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David R. Hartwig, Esq.
Family Law & Divorce
Attorney & Counselor at Law
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On behalf of David Hartwig at David R. Hartwig, Esq.

How is custody determined?

Custody is determined in one of two ways: by agreement or by court order. You and the other party can reach an agreement at any time, but make sure that you fully understand the effects of your agreement. If not, then the matter will go to court, and you probably should have a custody evaluator appointed to determine what the children’s best interests are, and what, if any, problems the other parent presents to the children. You need to get the custody evaluator appointed very early on in your case, so don’t wait until just before trial.

How do I change custody?

If you and your parenting partner change custody of a child, or want to change custody after a custody order has been signed, you will need to have a modified order entered by the court. To do that, if both you and your parenting partner are in agreement, your attorney can draft a stipulation and final order. If you and your parenting partner do not agree, then you need to file a petition to modify the custody order. Either way, your attorney should help you prepare the appropriate documents to fully address all associated issues, such as parent time and child support (including all of the financial documents the courts require), along with the change in custody. See Changing Custody.

How do I change child support?

The simple way is, if both you and your parenting partner agree, then your attorney can help you prepare a stipulation and order, as well as the required financial documentation the court requires. If the other party does not agree, then you need to file a petition to modify the child support orders. There is one exception to this process, and that occurs when a child is emancipated under the current support orders. In that case a notice needs to be filed with the court along with an appropriate order changing, or terminating, the current child support orders. See Changing Child Support.

How do I force the other party to take the ordered parent time?

You really cannot force the other party to take his or her parent time if he or she does not want to. But, what you can do is use that refusal to review the custody arrangement and child support orders to see if they should be changed. With all of the joint custody orders, child support is often lowered because the other parent has extra “nights.” If that parent is not taking that time, then you may want to use that failure to address those issues, and increase (or decrease) your child support obligation. See Enforcing Orders.

The other party is making nasty or inappropriate comments, or telling lies, about me to our child, or children. What can I do?

That depends on what the current order of custody says, and if it includes restraining orders prohibiting that kind of conduct. If the order prohibits the conduct, then you can file a motion seeking to have the other party held in contempt, and punished for violating the order. If not, then you need to file a petition to modify the current orders to include restraining orders prohibiting that conduct. Additionally, depending on the facts and how the children are reacting, you may want to file a petition to change the parent-time orders to protect the children from the other person’s bad behavior by limiting parent time. Putting children in the middle through such bad conduct could be child abuse, or an attempt to alienate the children. Talk with me about challenging the problem. See Enforcing Orders and High Conflict.

What do you do if there is an agreement, but one parent unilaterally changes it making things more difficult, challenging or uncomfortable?

Has the agreement been made an order? If so, then you have the option of asking the court to force the other party to do as agreed by way of contempt. If there is no order, then you need to take appropriate steps to get the matter to court for resolving the issues and entering an order. One important thing to keep in mind is that you should move quickly. If you go along with the changes over a period of time, you may be agreeing to the change simply by living that change. See High Conflict and Enforcing Orders.

Is Utah a “community property” state?

No, it is not. In general if you have your own property and you get married, it does not automatically become marital property, so long as you keep it separate and don’t change it or improve it with marital funds. But understand that increase in value, of say a house, solely due to market improvements is divisible in a divorce. See Property Division.

My girlfriend is pregnant, or just had a baby. What are my rights?

If you have not filed an official acknowledgement of paternity, filed with the courts to be declared the father, or been declared the father by the state of Utah through the Office of Recovery Services (ORS), you have no rights. That means the mother can do whatever she wants with the child, and you have no say. Plus, if you do not file to have your rights determined before the mother consents to an adoption, you have completely lost your rights. So, as soon as you hear she is pregnant you need to officially file to have your paternity declared if you want to be in the child’s life. See Paternity.

My girlfriend is putting our child up for adoption, what can I do?

You need to follow the specific instructions set out in the Pre-birth Notice. That notice is required by Utah state statutes to be served by you on the mother. If you fail to comply within 30 days, you lose your rights to fight the adoption. See Paternity.

The other party is not following the orders on parent time, what can I do?

That depends on what the current custody order says, and what, exactly, the other party is doing.

If the other person is simply not exercising his or her parent time, please see “How do I force the other party to take the ordered parent time” FAQ.

On the other hand, if the other person is causing problems with pickup or drop-off; being consistently late; not returning the children; or causing problems and difficulties during the transfer, you and your attorney can file a motion seeking to have the other party held in contempt, and punished for violating the order. You may be able to force compliance with the orders, obtain makeup time, and perhaps even be awarded your fees and costs incurred in filing the motion and attending the hearing. It all depends on the actual facts.

Why do I need an attorney?

Let’s face it, divorce can be difficult and complicated. Like many things in life, you can try doing it yourself, or actually hire someone to do it for you. It all depends on how certain you want to be about your results.

The court rules can be complicated, and if you don’t follow them you could get into trouble. The court forms don’t explain things, nor do they provide you an avenue to explore your options and understand the consequences of the contents of the forms. That means you end up signing and filling out a bunch of forms with words and phrases that you don’t understand, which may actually turn out to be harmful to you in the future.

If you have children; house and land; retirement accounts, trusts or other such bank accounts; a long marriage with disparate incomes; or anything other than simply walking away from the other person, you should have an attorney assist you — to educate you as to your options, and the potential consequences of your choices, if for no other reason.

What are Fathers’ Rights in Utah?

The Utah Supreme Court says that, if all things are equal, there is no preference for the mother. But from my experience, the courts often seem to not make all things equal. So, you have more of an uphill battle if you want to fight for anything like equal custody.

A lot will depend on the facts of the case; you will need to document details of problems or abuses. And, you cannot use the child directly — never put the child in the middle by asking what they want, who they want to live with or anything like that.

In general, the standards and procedures for determining custody apply: If there is no agreement between you and the mother, then the matter will go to court, and you probably should have a custody evaluator appointed to determine what the children’s best interests are, and what, if any, problems the other parent presents to the children.

Before you even start to think about an agreement, or mediation, you need an experienced family law lawyer working with you to explain what joint custody actually means, and help you avoid the pitfalls of just going with legal joint custody — which could end up giving you no rights whatsoever on how to raise the child, and leaving you with the standard weekend visitation.

What are Mothers’ Rights in Utah?

The Utah Supreme Court says that, if all things are equal, there is no preference for the mother. But from my experience, the courts often seem to not make all things equal. So, you have a bit of an advantage if you want to fight for custody.

A lot will depend on the facts of the case; you will need to document details of problems or abuses. And, you cannot use the child directly — never put the child in the middle by asking what they want, who they want to live with or anything like that.

In general, the standards and procedures for determining custody apply: If there is no agreement between you and the mother, then the matter will go to court, and you probably should have a custody evaluator appointed to determine what the children’s best interests are, and what, if any, problems the other parent presents to the children. It is through the custody evaluator that we can present problems the children are experiencing.

Before you even start to think about an agreement, or mediation, you need an experienced family law lawyer working with you to explain what joint custody actually means, and help you avoid the pitfalls of just going with legal joint custody — which could end up giving you no rights whatsoever on how to raise the child, and leaving you with the father having extended visitation, so as to reduce his child support, but not actually taking the children for that time leaving you with full-time custody, but receiving support for only part-time custody.

What is a Prenuptial, or Postnuptial agreement, and why is it useful?

A prenuptial agreement is an agreement, or contract, in writing that people enter into prior to marriage. The agreement addresses how various property, businesses and assets are to be held, and divided up if there is a divorce. Utah law requires detailed disclosures about assets (including valuation) in the agreement, and does not allow for provision to exclude support obligations such as child support or spousal support.

A postnuptial agreement is a similar agreement, except that the parties are married when they create the agreement. The same abilities and restrictions apply as in a prenuptial agreement.
These agreements generally occur when there are special family financial circumstances involved — I’m sure the Trump’s children have experienced all such issues before they got married. If you think you may want such an agreement, contact an experienced family law attorney to review your situation. Don’t just hire someone to write one up without full disclosure and fully reviewing the benefits of such an agreement.

I have worked on both sides. I have worked on creating prenuptial agreements for some wealthy and confidential clients, and I have litigated cases to both enforce and set aside a prenuptial agreement. So, I know what can go wrong. I am an experienced prenuptial lawyer and postnuptial attorney.

What is the value of Professional Degree in divorce?

Professional people going through a divorce can have a more difficult time, and experience greater conflict. Often assets and income are higher, and the other person may claim rights to the professional degree. This happens most often for doctors, dentists and attorneys where the other spouse “supported” them while they attained their professional degree and built their practice.

I have handled these types of divorces, and I am familiar with Utah law on this issue, which basically is that the degree itself has no financial value, where the business, including goodwill can have value, including future increase in income. I am a professional’s family law attorney, and a high net worth divorce lawyer.

Things get very touchy, and nasty, where one spouse believes that he or she “deserves” special treatment because of professional degrees and the associated business, financial and social affiliations.

What is an Annulment, and can I get one?

An annulment is a termination of a marriage ab initio, or as though it never happened. If you obtain an annulment, then you were never married. People often seek annulments for religious purposes for that very reason — they can say they were not married.

In Utah, the reasons for allowing an annulment are limited. In essence, those reasons all go to the fact that there was some fraud, or major misrepresentations made to induce the other party to enter into the marriage.

To determine if you have the grounds for an annulment, you need to work with an experienced family law attorney who has actually obtained annulments for people. I am an experienced family law attorney and annulment lawyer.

What is a QDRO?

QDRO stands for “Qualified Domestic Relations Order.” It is an order from the court to a retirement plan administrator telling that person how to divide a retirement, or another similar plan, after a divorce.

QDROs were essentially created because the plan administrators needed orders from the court to carry out the terms of a divorce decree when retirement, or other similar accounts were divided in a divorce. Statute sets out the details of what information is required to be contained in that order, and the divorce decree itself can contain all of that required information. But, the divorce decree also contains a lot of other, potentially very personal, information that a party may not want to broadcast to other people.

So, the QDRO was born. It is an order of the court pertaining solely to the provision of the division of retirement assets, and included the required information.

I have created QDROs as well as participated in litigation concerning QDROs.

The divorce awarded me some of his retirement, how do I get it?

The divorce action is only between you and your former spouse. Other people or entities, such as retirement plans, are not usually part of the divorce.

To actually claim the share you were awarded, you need to prepare, file, and serve a QDRO on the plan administrator for each account you were awarded an interest. And, you need to do it timely, for they all run on a first come, first served basis. That means that if you were a first ex-spouse, and the other party marries and divorces again giving the second ex-spouse a share of the retirement, the second ex-spouse may take the retirement if your QDRO wasn’t filed before hers.

So, if you were awarded a retirement, or similar account, in your divorce, hire an experienced family law attorney who has handled QDROs. I have both created QDROs and participate in litigation concerning QDROs.

“High-end” or “high-asset” divorces

I am aware that people with high-end lifestyles with huge assets have complicated lives, and very complicated divorces, which can include the assistance of forensic accountants, business and asset valuation, and various claims of unsavory behavior to gain a supposed advantage in the litigation.

I also know of, and heard of, attorneys who vary their hourly rates based upon what they perceive as your ability to pay “high-end” rates. Attorneys who promise the moon, so long as you pay their higher than normal rates.

I have been involved in these types of matters, as well as ancillary litigation involving defamation and fraud allegations (fraud on the court, fraud in disclosures and the like). Those ancillary cases can be extremely valuable in the overall result of the divorce action. And, I have always work while charging only my base hourly fee, without regard to your high-end lifestyle.
So, if you are in that financial stratum, why pay extra? Why pay for pretty and expensive office space? I have 30-plus years’ experience, and you get charged the same rates without regard to your “lifestyle.”

Do I have to go to court?

Yes, to the extent that you must file a case with the court, but you may not actually have to appear at court. It all depends on your case, and the issues raised.

If you ask for help, such as temporary child support, or custody, while the divorce case is pending, you will most likely need to appear at court for the hearing on a motion for temporary orders. If the divorce case is contested, you will need to appear at court for any pretrial conferences, and for trial.

But, if you settle the case through mediation, or otherwise, then actually finishing the divorce will be all paperwork, and you will not have to appear.

What is parental alienation?

Parental alienation may be a syndrome where a child refuses to have any contact with a parent. I say “may” because I’m not a psychologist, and from what I read, there are questions about whether this is actually a syndrome or not.

The usual circumstance seems to include one parent who bad-mouths the other parent, with the child’s full knowledge and exposure. Or the parent “buys” the child’s loyalty and refusal to be with, or talk with, the other parent.

It can occur out of other pathologies not related to divorce, but claims from parents about parental alienation do arise, particularly in high-conflict cases.

If that happens, the child will require counseling, and there may be required reconciliation therapy and corrective therapy with the parents. This will be an active matter with various disciplines involved: counselors for the child and the parents (individually or perhaps with the family); attorneys for all matters involved; a Special Master appointed to handle day-to-day issues; and the court to fully ensure all parties involved follow through with the treatment and plans. Special Masters are typically attorneys with extensive training in high-conflict resolution. When appointed by the court, they can compel parties to comply with their recommendations.

What is Legal Separation?

A legal separation is essentially identical to a divorce, but one remains married at the end of the process. Yes, you will be legally apart from your spouse for financial, and other, responsibilities. But, you will remain married.

A legal separation does make sense in certain scenarios, such as one person has medical problems and requires insurance coverage but cannot stand the spouse. So, that person can file for a legal separation, to be rid of the spouse for all intents and purposes, but will remain married so that the person can still be carried on the other spouse’s insurance programs.
I have represented spouses in legal separations and am a legal separation attorney.

What is a “Gray” Divorce?

Whether we like it or not, the baby-boom generation is turning gray. A lot of baby boomers are aging and learning that their marriages are not the lived happily ever after they thought it would be. One party or the other is moving in a different direction, and causing discord in the relationship.

Those “gray” baby boomers are getting divorced. The rate of divorce seems higher than it was for previous generations. One can claim that overall people live longer, and are more vital in those “gray” years. They want to live like they were in their 50s. So, they get divorced.
But, they then learn about the various financial and asset issues associated with a divorce. Such things as having to divide retirement accounts, with no real chance to make up the losses.

Gray divorces can be very difficult, particularly in light of the parties’ future ability to earn and replace lost income or assets. Careful financial planning is required, and most likely a significant downsizing of lifestyle.

If you are among the “graying” group and contemplating a divorce, affiliate with an experienced family law attorney. I, for one, have over 30 years’ experience in family law.

What is “common-law marriage”?

A common-law marriage is a marriage that has not been solemnized. In other words, the parties have not gone through a ceremony to be married.

In Utah, statute controls having a common-law marriage validated by a court or administrative order. There is no automatic common-law marriage that occurs simply by living together for any particular length of time; it must be validated by an order to exist.

There is a time limit of one year after the termination of the relationship in which one must petition for validation of the marriage. If one does not file within that year, then one cannot have such a relationship validated as a marriage.

So, if you are in a position where you need to have your relationship validated, move quickly and retain an experienced family law attorney.

How can I stop child support payments if a child is coming to live with me?

You can only safely stop making child support payments when the order requiring you to do so is changed. If the child is going to live with you, you need to change the custody and support orders, including perhaps having the other parent pay you child support. Your attorney will need to prepare the appropriate documents to file with the court, including financial information. Once the new order is signed, you can safely stop paying child support.

An absent parent of a number of years wants to visit all of a sudden, what should I do?

First thing to determine is, do you have an order of custody and visitation? If yes, then what does the order say? If it allows visitation, but the other parent has not exercised it, you may want to file with the court to change those orders.

If you don’t have an order, then you will probably need to file a paternity action to determine custody and parent time.

In either situation your best bet is to file such an action, have a reunification plan ordered by the court and then see how the father complies and if things work out. That is the best bet for protecting your child, while safely learning if the father can be around the child.

Can I sue for alienation of affection?

The simple answer is yes. The real question is, will you win? That depends on the facts of your case and your ability to prove damages. Utah law does recognize alienation of affections.

How can I get my name removed from a mortgage? Does signing a quit claim deed remove me from the mortgage?

Signing a quit claim deed just transfers whatever interest you hold in the property to the other person. It does not change the mortgage or your relationship with the bank.

In order to get your name removed from the mortgage, the mortgage needs to be paid off, or refinanced. Your divorce decree should have a provision concerning how that would work, and the time frame involved to accomplish it.

If the other party is not following the order or the bank is coming after you, you will need to file with the court asking it to force the other party to comply, and perhaps hold the other party in contempt. You may also be able to gain some compensation, if you lost money, and you may be awarded attorney fees.

I have children who don’t want to see their other parent. Should I let them decide to not go on visits?

No. You should never put the children in the middle of your dispute with the other parent. They are children, and custody and parent time are adult issues to be worked out by the parents, with the court if necessary.

If there really is a problem, you need to hire an experienced family law attorney to help you determine what the problems are, and how to handle those problems. Options may include counseling, a visitation evaluation, and going back to court to change the parent-time orders.

What can I do if my ex and new spouse are alienating me from my two children?

You need to hire an experienced family law attorney to help you assemble all of the evidence available to document the alienation, and then put it all together in the appropriate court pleadings. You then need to petition the court for orders changing custody and addressing the alienation issues.

This will be a complex matter, because you cannot force the issue, you will need a multidimensional team to help the child re-establish a healthy relationship with you; probably individual counseling for your ex, and the ex’s new spouse; perhaps a Special Master to handle the various conflicts that will arise along the way; and, if you cannot work things out, a custody evaluator for trial.

It is a lot of work, and you need an experienced family law attorney to assist you from the very beginning, so that you have all of the facts and evidence you need if you have to go to trial.

Is having my child around my new boyfriend/girlfriend a problem?

The answer to that depends on where you are in life. It also depends on what you mean by “around” — just there on rare occasions or spending nights and weekends.

If you have just separated and not filed for divorce (or a paternity action), it can become a real problem. The other party can use it as a claim against you, particularly if the friend is spending nights. The other party will argue your moral unfitness to have the child, etc. And yes, the courts could take that into account.

If your divorce (or paternity) case is filed and pending, you face the same problems mentioned above.

My basic advice to clients during a pending case is to not expose the children to a new “friend.” You can do what you want on your own time; like when the children are with the other party. But it is best to not expose the children to the “friend” during litigation. You know children will talk, and if you tell them to keep secrets about the “friend,” you are putting the children in the middle, and damaging them.

After the divorce (or paternity orders) perhaps. But, be a good parent and be considerate of your children. And, don’t be the one who runs through a whole string of “new friends.” Doing so might cause the other party to take you back to court, alleging your behavior with all of those “friends” is a bad influence on the child.

What is estate planning?

Very simply, estate planning consists of ways and means to handle your estate, your property (including real estate, bank accounts, vehicles and other personal property) and any powers you may have. Again, on a very basic level, the reason for an estate plan is to control how your estate will be handled upon your death. There are many options, including a will, trusts, LLCs, or simple designation of beneficiaries on various accounts. To determine what is best for you, work with an experienced attorney.

How do I avoid probate?

In my opinion, there are few reasons to worry about avoiding probate, with the only real reason being if you are sufficiently wealthy that you would have to pay estate tax (we’re talking about something like $1.3 million for a single person or $2.6 million for a surviving spouse). If you are not in the economic bracket, then I don’t see a good reason to want to avoid probate, which is just a process to “wind down” your assets and liabilities, upon your death. Probate gives notice of your death to the “world,” so that if anyone has any claims against you (technically against your estate) then that person has to timely submit the claim, or be barred. That provides your heirs security in the future.

Why do I need a Will?

A Last Will and Testament is a formal statement of how your estate (everything you own or control) is to be divided. In a Will, you get to designate who gets what, and you can exclude people from taking anything of yours should you want to. And, you can designate people, or entities (charities for example), to receive a portion of your estate rather than just having relatives take a share.

If you do not have a Will when you die, your estate will be divided under the laws of intestate succession. Those laws designate the order in which relatives will take portions, or items, of your estate.

So, if you want to designate who gets what of the items you obtained, and hold dear, during your life, a Will is the way to go.

My spouse cheated on me. Can I use that to my advantage in the divorce?

You can use that fact as the grounds for a divorce, but absent special circumstances it is of no use otherwise.

Yes, the Utah statute addressing alimony does include the concept of “fault.” But the Utah Supreme Court has significantly curtailed using fault in determining alimony.

Depending on the facts, particularly if the children were exposed, you might be able to use those facts in determining custody. Overall, things fully depend on the actual facts of your case. I can help you figure it out.

My ex-spouse is cohabiting, can I stop paying alimony?

The short answer is that it all depends on facts. The Utah Supreme Court has issued an opinion that makes it very difficult to prove cohabitation to a sufficient level to terminate alimony. I can review your facts, and see if they will meet that standard, and if so, we can file a petition to terminate alimony.

I am David R. Hartwig, Esq., a Salt Lake City attorney with extensive experience helping parents resolve simple or high-conflict custody issues reaching arrangements that work for children and parents. Child custody involves parent-time and visitation schedules, and can affect support. I help in all of these areas, providing comprehensive service clients need to achieve their custody goals.

Factors In Child Custody Decisions

As an experienced Utah child custody lawyer, I understand that custody cases may become a contentious issue even years after an order is finalized. The trend in Utah toward joint custody often creates messy, unworkable situations, which ultimately lead to enforcement issues when parents do not abide by their custody orders.

The best interests of the child must be considered, including:

• Whether joint legal or physical custody will benefit the child’s physical, psychological and emotional needs, or the child’s development

• The parents’ ability to give first priority to the child’s welfare, and reach shared decisions in the child’s best interest

• Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent

• Whether both parents participated in raising the child before the divorce

• The distance between the parents’ homes

• The parents’ maturity and their willingness and ability to protect the child from conflict that may arise between the parents

• The parents’ ability to cooperate with each other and make decisions jointly

• Any history of, or potential for, child abuse, spouse abuse, or kidnapping

• Any other factors the court finds relevant

Despite the complicated and sensitive nature of custody matters, I have helped many clients successfully establish custody orders.

Get Help With Your Child Custody Issue

If you have a child custody issue, please contact me, David R. Hartwig, Esq. I am an experienced Salt Lake City custody lawyer dedicated to helping clients resolve complex custody issues and implement necessary custody orders. For high-conflict cases, I am also one of the few Utah child custody modification attorneys trained as a Special Master for ongoing dispute resolution.