Determining Gross Income for Child Support Calculation

Gross Income is the Standard

Gross income and child support

When calculating child support Utah uses a parent’s gross income figure.

In Utah, the courts and the Office Recovery Services use a party’s gross income for purposes of calculating child support. At first glance this would seem to cast an unfair burden on because as everyone knows gross income is not the money that one takes home. One would think that the proper amount to use would be a party’s net income.

Fortunately, the Utah Legislature has established some guidelines for child support which take into account net income; however, the guidelines require the use of the gross income figures and then the calculations factor in other things such as taxes in determining the what the child support amount should be.

What is Gross Income?

Gross income is specifically defined as any income, whether earned or unearned. “Earned income” is limited to one full-time 40 hour/week job. The court will consider the income that comes from working more than 40 hours a week only if the parent “normally and consistently” worked more than the 40 hour work week before the original support order is entered.

Government welfare such as housing subsidies are not included as part of a parent’s income.  But “royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from ‘nonmeans-tested’ government programs” are all included as part of the statutory gross income definition.

The code also sets forth guidelines for determining self-employed income. Specifically, self-employment income is determined by deducting the necessary business expenses from the gross receipts of the business. Necessary expenses are only those that will “allow the business to operate at a reasonable level.” The gross income of a self-employed individual for purposes of child support may not necessarily be the same as his gross income for tax purposes.

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What is a Parenting Plan?

Joint Legal or Physical Custody Requires a Parenting Plan

Utah divorce law tends to favor the joint physical and legal custody of children. Just this year the Utah legislature changed the law to make the minimum parent time schedule for non-custodial parents 145 overnights, that is, a joint custody arrangement. Most parents understand that a joint custody arrangement is generally best for children.

Joint custody, however, raises some difficult issues because the parents obviously have had trouble working together in the past. Thus, the legislature has required that parents sharing custody of children put together a written parenting plan that governs the terms of the custody arrangement and which the court can look to in resolving problems between the parties.

What does the Parenting Plan Contain?

The parenting plan is a contract of sorts. It must contain at a minimum the following:

  • Provisions for the physical care of the children;
  • Provisions to ensure the emotional stability of the children;
  • Provisions to accommodate for the children’s needs as they grow older so as to avoid having to modify the plan as the children age;
  • Provisions describing the authority of each parent in relation to the child;
  • Provisions that govern the parents’ behavior so as to protect the children from being exposed to marital conflict;
  • Provisions governing the parents’ behavior so that they will avoid having to involve the court in their future disputes;
  • Any other provision that will promote the best interest of the child;
  • A dispute resolution process, which usually includes a mediation requirement;
  • Provisions allocating authority between the parents for deciding issues regarding the children’s healthcare, education, and religious upbringing.

The parenting plan must be filed with the court before an order of joint custody can be signed. Once it is signed and filed it is a governing document and is incorporated into the divorce decree. Violations of the parenting plan can be adjudicated as contempt of court.

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Divorce Parties on the Rise

It is not uncommon for families to spend enormous amounts of money celebrating a divorce partywedding day. It has been less common for people to spend money on, or even celebrate, their divorce. However, that trend is changing as divorce parties across the nation are on the rise. In some cases, people are even spending as much, or more, on their divorce party as the did on their wedding. We have heard all kids of interesting stories from clients on how the celebrated their divorce. Some have paid for their friends to go with them on a big trip over seas. Others have rented out clubs or restaurants and spent big bucks on food. The craze seems to be catching on. Even those with limited means are more often throwing some kinds of party, at their home, or doing something to celebrate the end of their marriage. What does this say about our society if anything that divorce parties are becoming more common place? I am not sure, and I haven’t yet formed an opinion on it. All I can say is that my client who choose to throw a divorce party are usually the ones who were very happy their marriage was over. Obviously those people who never wanted a divorce in the first place are probably not celebrating their pain and throwing a party.

Divorce Parties Even in Iran

Apparently divorce parties are on the rise not just in the U.S., but in other countries arounds the world as well. In fact, divorce parties are even becoming the cool thing to do in countries with low divorce rates and places you would never expect. For instance a recent article I stumbled upon described the rise in divorce parties in Iran. Now Iran has a very low divorce rate compared to the U.S. but in recent years divorce is rising and so are the number of lavish divorce parties.

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Personal Jurisdiction Over Nonresidents in Divorce Actions

When does Utah have personal jurisdiction in a divorce action

Whether the court has jurisdiction over a divorce action depends on whether Utah’s long arm statute has been satisfied and whether the responding party has minimum contacts with the state of Utah.

Under Utah divorce law, Utah has jurisdiction over divorce cases when the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought for three months prior to the commencement of the action. Utah Code 30-3-1. When reading this statute one may get the idea that so long as one of the parties established a residence here for three months that Utah has the right to drag the other party into a Utah court to answer a divorce petition. This is not the case, however, as there are basic factors of personal jurisdiction that must be present.

In order to have jurisdiction over a non-resident the individual must fall under Utah’s long arm statute. The Utah Long Arm Statute, U.C.A. §78B-3-205 states that: “any person…, whether or not a citizen or resident of this state, who, in person or through an agent, does any of the following enumerated acts is subject to the jurisdictions of the courts of this state as to any claim arising out of or related to: (6) with respect to actions of divorce, separate maintenance, or child support, having resided, in the marital relationship, within this state notwithstanding subsequent departure from the state.” Thus, in order for Utah to have jurisdiction over a divorce, the married parties must have resided here at some point in their marriage.  But the analysis does not stop there.

A court must not only find that the requirements of the state’s long arm statute are met but also that the requirements of due process are met. See Rocky Mountain Claim Staking v. Frandsen, 884 P.2d 1299 (Utah App. 1994). As stated by Defendant in his Motion to Dismiss, “Due process dictates that an out-of-state defendant have such ‘minimum contacts’ with the forum state that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ International Shoe, 326 U.S. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).” Rocky Mountain Claim Staking v. Frandsen, 884 P.2d 1299 (Utah App. 1994). Furthermore the Defendant goes on to state the three part test to determine whether minimum contacts have been established, as follows:

1) “[A] defendant must purposefully avail herself of the privilege of acting in [the forum state] or of causing important consequences [t]here;

2) the claim for relief must arise from the consequences in [the forum state] of the defendant’s activities; and

3) the defendant’s activities or their consequences must have a substantial enough connection with [the forum state] to make exercise of jurisdiction reasonable.”

Rocky Mountain Claim Staking v. Frandsen, 884 P.2d 1299 (Utah App. 1994) (quoting Alameda Nat’l Bank v. Kanchanapoom, 752 F.Supp. 367, 369 (D.Colo.1990)).

If you are contemplating bringing a divorce action in Utah because you may have resided here as a couple in the past, make sure you also consider the minimum contacts that your spouse has or does not have with the state of Utah as that will determine whether the case can be brought here.

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The Common Protective Order Violation

When a protective order is filed against you, there is typically an ex parte temporary protective order served upon you immediately restricting your contact and communication with the Petitioner (the person who filed the protective order), and potentially even third parties such as your children etc. It is very important to not violate, in any way, the terms of the temporary protective order served upon you. Violation of a protective order can result in a Class A Misdemeanor charge or possibly even a felony depending on the circumstances.

Avoid this Common Pit Fall

Often a protective order will restrict your communications with the Petitioner to only be in writing through text or email and requiring such communications be limited to matters involving parent time and the children. Where we continually see people getting into trouble and violating their temporary protective order without necessarily knowing or intending to violate, is when the Respondent (that would be you) emails or text messages the Petitioner about divorce related matters which do not involve the children. Let’s say, for instance, you have been served with a temporary protective order, you also find out your spouse filed for divorce, and you send him/her an email about alimony. You have likely violated the terms of the temporary protective order served upon you since alimony has nothing to do with parent time or the children. Don’t fall into this common trap. The best thing to do whenever you are served with a protective order is to contact an attorney and review the terms of your temporary protective order prior to making any contact whatsoever with the Petitioner.

Violation Can Result in a Permanent Order

Many people do not realize that not only is violating a protective order a criminal offense, but it can also be grounds for a permanent protective order to be entered against you at the hearing. This can be very unfortunate, especially if you have a high chance of having the temporary protective order and matter dismissed at the hearing. Let’s say the allegations made by the Petitioner in the protective order are entirely false and you will likely succeed at the hearing in having the case dismissed. Simply violating the protective order can be enough for the judge to enter a permanent order against you regardless of whether or not the Petitioner’s temporary protective order was justified in the first place. If you have been served with a protective order, call and speak with one of our protective order defense lawyers in Provo, Utah right away.

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Changes to Law for Utah Mandatory Divorce Orientation Class

Current Orientation Law

Currently, Utah State Law requires anyone seeking to obtain a divorce to attend a divorce orientation course if they have any minor children.  The petitioner in the divorce is required to attend the course within 60 days after filing a petition for divorce.  The respondent is required to attend the class within 30 days of being served with the divorce petition.  Utah Code § 30-3-11.4 details the entire law governing the divorce orientation course requirements.  While the law uses the forceful language that a parent “shall” attend the course within a certain time frame, the reality is that many people take the course later on in the divorce proceedings.  The Utah State Legislature recently passed a law in hopes of giving more incentives to individuals to take the class early in the litigation process.

Divorce Orientation Course Changes

Although the time frames to take the class have not changed, the new mandatory orientation class must now be taken by a person seeking temporary orders before the temporary orders hearing can be heard.  This means that if a person wants the court to enter orders temporarily, that is to say until the divorce is actually final, that individual must first attend the divorce orientation class.  A person can still get emergency orders entered pursuant to Rule 65 of the Utah Rules of Civil Procedure before taking the class, but emergency orders are much more difficult to obtain than regular temporary orders.

The new law also allows an individual to attend the course through an online provider.  This allows more availability to take the class, because it was previously only offered through live instruction, or DVDs if a person was out of state or incarcerated.  Additionally, if someone takes the class within 30 days of either filing or being served the petition, he or she cannot be charged more than $15 to take the course.  The new law goes into effect July 1, 2014.

Questions? We Have Answers

If you have questions about the orientation course and are looking to hire a divorce lawyer, contact a divorce lawyer from Provo by calling 801.800.8247.  We can answer your questions about the mandatory divorce classes and help you through the confusing process of divorce.

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The Nesting Arrangement

On some rare occasions during a divorce, a judge may order on a temporary basis, or even under some circumstances on a permanent basis, that the parties share possession of a marital home. This is often referred to as a nesting arrangement and might take a few different forms. It may sounds strange but we have seen a nesting arrangement ordered by the court in a divorce on more than a couple occasions. It is most common for both parents to continue living in the home during or even after a divorce if it is the idea and agreement of the parties and it can be done so in a way to ensure the children’s best interests are still served. It is less common, but still happens, when neither party may desire the arrangement. Now, to be fair, the more common nesting arrangement occurs when the parties divide possession of the marital home. This could look something like a week on week off scenario for the parties or something even dramatically different than that. Maybe one party travels often for their employment and only needs possession of the martial home a few days and nights a month. Maybe the nesting arrangement occurs during a respective parent’s custody time so that the children never leave the home despite there being a regular change in custody occurring. Whatever the case may be, if a nesting arrangement is what you desire, a Provo Utah Divorce Attorney at our office can help give you the best chance of implementing such as an arrangement.

Arguments Against Nesting

If both parents are not onboard for a nesting arrangement, it is often less likely a judge will make such an order. As one can imagine, two divorcing parties living in the same home can often lead to more contention, even if they are not occupying the house at the same times. Court’s are often worried such arrangements will lead to parental contention playing out in front of the children. Thus, it can’t be said that nesting arrangements are preferred methods for possession of a home. There are many other arguments against a nesting arrangement so if your soon to be ex is seeking this arrangement and you are opposed, hire a member of our team to help make the fight for you.

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Dealing With Abuse and Divorce

Unfortunately, many divorces filed in Utah are the result of, or involve, some form of abuse. Often parties to a divorce action are also parties to a protective order, domestic violence charge, or civil stalking injunction. Victim’s of abuse some times put off filing for divorce for fear of how their spouse might respond. While this fear is understandable, a victim of abuse should never put off getting appropriate help and safety. While we are not therapists, law enforcement officers, or abuse counselors, we can provide some general legal information that may be helpful to victims of physical abuse who wish to file for divorce but are worried about their safety in the process.

Contacting Law Enforcement

Of course, if you are ever psychically abused by a spouse, the first step should be to contact the police as quickly as possible. This is especially important if you have children in the home. Your safety and the safety of your children must come first. Do not let fear get in the way of taking this action. Often a no contact order is issued as a result of a domestic violence charge. The system is set up to help the abused spouse and protect them from future harm. You can also contact victim’s services in the area in which you live who can direct you as to the best plan for your safety and the safety of your children.

Filing for a Protective Order

Many victims do not realize that filing for a protective order can put into place an immediate stay away and no contact order protecting you from an abuser. It often makes sense for a married victim to file a protective order prior to or contemporaneously with a petition for divorce. Your spouse will be served by local law enforcement officers with a protective order that can legally order the spouse to stay away from you, any children, your home, school, etc. Your spouse will be given a hearing date to argue a defense but will be temporarily restrained from committing abuses against you. The protective order can become permanent at the hearing if the judge finds evidence of harm, threats of harm, or that harm is likely to occur in the future.

Speaking with a Provo Divorce Lawyer

Speaking with a Provo Divorce Lawyer can help you prepare and take the right steps to get protection from abuse and proceed with a divorce. At our law firm, we offer free consultations and can get you started in the right direction right over the phone. Do not hesitate to give us a call. Your conversation with an attorney is privileged, private, and confidential.

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US Supreme Court Temporarily Stops Gay Marriages in Utah

Gay Marriage In Utah

The issue of gay marriage has taken many twists and turns in Utah over the past few weeks.  A few days before the Christmas holiday, Judge Robert Shelby of Utah’s Federal District Court ruled that Utah’s Constitutional Amendment 3 violates the United States’ Constitution.  Immediately after his ruling, many gay and lesbian couples in Utah flocked to county clerks to obtain marriage licenses.  Salt Lake County immediately issued licenses but the Utah County clerk refused licenses to gay and lesbian couples for a week pending the resolution of the attorney general’s office asking for a stay (stop) to the ruling.

Utah’s Attorney General’s office asked Judge Shelby to stay his ruling pending an appeal to the 10th circuit Court of Appeals.  Judge Shelby refused so the state asked the 10th circuit to stay the ruling.  The 10th circuit denied to pause new marriages too so the state appealed to the US Supreme Court.  Yesterday, the US Supreme Court granted the state’s request for a stay.  The Court’s decision temporarily halts any new gay marriages until the case completes the appeals process.

No Same-Sex Marriage Means No Same-Sex Divorce

The Supreme Court’s decision not only halts future same-sex marriages, it stops any same-sex couples from filing for divorce in Utah.  The Court’s decision essentially reverts Utah marriage law to the way it was before Judge Shelby’s ruling.  This means same-sex marriages in Utah are not recognized and cannot be terminated.  In other words, married gay and lesbian couples in Utah cannot be granted a divorce by a Utah court.  News sources reported that after the legalization of gay marriage in Utah some same-sex couples filed for divorce.  These couples were married in other states where gay marriage is legal.  As Utah residents, however, they could not divorce because Utah law prohibits Utah courts from granting divorces of gay and lesbian couples.  Once again, these couples cannot divorce and they are denied the benefits of family law related protections such as child custody and property division orders.

Help for Divorcing Same-Sex Couples

Provo Divorce Lawyers will closely follow the issue of same-sex marriage in Utah.  Though same-sex divorce is not currently allowed in Utah, there may be different things a Provo Divorce Lawyer can do to help those gay and lesbian couples looking for divorce options.  Call 801.800.8247 to speak with a Provo Divorce Lawyer today.

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Possible Divorce Orientation Class Changes Coming in Utah

Requirements of Divorce in Provo

In order to be granted a divorce in Provo, a person must satisfy certain requirements.  There are many legal requirements such as residing in Utah County for three months, waiting 90 days after a divorce is filed, and attending mediation before having a judge decide the contested issues of the divorce.  One requirement unique in Utah is the requirement that all divorcing persons with children must attend a divorce orientation class.  This class is intended to inform those divorcing how the legal process works, the implications of divorce, and the availability of other options.  Currently, the class is supposed to be taken within 60 days of filing for divorce.  If Rep. Jim Nielson has his way, however, this class will have to be taken before a divorce can even be filed.  Some Utah divorce lawyers in Provo, Orem, Heber, and the surrounding areas are opposed to the proposed changes.

The Problem of the Divorce Orientation Changes

Provo, Orem, and Heber divorce lawyers are opposed to the proposed change because it places another burden on individuals seeking a divorce.  The class itself seems unnecessary but to have it required before a divorce can even be filed places an unnecessary burden on individuals in Utah, Wasatch, and surrounding counties.  People often need temporary orders issued quickly in a divorce because of abuse or neglect of a spouse.  Requiring individuals to first take the divorce orientation class before a divorce can be filed delays needed help from the court.

The Administrative Office of the Courts also expressed concern that the change in timing could affect people’s access to the courts.  Rep. Nielson’s proposal is an unnecessary intrusion into the divorce process.  At this point the proposal is not yet a proposed bill.  Hopefully many people and divorce lawyers will speak up and inform Rep. Nielson that his proposal is not a good idea.

Contact a Lawyer in Provo Today

If you or someone you know is thinking of filing for divorce in Utah County Wasatch County, or any other county in Utah, contact a Provo Divorce Lawyer today.  A Provo Divorce Lawyer will walk a person through each step of the process, including the divorce orientation class.  Call 801.800.8247 to speak with a lawyer today.

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