The Nuts and Bolts of Divorce
| Publication year | 2012 |
| Pages | 54 |
Vol. 25, No. 1. 54. The Nuts and Bolts of Divorce
Volume 25 No. 1
Jan/Feb 2012
Editor's Note: This article is the first in a series summarizing CLE presentations given as part of the YLD's "Practice in a Flash" program, which is introduced in this edition of the Utah Bar Journal beginning on page 59.
Many young attorneys who are looking to establish their own chentele will find opportunities to represent a client in a divorce. Even if you do not have any desire to handle a divorce case, just having people know you are an attorney means you will likely be asked by a family member, friend, or stranger you meet a question about divorce. Each divorce case is very fact specific and how the statutes and case law are apphed can vary from district to district.
It is important for every young attorney representing a client in a divorce to be well versed in the applicable statutes and case law. The purpose of this article is to provide young attorneys with a basic overview of the most common divorce issues and applicable statutes.
JURISDICTION AND VENUE
You will first need to determine whether a district court in Utah has jurisdiction over your client's divorce case. Utah courts have jurisdiction to dissolve a marriage between two parties where the petitioner or respondent is a bona fide resident of the county where the divorce action is brought for at least three months prior to fihng a petition for divorce. See Utah Code Ann. § 30-3-1 (2007). Utah has child custody jurisdiction if Utah is the home state of the child at the time the petition is filed or if Utah was the home state of the child within six months prior to the filing of the petition and one of the parent's lives in Utah. See id. § 78B-I3-20I (2008). Utah is the "home state" if the child "lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." Id.§ 78B-13-102(7).
CHILD CUSTODY AND PARENT-TIME
Custody is the most misunderstood issue by clients going through a divorce. When you have a client tell you he or she wants custody of the children, you will need to find out what your client means by custody Occasionally I have had a client tell me that he or she wants custody because the client does not want to lose the right to see the children. In discussing custody with clients, you may find that it is more productive to discuss what time sharing with the children might look like during a typical two-week period of time rather than just asking whether or not your client wants custody Nevertheless, it is important to know the different types of custody and how custody is defined.
Physical Custody
Physical custody is defined by the number of overnights each parent spends with their child. There are three types of physical custody: First, primary physical custody where one parent has at least 253 overnights with the child. Second, joint physical custody "means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support." Id. § 30-3-10.1(2) (2007). In other words, if each parent has at least 111 overnights the parties have joint physical custody. Third, split custody means that each parent has primary physical custody of at least one child. If custody is contested the parties may employ a custody evaluator who is appointed by order of the court pursuant to Rule 4-903 of the Utah Rules of Judicial Administration.
Legal Custody
There are two types of legal custody: Joint legal custody is defined as "the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified." Id. § 30-3-10.1(1). Sole legal custody places those rights, privileges, duties, and powers of a parent with one parent.
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