Alimony in Utah – Fault Consideration – Arnold & Wadsworth

When going through a divorce fault may be a consideration by the court. In Mark v. Mark in 2009 this was examined in a more thorough manner;

To the extent the trial court’s alimony award was a consequence of his fault, Husband argues that the trial court erred in making the alimony award. Regarding Husband’s fault, the trial court made the following finding: “Although fault is an appropriate consideration in awarding alimony in addition to the [mandatory statutory] factors, the Court is mindful of the Utah policy that the purpose of alimony is to provide support, not to reward or punish.”  Mark v. Mark, 2009 UT App 374, 223 P.3d 476, 481
This brings out a good point in that alimony should not award or punish, yet fault can be considered. The case continues;
“The trial court correctly observed that courts may consider fault in fashioning alimony awards but that “[c]onsidering the fault of a party is distinct from punishing a party based on fault.” Christiansen v. Christiansen, 2003 UT App 348U, para. 9, 2003 WL 22361312 (mem) (emphasis added); see also Davis v. Davis, 2003 UT App 282, ¶ 9 n. 1, 76 P.3d 716. However, there is also some merit to the trial court’s implicit observation that this is merely a “distinction without a difference,” see Central Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 17, 40 P.3d 599. In other words, if a trial court uses its broad statutory discretion to consider fault in fashioning an alimony award and then, taking that fault into consideration, adjusts the alimony award upward or downward, it simply cannot be said that fault was not used to punish or reward either spouse by altering the award as a consequence of fault. With this legal framework in place, trial courts are left in the difficult position of trying to determine what the term “fault” means, in what context, and what, if any, consequence fault should have on an award of alimony.” Mark v. Mark, 2009 UT App 374, 223 P.3d 476, 482
Therefore if fault is brought up, you want to make sure you make the correct distinctions in either arguing against it or for it. We have experience in arguing for and against alimony during the trial process. You need someone that understands both sides of alimony so that you can be better protected and better prepare for what the other party may argue. Call today for a free consultation.

Parenting Plan – Divorce in Utah – Arnold & Wadsworth

In Utah when filing for divorce you need to make sure that you file a parenting plan. What is a parenting plan? On our website we lay out what is a parenting plan what are some things you need to include. This shows that there are little details that need to be followed and this is one of the reasons having an attorney lead you through it is a good decision. Parenting plans in Utah are essential in that it allows a judge to see exactly what you are asking for so that it can be granted to you. If you are a father this is important so that you can have more time with your children, and if you are mother, it is important so that can continue to see your children as much as possible. Divorce is stressful, and the final decree controls your life, so why not make sure it is done right. Give us a call today at (801) 475-0123 for a free consultation.

Arnold & Wadsworth Divorce Website

 

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Custody in Utah – Joint Custody – Arnold & Wadsworth

Custody of your children during or after a divorce is the most important factor in your divorce if it involves children. There is nothing worse than not having your children. Joint Custody is when both parents both parents at least have 111 nights with the child/children a year.

In Utah, the best interest of the child is always the determining factor with the court that has the most weight. There a certain factors that the court will consider in order to figure out what the best interest of the child is;

1) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody,
2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
3) whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
4) whether both parents participated in raising the child before the divorce;
5) the geographical proximity of the homes of the parents;
6) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
7) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
8) the past and present ability of the parents to cooperate with each other and make decisions jointly;
9) any history of, or potential for, child abuse, spouse abuse, or kidnaping; and any other factors the court finds relevant.

As you can see from above there are a lot of things you need to show in order to get joint legal custody. Usually joint custody becomes a given to most couples, but if you are to go to court you want to make sure that you give evidence that shows that you are capable of these things and that there is a history of you being a good parent. If your spouse falls into part (9) you need to make sure you point these items out to the court, but you better make sure you have some type of evidence other than just verbal testimony. Again, remember custody is about your children, not the other spouse. It is a fine line to walk to attempt to make your spouse look bad unless you have evidence.

Case Law in Utah:

“Non-functioning of joint custody arrangement following divorce was a substantial change in circumstances which justified reopening custody issue.” Moody v. Moody, 715 P.2d 507, 509 (Utah 1985)

“Trial court abused its discretion in imposing order of joint legal custody on parents and child without statutorily required parental agreement and in the face of parental opposition.”  U.C.A.1953, 30-3-10.1 to 30-3-10.4.  Thronson v. Thronson, 1991, 810 P.2d 428,

“Joint legal custody was not available in divorce proceeding, where both husband and wife failed to file a parenting plan in the trial court.”  Trubetzkoy v. Trubetzkoy, 2009, 205 P.3d 891, 626 Utah Adv. Rep. 10, 2009 UT App 77

“Amendments to child custody statute deleting rebuttable presumption favoring joint legal custody was a substantial and substantive amendment and thus could not be applied retroactively.”  U.C.A.1953, 30-3-10.2.  Thronson v. Thronson, 1991, 810 P.2d 428

At Arnold & Wadsworth, we fully assess your case to make sure that you are heading down the right path. We are not afraid to take your divorce or paternity action to trial. We will do all that we can to help you reach your goals in the future. We know that all your family law problems end after your divorce is final, but we try to set you up in a position where that is less of a probability.

Arnold & Wadsworth Divorce Website

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