Divorce & Family Law FAQ 

Do unmarried parents have the same legal rights as married ones?

Marriage makes a big legal difference. When a married couple has a child, both partners are legally acknowledged as the child’s parents. The married mother and father have equal responsibilities and rights as parents.

When parents are not married, in contrast, the mother has full rights and responsibilities, but the father does not. Paternity — the fact that the mother’s partner is the biological father — has to be legally established first, and only then does the father officially take on the rights and responsibilities of parenthood.

If I’m not married, how do I legally establish myself as the father of my child?

File a Voluntary Declaration of Paternity (known as a VDP) with the Department of Health. You may obtain the VDP form at the hospital where your child was born, at a local health department office, or at the Office of Vital Records and Statistics.

Can I be asked to supply proof that I am or am not a child's father?

Yes. If you as a possible father refuse to submit to genetic testing freely, the judge has the authority to order you to undergo testing in a paternity case.

Either parent may file a paternity case in court, asking a judge to declare that a specific person is a child’s father. When making this determination, the judge can issue related decisions about child support, custody, and parenting time (visitation).

I’m afraid my girlfriend will put my child up for adoption. What are my rights?

If you, the unmarried biological father, believe that the child’s mother may want to put the child up for adoption, you should establish yourself as legally entitled to a notice of any adoption proceedings.

To protect your rights and interests as a parent, you will need to file a paternity action. Seek legal counsel to avoid missing critical steps or jeopardizing your rights.

If I adopt, will I be in the same position as a biological parent?

Yes. Adoption formalizes the bond between a child and the adoptive parent. The result is a legal relationship that is the full equivalent of biological parenthood.

The Utah Adoption Act sets forth all requirements for a legally sound adoption, and our Salt Lake County family lawyers can help you navigate the process.

What are the steps for getting a divorce in Utah?

The divorce process in Utah starts with a Complaint for Divorce, filed with the District Court in the Utah county where you have lived for at least three months. The court will set a hearing date for your case.

You need not prove anything to get divorced. The Complaint for Divorce in a no-fault filing declares “irreconcilable differences” between the two parties. Most couples file for a no-fault divorce as it is simpler, more efficient, and less intrusive than a court case attempting to prove fault.

How long does it take to get a divorce in Utah?

Some couples can agree on the division of assets and child custody terms. That enables them to move quickly through the divorce.

If the marriage partners can agree on a fair way to divide their assets and if they don’t have children, a divorce can be completed within weeks. If the divorce is not contested, the judge will meet with the parties, go over the filings, and promptly issue the divorce decree.

What if we disagree on the terms of the divorce?

An agreement is not always easy and straightforward. It’s common to rely on a judge to resolve various disputes. In that case, attorneys for both parties will present their cases to the judge in an effort to receive what their clients want. Difficult cases in which the parties wrangle over child custody and property division can take as long as two years, although Utah lawmakers implemented provisions in 2018 to speed up the average time.

Are there any structured alternatives that enable the divorcing parties to hash out these disputes ourselves?

Yes. Utah has designed a collaborative divorce provision in which the lawyers for both sides deliberately work to achieve an agreement through mediation, and Utah Attorney Eric Swinyard will be able to explore that possibility with you if you request it.

No matter which route you take to the next stage of your life, we will work tirelessly to expedite the process and keep your costs down where possible by pointing out where and how an agreement can be reached.

What if my spouse asks me to leave?

Generally, if there is no temporary restraining order, you do not need to leave your home. Your grounds to stay are especially firm if you’re not the one filing for divorce but instead are suddenly taken aback by a demand to move out.

Do hire a Utah divorce attorney. If your spouse demands a divorce and wants you to leave the home, an attorney’s advice is vital. It can keep you cool-headed and help you make legally informed decisions on your living arrangements as well as actions to take to strengthen your position.

Am I giving up my property rights if I leave to keep the peace?

You are not giving up any claim to the house by leaving, but you are also not free from the legal responsibilities to pay the rent or mortgage loan. Keep up your payments and the court will decide later whether you must continue paying after your divorce is final. Much will depend on your income.

Once you leave the home, it may be very difficult to return to retrieve important records. Be sure you have your personal documents. Additionally, create documentation on the spot. Write down what your spouse says while the statements are fresh in your memory. Date your notes. Make it as easy as possible for yourself to confidently explain later what unfolded and led to the Complaint for Divorce.

Will I qualify for (or have to pay) spousal support?

In many cases, one spouse will come away from the marriage with stronger earning potential than the other spouse. Especially at the end of a long marriage, and when there are children involved who require support, the higher earner will likely be called upon to support the other spouse.

Unless the couple agrees on the terms of spousal support, Utah law directs the court to consider many factors when ordering alimony payments in Utah.

What factors will the court consider when deciding on the terms of alimony?

The court considers:

• Whether the person who seeks support is losing a source of income through the divorce because, for example, the two were business partners
• Whether the person who seeks support paid for or otherwise enabled the other spouse to undertake education during the marriage
• Other factors that affect the fairness of spousal support. Note that the best interest of the minor children, if any, will always lead the court’s priorities.

How long must alimony in Utah be paid?

Generally, the responsibility to pay spousal support does not continue beyond the length of time the couple spent married.

In Utah, spousal support will also end upon the death or remarriage of the recipient, or upon the recipient’s cohabitation with a new partner.

If we divorce, could I lose the right to raise my young children?

The court will determine how decisions and time with the children will be divided between you both. Can you come to an agreement on these terms? A judge will accept the parents’ agreement as long as it is in their child’s best interest.

If you cannot agree, then custody becomes a matter for the judge to decide, taking into consideration:

• The way each parent has interacted with the children to date, and how dependent the children are on each parent
• Who is more likely to put the children’s best interests first — including sharing the children’s time
• Each parent’s willingness to shield the child from any conflict between the parents
• Whether a child’s overall well-being will benefit most from joint custody
• Where each parent will live after the divorce
• The wishes of the child, if the child is capable and old enough to weigh in reasonably

What is the difference between joint and sole physical custody of a child?

“Joint physical custody” describes a typical situation in which each of the parents legally gets to spend at least 111 nights with their child. This joint solution does not always mean both people have equal shares of parenting time.

“Sole physical custody” means one parent is entitled to 254 nights with the child. To be awarded the desired custody plan, a parent must show the court a number of overlapping factors, such as keeping relationships between siblings intact and offering a stable, nourishing environment for the child. Note that a court is likely to put a strong emphasis on which parent had been the child’s primary caregiver throughout the marriage.

What does having legal custody of a child mean?

Legal custody is the power of a parent to access information and contribute to decision-making in the child’s spiritual upbringing, schooling and cultural activities, and medical care. Of course, minor decisions about the child’s food, clothing, transportation, and so forth generally need to be made by whichever parent is caring for a child on a given day. In the event of disagreement on any of these things, big or small, the parent may turn to a dispute resolution provision included in their custody plan.

Utah law favors joint legal custody, as it usually serves the child’s best interests.

What if I think I have grounds for an annulment?

For religious or personal reasons, some people might prefer to nullify a marriage. Within an annulment proceeding, just as in a divorce, a Utah judge can order spousal support, child support, child custody, visitation time, and the division of assets. The law permits annulment of a marriage that occurred when one spouse already had an existing marriage to another person, or if one marriage partner married while underage.

Utah law sets forth several further reasons for granting an annulment, such as a serious misrepresentation regarding an issue related to marriage, or a spouse’s refusal to have sexual relations. Annulments are not easily granted. An attorney can tell you if your petition would be viable.

Is legal counsel necessary in every case?

Having an attorney involved, even if you both agree on all terms, will ensure that the divisions of assets and responsibilities are equitable and that the divorce adheres to every relevant provision in Utah divorce law. Should one of the ex-spouses or any family member raise any issues later, you’ll have the peace of mind to know you have acted according to the law in all ways.

To learn more about your rights and options in your particular case, call Eric M. Swinyard & Associates, PLLC at (801) 515-4133.