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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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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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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