my eyes to finally see the shell of our relationship. Yet, I still doubted. If this marriage failed, what did that say about me? What would people think? My religion emphasized the importance of family and staying married. But, here I was faced with a second divorce. I also knew what was ahead. The initial compassion from friends and neighbors would eventually turn to isolation. Invitations from my coupled up friends stopped because having a single woman around is uncomfortable and for some, threatening. This had been my past and I was not looking forward to this future.

But our past need not repeat itself if we heed the simple calls that uncannily appear. Joseph Campbell identified this as the “The Hero’s Journey” and the “Call to Adventure.” It is Luke Skywalker rejecting the call to travel to Alderaan until he returns home to find his uncle and aunt killed. Divorce is no different. We can heed the call to adventure by diving inward. To excavate and ultimately expunge the beliefs that we acquire along our life’s journeys that no longer serve us. To find the allies who can help us hold the sadness, guilt, blame, depression, and rage that burns within, no matter how painful.

My second marriage emotionally destroyed me. Yet, from this complete and utter emotional rubble, I was motivated to turn inwards so I could find who I was, what I believed, and where I wanted to go. I discovered that many of the beliefs that I held about myself and how I relate with others were no longer serving me. These beliefs and skills helped me survive my childhood but they were not serving well in adulthood. I clarified the values that are important to me and distinguished the values that were “imposed” on me. I discovered my self-worth. I learned to set boundaries and not take ownership of other people’s issues. (Okay, I still struggle with this one.) I learned the importance of self-acceptance. (Another one I struggle with.) I faced my anger, blame, victimhood, and guilt directly. I sat with the pain. In so doing, it transformed my perceptions about myself and how I interact with the world. Most importantly, I disengaged from relationships that were damaging. I realized the importance of surrounding myself with friends, family, and associates who support and accept me as I am.

I liken the divorce process to the life cycle of a butterfly. Initially, a pupa is born as a caterpillar. But, also within the caterpillar is the DNA of the butterfly. At some point, the caterpillar must transform. It builds its chrysalis around itself. The caterpillar turns to mush and the rebuilding process begins. A butterfly emerges but not without a struggle. It is initially crumpled. It must wait for its wings to harden. But in time, it spreads its wings and soars.

Divorce can be a gift. It is an opportunity for you to discover who you are, what you want, and where you want to go. You have everything you need within you, but you need not go it alone. Find professionals who can be allies in your journey. People who work with you to create a secure chrysalis for transformation from which you can emerge with hope, security, and confidence in your future. We are out there.

Growing up in the 70s and early 80s, I did not know anyone whose parents were divorced. My first introduction to “child custody” disputes was from watching Kramer v. Kramer, the 1979 movie where the mom (Meryl Streep) abandons her husband and son but returns after 15 months to claim her child. The custody battle involved each parent’s lawyer viciously attacking the other parent’s character. It was traumatizing to watch. In the end, the court awarded the mom custody of the child even though she had abandoned the child and the father (Dustin Hoffman) had made dramatic changes to his life, including sacrificing his career, to care for his son.

For most of the 20th century, courts followed what has been called the “tender years” doctrine when awarding custody of children. The tender years doctrine is a legal doctrine that presumes a mother should be awarded custody of her children because young children need their mother regardless of the father’s involvement in the care of the child, the child’s bond to the father, or the child’s lack of bond with the mother. Luckily, the courts have evolved beyond the tender years doctrine and now determine custody based on the best interests of a child. But what does that mean?

Often, I hear clients during an initial consult explain that they need “sole custody” of their children because he or she has stayed home with the children or that he or she needs “joint custody” because that is the fair approach. But when asked what they mean by that, the clients do not fully understand. Most clients believe it just means where the children live.

Child custody involves two components. The first is legal custody, which involves decision making authority. It is the right of a parent to be involved in making long-term decisions about their child. The second is physical custody or where a child will reside.

Legal Custody

In Utah, there is a presumption that it is in the child’s best interests that both parents should be involved in all major decisions related to that child’s welfare. This typically involves decisions relating to medical issues, education, and religious upbringing. There are certain circumstances where joint legal custody (or joint decision making) may not work such as in a relationship where there has been domestic violence or where the parties live far apart. But generally it is expected that when an issue arises, each parent should be notified of an issue, talk through the options, and then arrive at a mutual agreement on how to address the issue. Most issues can be resolved this way but what happens if that is not possible? There are different approaches to resolving a disagreement including (i) giving one parent the right to make the final decision only after a discussion has occurred; (ii) attending mediation; (iii) giving a parent the right to make the final decision only after mediation is attempted; (iv) hiring a special master (usually an attorney) to make the decision; or (iv) giving neither party the right to make a final decision and requiring the issue be brought to the court if no agreement can be reached.

Physical Custody and Parent-Time

There is no such legal presumption relative to physical custody. Instead, the court looks at various factors when determining where the child should live. There are 17 specific factors that are to be considered including such things as (i) a parent’s demonstrated understanding and ability to meet the needs of the child including physical, emotional, education, medical and any special needs; (ii) the parent’s ability and willingness to co-parent including the ability to appropriately communicate with the other parent, the ability to encourage the sharing of love and affection, and willingness to allow frequent contact between the child and the other parent; (iii) who has been the primary caretaker of the child; (iv) the parent’s financial responsibility; (iv) the relative benefit of keeping siblings together; and. (v) the relative strength of the child’s bond with the parent. The non-exhaustive list of custody factors can be found here.

“Sole physical custody” means when one parent has less than 111 overnights with the children. The traditional parent-time schedule when one parent is designated the primary custodian includes a midweek visit from the time school is dismissed until 8:30 p.m., alternating weekends from Friday afternoon until Sunday evening, four consecutive weeks during the summer, and alternating holidays. Often, attorneys refer to this schedule the “30-3-35” schedule because the schedule is described in Utah Code Section 30-3-35.

“Joint physical custody” means when each parent has the children at least 30% of the overnights each year. There are a variety of joint custody arrangements. Several years ago, the Utah legislature enacted an alternative schedule where one parent’s midweek parent-time is overnight, the alternating weekend is from Friday after school dismisses until Monday morning when school resumes, four consecutive weeks in summer, and alternating holiday schedule where the children are returned when school resumes. This schedule gives one parent 145 overnights and the other parent 220 overnights. In other words, this is a 40/60 division of parent-time. This schedule is often referred to as the “30-3-35.1” schedule since it is described in Utah Code Section 30-3-35.1.

As of May 5, 2021, there is now an additional alternative schedule that a court may award that has the children spend equal time with each parent. This schedule can be found in Utah Code Section 30-3-35.2 and identifies specific factors that a court may consider when awarding a 50/50 custody arrangement. A court may award equal parent-time if the court finds that it is in the child’s best interest, each parent has been actively involved in the child’s life, and each parent can effectively facilitate the equal parent-time schedule. There are specific factors that the court is to consider when determining whether a parent has been actively involved in the child’s life including each parent’s demonstrated responsibility in caring for the child, each parent’s involvement in child care, each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities, each parent’s assistance with the child’s homework, and each parent’s involvement in preparation of meals, bath time, and bedtime. Some of the more common 50/50 custody schedules include (i) a “2/2/5/5 schedule” where the children reside with one parent every Monday through Wednesday morning, the other parent from Wednesday through Friday morning and alternating weekends from Friday through Sunday morning; (ii) “week on/week off” where the children reside with each parent for a week and exchange at a designated time such as on Friday or Sunday evening; or (iv) a “4/3/3/4 schedule” where one week the children reside with parent A for 4 days and reside with parent B for 3 days and the next week the children reside with parent A for 3 days and with parent B for 4 days.

In summary, custody means much more than where a child resides. It involves how much each parent will be involved in all aspects of a child’s life. Parents are also not restricted to the statutorily defined schedules. Parents can decide any schedule that works for their family. If the parents can agree, a court will adopt their schedule. It is the extremely rare case that a judge will reject the parents’ mutually agreed upon schedule. However, if the parents cannot decide then the court is more restricted and will likely adopt one of the schedules mentioned above.

In the fall of 2020, I found myself in the emergency room.  I thought I was having a heart attack.  Luckily that wasn’t the case but the doctors had no answers for me.  They did not know what was going on.  One mentioned a panic attack. Well, whatever it was, it woke me up.  For decades, I have pushed through the stress of my job and avoided all things relating to self-care. My nature is to stay with something I commit to regardless of how unhappy or stressed it makes me. My exhaustion each night gave me the rationale to put off healthy living.  However, spending a morning in the emergency room was my wake up call.  I realized that I could no longer avoid the inevitable. I needed to face reality and figure out what changes I needed to make for a more satisfying and healthy future.

Over the next few weeks, I realized that 15 years of representing children, parents, spouses, and grandparents in high conflict domestic relations disputes was taking its toll on my physical and emotional health.  A colleague of mine had taken the plunge into a non-litigation family law practice three years earlier.  She encouraged me to take a similar step—to move away from litigation and dedicate my practice to collaborative divorce, mediation, and negotiated settlements.

I debated whether I wanted to make such a change at this point in my career.  The legal practice of family law is a challenge but the unknown is even more worrisome.  People referred clients to me because I understand and am skilled at navigating high conflict divorces involving difficult personalities, complex high net worth marital estates, and nasty custody disputes.   I worried whether a 100% out of court family law practice is sustainable.  However, my colleague had done it so why couldn’t I? Weren’t most of my clients wanting to avoid court?

Does this sound familiar?  Do you feel any of these feelings as you make decisions about the future of your marriage or relationship? The unknown is scary, but knowledge is power.

If you are contemplating divorce or ending a long-term relationship, here are your options:

Do-It-Yourself Divorce:

A 2006 survey conducted by the Utah state courts found that 47% of divorce filings in Utah involve two unrepresented parties.  Many couples either cannot afford an attorney or are afraid that hiring an attorney will create more conflict.  The Utah court system offers an online service that allows individuals to fill out forms that once completed, will provide all the documents needed to finalize their divorce.

• PROS: This process is inexpensive and relatively easy to complete.  If the issues in your divorce are not complex or your marital estate is relatively small, this may be a good option.
• CONS: The forms are often incomplete and, in my opinion, poorly drafted. Too often parties include language that conflicts with the boilerplate language in the court forms. This makes the final documents confusing and difficult to enforce. Correcting such errors is more expensive than if an attorney had been retained to draft the original divorce documents.

Mediation:

A mediator is a specially trained individual who helps parties find a common ground and facilitates reaching a settlement.  Mediators cannot represent either party or give legal advice.   If a couple is not able to reach an agreement on their own, a judge will require the couple to attempt at least one round of mediation before scheduling trial.  It is important to find a mediator that is adequately trained and experienced but also fits the needs of your situation.  For instance, if you and your spouse want to maintain control over your resolution and find creative solutions, you will want a mediator who is trained in facilitative, transformative, or insight mediation.

• PROS:  The majority of contested divorces or paternity actions resolve in mediation.   If you are represented by an attorney, your attorney also attends mediation.  Attorney-mediators or retired judges turned mediators will have the knowledge of the law and requisite training that is needed to successfully reach a resolution. Retired judges often use a more directive approach meaning they will be more likely to provide advice on what you should do or offer their opinions about whether your position will succeed in court.
• CONS: Unfortunately, the mediation profession is not regulated, meaning there is no association overseeing practicing mediators. Any person can claim to be a mediator even if they have no training.   Non-lawyer mediators are not allowed under Utah law to draft divorce documents.

Collaborative Divorce:

Collaborative Divorce is a new approach for couples to resolve their disputes respectfully—without going to court—while also working with trained professionals.  The collaborative process involves a complete paradigm shift from the traditional approach to divorce or separation.  Rather than focusing on what each party’s rights and obligations are under the law, settlement is negotiated based on the interests and needs of not only the couple but also their children.  The essence of Collaborative Divorce is to offer spouses or partners the support, protection, and guidance of their own attorneys, who are committed to staying out of court.  Additionally, Collaborative Divorce allows couples the benefit of utilizing professionals including financial specialists, divorce coaches, child specialists, and other professionals, who all work together as a team in helping the couple reach their best potential outcome.  Couples and their team of professionals are committed to maintaining open communication, information sharing, complete transparency, and exploring solutions that satisfy the needs and priorities of the family.

• PROS: The most significant benefit of the Collaborative Divorce process is that the couple maintains total control throughout the process and makes the final decisions with the assistance of specially trained attorneys and other professionals, who are working as a team toward a mutually created settlement. Costs are manageable and usually less expensive than litigation because the team model is set up for the financially efficient use of experts. The timetable on finalizing the divorce is solely up to the couple.
• CONS: If the couple is not able to reach an agreement, the attorneys are required to withdraw, and each spouse or partner is required to retain new counsel.

Traditional Litigation:

Traditional litigation is the model that is most represented in the movies.  When parties are unable to reach agreements on their own then a judge is required to make the final decision.  In litigation, the court controls the process, which is based on an adversarial system. There are significant delays in getting hearings and a trial scheduled. If the marital estate is complicated, then separate experts will have to be hired to support the litigant’s position.  If parents cannot agree on custody and parent-time, a custody evaluation may be needed.  Hiring these experts is extremely expensive and often delays final resolution.

• PROS: If one spouse or partner refuses to cooperate, the other spouse or partner can obtain a final resolution and is not held in limbo.
• CONS: Litigation is expensive.  Because of the adversarial nature of the process, the family is often traumatized.  It is expensive. While parties hope to have their day in court, each party is usually upset with the final resolution and feels they have not been heard.

Recognizing that a marriage or long-term relationship is ending can be frightening.  Change is hard.  The unknown is unnerving.  However, staying in an unhealthy relationship takes its toll on the couple and their children. It can even be quite damaging.   It is critical to take the time to figure out what you truly need and where you need to go.  Know there are divorce options out there that will support your family transitioning from one home to two homes without the trauma of a nasty court battle.

It would be lovely if the starting point of any divorce could be deciding what we want. But more often than not, my first consultation with clients involves questions of survival. Many clients fear what their financial future will look like. They have worked hard to get where they are financially. Divorce presents a sharp reality that what one has now will not be what one has in the near future. Clients come wanting assurance. They want to know whether they will be able to stay in their home, maintain sufficient financial support for their household, and walk away with sufficient funds to maintain the lifestyle to which they have become accustomed. It can be a struggle to move the conversation beyond these basic concerns.

Abraham Maslow developed a motivational theory that consists of five levels of needs. The bottom level involves the physiological needs of food, shelter, warmth, and air. The most basic of all needs. These needs MUST be satisfied before any other issue can be explored. This explains why a stay-at-home parent who has not worked for years because they have dedicated their lives to serving the family at home may fixate upon support or on keeping the home. With Maslow’s explanation of human motivation, a person worried about their basic biological needs of food and shelter cannot think about the future.

So what type of financial support is available in Utah?

Child Support

If there are minor children, meaning children under the age of 18 or not graduated from high school, whichever is later, one parent is entitled to receive child support. Child support is relatively easy to calculate using the Utah.gov Child Support Calculator. It is based on the (i) number of overnights each parent has the children each year and (ii) each parent’s gross income. Gross income includes income from any source whether earned or unearned including salaries, wages, commissions, bonuses, rents, gifts from anyone, prizes, dividends, unemployment compensation, social security benefits, capital gains, alimony, etc. If one parent does not currently work, that parent has generally imputed income based upon his or her employment potential and probable earnings. A judge will look at such things as that parent’s work history, occupation qualifications, education, literacy, age, health, employment opportunities, criminal record, other employment barriers and background factors, and prevailing earnings and job availability of persons of similar backgrounds in the community. A parent who has no recent work history or if a parent’s occupation is unknown, that parent has imputed an income at the federal minimum wage for a 40-hour workweek. If one parent has the children for less than 110 overnights then child support is calculated using a sole custody worksheet. If each parent has more than 110 overnights then child support is calculated using a joint custody worksheet.

Alimony

Spousal support or alimony is the second form of support. It is the second most litigated issue in a divorce next to custody. The policy behind Utah’s alimony laws is to enable the receiving spouse to maintain as nearly as possible the standard of living enjoyed during the marriage and to prevent the spouse from becoming a public charge.
Unlike child support, there is no calculator to determine an appropriate amount of alimony. There are seven (7) different factors that a judge must consider when determining alimony with the three most significant ones being (i) the financial condition and needs of the recipient spouse, (ii) the recipient spouse’s earning capacity or ability to produce income; and (iii) the ability of the payor spouse to provide support. A recipient spouse’s need is based on the standard of living enjoyed during the marriage. Other factors include the length of the marriage, whether the recipient spouse has custody of a minor child requiring support, whether the recipient spouse worked in a business owned or operated by the other spouse; and whether the recipient spouse directly contributed to an increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage. A judge may consider the fault of the parties under certain circumstances (e.g. one party engaging in an extramarital affair, abuse, or a party substantially undermining the financial stability of the other party or the children). The length of alimony cannot exceed the length of the marriage and terminates upon remarriage, cohabitation as defined by Utah law, and death of either party.

Figuring out how much alimony you may be entitled to or may be expected to pay is a difficult task and one that you will likely want to seek legal advice on.

Next to the children, financial support is one of the biggest obstacles in divorce or separation. No one can reasonably be expected to focus on other issues if they are worried about how they are going to pay their bills, feed their children, or keep a roof over their head. It is critical for couples to understand and recognize that the financial needs of the other party to help move toward settlement. Not addressing these issues fairly create long-term negative effects on the family.

Ten Types of Documents to Gather When Considering Divorce

Socrates said, “The only true wisdom is in knowing you know nothing.”  This may be true in life but is extremely damaging in divorce.  It is critically important that you take affirmative steps to understand and familiarize yourself with your finances when considering divorce.  You will be in a much better position if you understand what you have so that you can figure out where you want to be at the end of the divorce process.  You want to be confident that you have the information to make informed decisions and to take control of your own path.  This can be an intimidating step if you have not previously been involved in the financial aspects of your marriage.  But your future financial health depends upon you taking the time to gather information.

Below is a useful checklist of documents to gather when considering divorce:

• Tax Returns – personal and business – for the most recent two (2) years, including complete federal and state income tax returns, Form W-2, Form 1099, and Schedule K-1 forms, and supporting tax schedules and attachments filed by you, your spouse, and by any entity in which you or your spouse have a majority or controlling interest.
• Pay Stubs – for the past twelve (12) months, provide copies of all of your and your spouse’s paystubs and/or other evidence of all earned and unearned income. At a minimum, you will need the most current paystub and the last paystub issued in the previous calendar year from each employer, assuming the paystubs include year-to-day income.
• All loan applications and financial statements prepared or used by you or your spouse within the last twelve (12) months.
• Documents verifying the value of all real estate in which you or your spouse have an interest, including the most recent appraisal, tax valuation notices, deeds, purchase documents, settlement statements, and refinance documents.
• Current titles and appraisals/valuation documents for all vehicles, boats, campers, trailers, recreations vehicles, jewelry, major household items, and other personal property. To determine the value of your vehicles, you will want to complete a Kelley Blue Book (kbb.com) or NADA (nada.com) report for each vehicle, boat, camper, trailer, and recreational vehicle in your possession.
• For all businesses in which you or your spouse have an interest, you will want copies of all the following as may apply: current profit/loss statements, balance sheets, income statements, cash flow statements, payroll reports, aged account receivable documents, depreciation schedules, Articles of Incorporation, Articles of Organization, Operating Agreements, nature of business, percentage owned, name(s) of all owners, current value, complete business tax returns for the most recent two (2) years, and business checking and savings account statements for the last three (3) months.
• All statements for the last three (3) months for all financial asset accounts, including checking, savings, profit-sharing, annuity, money market funds, certificates of deposit, brokerage, investment, retirement, and trusts (for you and your spouse).
• Current statements for all life insurance policies, with and without cash value (for you and your spouse).
• Credit card statements and other debt statements for the last three (3) months (for you and your spouse).
• Copies of your most recent billing statements for the last three (3) months verifying each of your monthly expenses, such as utility bills, mortgage statements, daycare receipts, medical billings, and insurance explanation of benefits, etc.

See Also

Next to child custody, alimony is the most hotly contested issue if you are divorcing in Utah.  Why? Because there is no formula or calculator to determine the amount of alimony.  Instead, alimony is based on multiple factors, which can be highly subjective.  In Utah, the primary purposes of alimony are (1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.”[1]  Alimony is not fashioned to provide for only the basic needs of the recipient spouse but should consider the parties’ standard of living enjoyed during the marriage as closely as possible.[2]  While this calculation may seem relatively easy, there is broad discretion when figuring out a recipient spouse’s needs and how long alimony should be paid.

The Utah legislature has identified seven factors[3] that must be considered when determining whether to award alimony with the primary three factors, often referred to as the “Jones factors,” requiring the examination of “(i) the financial condition and needs of the recipient spouse, (ii) the recipient’s earning capacity or ability to produce income; and (iii) the ability of the payor spouse to provide support.”[4]  To determine these factors, each spouse must complete a court-approved Financial Declaration that includes among other things, a monthly budget of expenses.  Certain financial documentation must also be exchanged including income verification documents, bank statements, and credit card statements.

Calculating the Needs of the Recipient Spouse and Payor Spouse’s Ability to Pay

It is common that a spouse’s circumstances will be different after the couple separates. For instance, one spouse may move in with his or her parents to avoid incurring any additional housing costs during the pendency of the divorce proceeding.  However, when calculating alimony, a couple is to look to the standard of living prior to separation rather than after separation.  The standard of living is based on the monthly expenditures.  So it is important for each spouse to be thorough when preparing their monthly budget.  It is advisable to review bank and credit card statements from the 6 to 12 months prior to your separation.  However, in most cases, a divorcing couple is not going to be able to maintain the standard of living during the marriage because there simply will not be enough money to go around.  In that situation, calculating alimony then turns to equalizing the standards of living between the parties so that each party has close to the same cash flow each month.

Each spouse needs to complete a budget to determine how much each spouse needs to live.  The spouses’ budgets will likely be different based on the expenses that the spouse will have post-divorce or the amount of time the children will be with each parent.  It is possible that one spouse will agree to be responsible for paying the marital debt after divorce.  That will obviously increase that spouse’s monthly expenses and decrease the other spouse’s expenses.  When completing the budget, it is important to include all expenses.  The court-approved Financial Declaration form is not an exhaustive list of expenses.  For instance, you will want to include such things as travel, grooming, pet expenses, gym memberships, tax preparation/accounting fees, etc.  These categories are missing from the court-approved Financial Declaration form but should be added if these are expenses incurred during the marriage.

If an expense was incurred during the marriage but will no longer exist after the divorce or the expense will be reduced in the future then that expense should be eliminated or adjusted in your monthly budget.  Many expenses will need to be adjusted.  For instance, if you are not the spouse that provides health insurance, it will be important for you to get quotes on how much your health insurance will be post-divorce since you will not be able to remain on your spouse’s health insurance.  If you have an older vehicle that will likely need to be replaced in the near future then you will likely want to include a reasonable amount for a future loan payment to replace that vehicle.  You will want to include student loan payments.  Student loans are typically the responsibility of the spouse that acquired the loan, regardless of whether it was incurred during the marriage to pay for family expenses.  If you typically contributed to retirement and other savings plans, those expenses can also be considered.

When determining future housing expenses, each party should do the research to determine what that amount will be since it will likely change.  If one spouse intends to keep the marital residence but will be required to buy out the other spouse’s interest, the mortgage payment will go up.  Or if you intend to sell your home, you will want to figure out what funds you will have for a down payment, the home price range that you can afford, and the amount of your mortgage payment.  There is a wide range of mortgage calculators that you can use to help with this process.  Also, depending upon the amount of time the children are spending with each parent, budgets for each parent may be different.  Lastly, if the budgets are contested, it will be critical to gather the financial documentation to support the amount of claimed expenses.

Depending upon the complexity of your situation, you might want to consider hiring a forensic accountant or certified divorce financial advisor to help review your financial records and create your budget.  Accurately creating your budget can feel overwhelming but it is one of the most important tasks to complete in your divorce.

Determining Incomes

Determining the incomes of each spouse can be relatively simple if you both worked during your marriage but there are a few principles that are often misunderstood.  The  Utah child support statute provides that child support is based on a 40-hour workweek.  However, if a spouse has historically worked overtime or received bonuses then that additional income should be included when calculating that spouse’s gross monthly income.

If the recipient spouse remained home to be a full-time caretaker for the children but is capable of working, then that spouse will likely be imputed income.  The question that must be answered is what is that spouse capable of earning?  Any income imputation is based on education, work history, occupation qualifications, employment opportunities, and the prevailing earnings for persons of similar backgrounds in the community.[5]

Determining incomes for a spouse who is self-employed can also be a challenge since the income reported on tax returns is undoubtedly less than what the actual gross income is.  For the self-employed, gross income is “calculated by subtracting the necessary expenses required for self-employment of business operation from gross receipts.”[6]  However, when calculating the necessary expenses, you want to make sure that you are not double-counting that expense.  Many expenses are commonly used for both business and personal purposes.  For instance, if a car loan or cellphone is paid by the business then that same expense should not be included in the self-employed spouse’s personal monthly budget.  Another approach, which was adopted in the Miner case, is to divide the expense in half applying one half of the expense as a reasonable business expense and the other half considered a personal expense.  Determining whether an expense is a necessary business expense or a personal expense is based on whether that expense is “necessary to allow the business to operate at a reasonable level.”[7]

How Long Should Alimony Be Awarded

Once alimony is calculated then the length of alimony must be determined.  The Utah “legislature has set an outer boundary on the length of alimony awards, mandating that, in the absence of extenuating circumstances, alimony may not be ordered for a duration longer than the number of years that the marriage existed.  But there is no inner boundary on the length of an alimony award.”[8]  Alimony can be paid for a shorter period of time, or the alimony award may taper off gradually.  This is often referred to as “rehabilitative alimony.”  “Rehabilitative alimony is a remedy intended to ease the recipient spouse’s financial adjustment period.”[9]  This is often considered appropriate “where the recipient spouse is of an age and in possession of employment skills that make self-sufficiency likely.”[10]  Rehabilitative alimony may be awarded to allow sufficient time for the recipient spouse to return to college and earn a higher degree.  Thus, increasing that spouse’s earning capacity and ability to provide for his or her own monthly needs.  Alimony also terminates upon the remarriage or cohabitation of the recipient spouse and the death of either spouse.

Conclusion

Determining alimony is a complicated issue.  If you have more questions, feel free to contact Telfer Family Law.

[1] See Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153.

[2] Id.

[3]

[4] Miner v. Miner, 2021 UT App 77, ¶ 16.

[5] Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 63 (quoting Utah Code § 78B-12-203(7)(b).

[6] Utah Code § 78B-12-203(4).

[7] Barrani v. Barrani, 2014 UT App 204, ¶¶ 15-16, 334 P.3d 994.)

[8] Miner, 2017 UT App 77, ¶ 91 (quotation simplified).

[9] Id. At ¶ 92.

[10] Id.

See Also

Author and Netflix superstar Marie Kondo says, “When you put your house in order, you put your affairs and your past in order, too.”  Nothing could be closer to the truth in divorce— When you put your financial house in order in divorce, you put your affairs and your past in order, too.  Here are 5 steps to getting your house in order:

Step 1: Be Knowledgeable About Finances

In a previous blog post, I emphasized that “knowledge is power.”  Whether you have managed your family’s finances, or your spouse did, it is critical that you both understand your finances.  Here are the categories to identify and understand:

• Income: Identify each spouse’s incomes.  Understand what the gross income (before tax) is and net income (income available after tax).
• Assets: Identify the assets held in your name, your spouse’s name, and assets that are jointly held. List when and how the asset was acquired. Assets include but are not limited to real property, vehicles, financial accounts including checking, savings, investment, and retirement accounts, personal property in the home (furniture, furnishings, art, etc.), stock and stock options, and life insurance that has a cash value.
• Liabilities: Identify the debts that you and/or your spouse have (individually and jointly) including mortgage(s), HELOCs, credit card debt, student loans, business loans, and other liabilities.
• Insurance: Make a list of your family’s insurance coverage including medical, dental, home/property, auto, and life insurance.
• Prenuptial or postnuptial agreement: If you and your spouse signed a prenuptial or postnuptial agreement, make sure you have a copy to provide to your attorney.
• Estate planning: Gather copies of your estate planning documents including any will, trust agreement, power of attorney, and/or health directive to provide to your counsel.

Step 2: Understand Monthly Expenses:

It is important to understand what you and your spouse spend each month for your basic needs and discretionary expenses. For an accurate and realistic picture, it will be helpful to review six to twelve months of your bank and credit card statements.  Create a spreadsheet of each expense (mortgage/rent, utilities, food, clothing, travel, etc.) and then average your spending for each expense and month.   It is extremely important to have a clear and accurate picture of your spending so you can compare that with your net income.  This is especially important to determine if ongoing spouse support/alimony will be needed.  It will also provide a guide to where you can adjust your spending post-divorce if that becomes necessary.

Step 3: Gather Financial Records:

Locate and make copies of bank statements for the past twelve months including cancelled checks, tax returns (personal and corporate/partnership) for the past three to five years, deeds to real property, titles to vehicles, paystubs, insurance policies, credit card statements, loan statements, closing records from mortgages, recent appraisals, etc. The sooner you do this the better in case the documents disappear.  Keep the copies in a safe place, whether that be in your home, a friend or other family member’s home, or a bank safety deposit box.

Step 4: Open Your Own Bank Account:

It is important that you have funds available in case of emergency.

Step 5: Pay Attention to Your Credit Card:

It is important that you build your credit before filing for divorce. If you do not have a credit card in your own name, you will want to apply for one prior to filing for divorce.  You will then want to use it and pay off the balance each month.  This helps build credit in your own name.

Having an accurate and thorough understanding of your finances prior to filing for divorce is an important step toward easing the fear and anxiety that often accompanies divorce.  It is an affirmative step toward putting your financial house in order.

See Also

FROM THE SECOND DISTRICT COMMISSIONERS RE: RESUMPTION OF IN-PERSON HEARINGS

WHEN:

We are currently contemplating returning to in-person court on September 1, 2021. In-person court can resume if the courts are in Yellow as long as appropriate precautions are taken. If the virus count prompts a return to Red, in-person hearings will only take place if there is exigency on a case-by-case basis.

HOW:

Until the court is in Green, everyone coming to the courthouse will need to wear a mask, even if vaccinated. Court patrons will be responsible for maintaining appropriate social distancing in the hallways. Masks must be worn at all times except when directly addressing the court.

Other than witnesses for evidentiary hearings, each party will be limited to TWO observers/support persons. When seated in the gallery, each group will be responsible for seating themselves at least 6 feet apart. At the bailiff’s discretion, patrons may be admitted to the courtroom one hearing at a time.

At the conclusion of each hearing, counsel, the parties, and observers will need to wipe down any surfaces they touched with sanitizing wipes. Sanitizing wipes will be provided for this purpose. Patrons are requested to leave the courthouse as soon as their hearing is completed.

PROTECTIVE ORDERS:

Protective order litigants may only bring ONE observer/support person. Additional security and volunteers will hopefully be available to assist in maintaining order and distancing during large protective order calendars. Because of the limited space available in the courtrooms, not all parties will be allowed in the courtroom at the same time. Efforts will be made to serve new orders electronically so that parties are not waiting for copies of orders.

CAVEATS:

1. At the discretion of the commissioner conducting the hearing, the courtroom may be closed to everyone except those essential to conducting the hearing.
2. The transition process will be fluid, and there may be unexpected difficulties. Please be patient and understand that these procedures may require adjustment as we go forward.
3. Each commissioner may, at his or her discretion, continue to conduct certain types of hearings remotely even after COVID restrictions are no longer in place. Notice of this will be provided at the time the hearing is scheduled.
4. If you have any questions about whether to appear in person, please contact the assigned commissioner’s team via the commissioner’s team email address.

I cannot count the number of times that prospective clients are shocked to learn that there are ways to divorce or resolve their family law dispute without the nastiness of court.  The court system is set up to be adversarial.  However, there are ways to resolve your family law dispute amicably without going to court. This does not mean that there will be no conflict. With the right professionals, there are alternative dispute resolution approaches that support parties resolving their conflict in more healthy and less traumatic ways.  Collaborative Divorce (also referred to as Collaborative Practice, Collaborative Law, or Collaborative Process) and Mediation are two such approaches.  Folks often confuse the two so here is an explanation of the differences.

Collaborative Divorce

Collaborative Divorce is a voluntary dispute resolution process where parties commit to settling their divorce or family law dispute without going to court.  A collaborative divorce is not limited to married spouses but also applies to unmarried couples who are separating or involved in a child custody dispute.  In a contested family law dispute, judges are required to make the final decision and are limited by state law.  Parties electing the Collaborative Divorce approach maintain control over the entire process.  The collaborative process allows parties to maintain flexibility and creativity in reaching solutions that focus on the needs and interests of their unique situation rather than focus on the rights and obligations defined by law.

In a Collaborative Divorce, each party hires an attorney specially trained in the collaborative process.  (Beware there are attorneys who claim to be collaborative law attorneys but have not received the specialized training). Each party, with their attorney, signs a collaborative participation agreement that describes the collaborative process.  Specifically, the parties agree to voluntarily disclose all information that is relevant and material to their case.  Each party agrees to use good faith efforts in their negotiations. Each party agrees to treat the other with respect.  The parties agree to keep the discussions and process confidential.   If the parties are unable to reach a settlement and a contested court proceeding commences, each lawyer’s representation terminates, and the parties must find new litigation counsel.  This provides a safe container for the parties to be creative without the threat of proposals or information being used against them in court.  It also provides the incentive to work through the issues and reach a final resolution.

The process utilizes a team approach that supports the parties throughout the process.  This process is a complete paradigm shift for attorneys.  Instead of proceeding in an adversarial manner, collaboratively trained attorneys with the parties work together to support the immediate and future needs of the family unit.  Parties also have the option to retain other professionals with specialized knowledge.  For example, a financial neutral (e.g. accountant or certified divorce financial advisor) are often retained to analyze the financial data and assist parties in generating settlement options on financial issues such as child support, alimony, and the division of property acquired during the marriage or relationship.   A mental health professional trained in the collaborative process (often referred to as divorce coaches or facilitators) can also be hired to assist in developing parenting plans.  Divorce coaches assist parties to work through the emotional and communication barriers that often impede resolution.

The most significant difference between a Collaborative Divorce from traditional litigation or mediation is that you and your spouse/partner have a team of trained professionals who are there to support and guide you through the entire process.  You have the benefit of lawyers, divorce coaches, and financial neutrals who are there to help reach the best possible outcome for your family. The process promotes open communication and transparency.  You are able to create shared solutions focused on your highest priorities.

Mediation

Mediation is another voluntary approach to resolving disputes for families in conflict.  Mediators are neutral professionals trained to assist divorcing or separating couples in reaching a settlement.  Unlike in a collaborative divorce, parties can retain a mediator without retaining an attorney. However, a mediator does not have the authority to make a decision for the parties nor can a mediator provide legal advice.  A mediator is a neutral third party who works with the couple to find a mutually acceptable resolution.

In mediation, the divorcing or separating couple meet with the mediator.  Each party has the option to retain an attorney, who can also attend mediation.  Mediation starts with everyone in the same room although some mediators prefer keeping the parties in separate rooms.  The mediator has the parties identify the issues that need to be resolved.  The parties then begin negotiations by offering their respective settlement proposals. The mediator then works with the parties to reach a resolution.  The mediator helps the parties focus on what is important and find areas of compromise.  Mediators can help clarify the issues, assess the strengths and weaknesses of each party’s positions, and provide reality checks. Mediators also offer creative approaches and innovative solutions while maintaining their neutral and unbiased perspectives.  Similar to Collaborative Divorce, mediation is a confidential process, which means that statements, settlement offers, or other information discussed during mediation cannot be used or brought up in a court proceeding.

Collaborative Divorce and Mediation are two effective alternative dispute resolution processes available to those interested in staying out of the adversarial court system.  Both processes minimize the trauma on you and your family.   Both processes are generally less expensive than a contested divorce, paternity, or custody dispute litigated in court.  Most important, you and your spouse/partner maintain control over the entire process.

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/en/self-help/case-categories/family/dived.html.

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.