Hosted By: Dan Couvrette, Publisher, Family Lawyer Magazine and DivorceMag.com
Guest Speaker: Kayla Quam, a Utah family law attorney, Dart, Adamson & Donovan (DA&D) Attorneys at Law
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Read the Transcript of this Podcast Below.
If the payor is constantly late or “short” with his/her child-support payments, what can the recipient do to ensure receipt on time and in full? Can the custodial parent withhold visitation until he/she received payment?
In Utah, one is entitled to go through the Office of Recovery Services, known as ORS, a governmental agency, to have child support collected. If you have a child support Order, ORS can also collect alimony if it is reduced to a court order. If there are other child-related costs that have been reduced to Judgment, meaning the Judge rules that amount is due and paying, ORS may be able collect that, as well.
ORS does its best to locate opposing party’s employer through the governmental database searches. Once they locate where opposing party works, ORS goes through the employer to garnish wages when the employee is paid and redirect those funds to the party receiving child support on behalf of the child.
ORS has enforcement tools, such as the ability to intercept tax refunds, seize passports, driver’s licenses, professional licenses, hunting/fishing licenses and things to that effect. There are other enforcement tools ORS has available to it, as do private attorneys.
It is important to get a clear order on child support and child-sharing costs so ORS knows what to collect. ORS mandates certain support language be included in the Orders, but that can be determined by reviewing the statutes on child support. ORS charges a small fee to collect child support, but it is nominal compared to the support.
If a party is timely with support and pays the correct amount, there is no need to go through ORS unless the client prefers that.
If co-parents never discussed who was to pay for their children’s college during their divorce, can one force the other to pay for some or all of the costs when the children are ready to go to college?
The normal rule is child support terminates when a child turns 18 or graduates high school, whichever is later. A judge will not order support over that limit unless the child has special needs. That said, parties can and often do stipulate to more support if they can afford it. Parties stipulate to cover children’s college costs, room/board costs, vehicle and insurance payments, and sharing the health insurance premium until the adult child turns 26 or is no longer allowed on his/her parent’s insurance. It is important to note: Parties can agree to almost anything they want, and the Court will Order the same, so long as there is a joint, written agreement. The only exception to the ability to contract freely is if the parties try to agree on the waiver of child support, which belongs to the child and cannot be waived by a parent.
Upwards of 95% of cases settle outside of Court, so parties have a lot of control and leeway in deciding the terms they will settle upon.
What are the factors determining who has to pay child support? How does this differ from alimony?
Child support is determined by a simple Child Support Calculator that can be found on the website of Utah Office Recovery Services. One would plug in the parties’ gross monthly incomes, the amount of overnights each party has with the child/children. There are a few other boxes that aren’t used as often, such as if one is paying child support for children from another relationship or has children from other relationships living in the home with him/her. After entering that information, the Calculator determines monthly child support.
Unlike child support, alimony uses net monthly income, meaning after taxes. There is no set formula for alimony in Utah. Courts look to the recipient’s net monthly income less his/her monthly expenses based on the standard of living. If there is an unmet need, we then look to the payor party, to determine if there is a surplus or deficit after applying that party’s net income against the monthly expenses. If there is a surplus that can meet the recipient party’s needs, that is the alimony award. If both parties have a monthly deficit, we equalize the shortfall. A nicer standard of living would support a higher alimony award.
How does a joint custody agreement usually work? Is there a difference between joint legal custody and joint physical custody, or are they the same things?
Legal custody is the ability to make important decisions about the child or children. Usually, those “important decisions” involve medical, education, and religious decisions. It’s the ability to decide if children should get braces or undergo surgery, what religion or school that child should attend, whether the child should go to private or public school, etc.
If the parties have joint legal custody, which is the presumption in Utah, both parties get to be involved in that decision-making process. If the parties cannot agree, we have a mechanism to be placed in the Decree, outlining what should occur in the event of an impasse, such as consulting with necessary professionals or even deferring to the professional’s recommendations. In the event of an impasse, the parties could attend mediation, go to Court, or one party could have final decision-making authority, as examples. There is a myriad of dispute-resolution mechanisms.
Physical custody is the amount of overnights each party has with the children. As long as the non-custodial party has at least 1/3 of overnights, the parties share joint physical custody. It’s a common misconception that substantial daytime parent-time would be considered joint physical custody. The focus is on the overnights, though day-time parent-time is certainly important to showing a party’s role in his/her children’s lives.
If you have joint physical custody, the parties need to share in the child-related costs, in addition to child support.
If there is a lot of conflict between the parents, is joint custody still a possibility?
The ability to co-parent and encourage the child’s relationship with the other party are factors of joint physical custody. I always encourage my clients to take the high road, to co-parent well, and to seek the assistance of professionals if there is substantial conflict. Sometimes conflict cannot be avoided. When possible, family systems therapy with an AFCC-informed therapist would help. We can also use co-parenting coaches, special masters, guardian ad litems, or other professionals to help with high-conflict cases. In some cases, we need to rely on custody evaluations to assist the court in what custody schedule would be in the children’s best interests.
Can you describe the different types of custody arrangements available for divorcing parents?
Parties can agree to any custody schedule that works for them. If someone travels often, works three 12-hour shifts, or works the night shift, we have to get creative with schedules.
The most common schedules are the following:
Utah Code 30-3-35 schedule is where the non-custodial parent has every other weekend, from Friday at 6 p.m. until Sunday at 7 p.m., plus a 3-hour visit every week, often for dinner, from 5:30-8:30 p.m. on Wednesday night if no other day is designated by the non-custodial parent. There is more extended summer parent-time and the equal sharing of holidays.
Utah Code 30-3-35.5 is a similar schedule but more reduced with ramp-ups for children 5 and under.
Utah Code 30-3-35.1 (“fat weekend”) is every other weekend, from Thursday after school until the following Monday morning, drop-off to school. On the off week, the non-custodial parent would have a Thursday overnight, drop off to school on Friday morning unless a different midweek overnight is designated. Again, there is more extended parent-time during the summer and the equal sharing of holidays.
Utah Code 30-3-35.2 provides for 50/50 parent-time. When children are younger, it can be more difficult to be away from one party for a long period of time, so we’ll do a 2/2/3 or 2/2/5/5 schedule. 2/2/3 schedule is where Parent A has the children Monday and Tuesday, Parent B has the children Wednesday and Thursday, and then Parent A has the children Friday, Saturday, and Sunday. The following week, the parties switch, where Parent B now has Monday and Tuesday, Parent A has Wednesday and Thursday, and Parent B has Friday, Saturday, and Sunday. 2/2/5/5/ is where every week Parent A has Monday and Tuesday, Parenting B has Wednesday and Thursday, and the parties rotate the weekend. That means a parent has 5 days in a row.
With 50/50, parties can still share holidays equally and have lengthier summertime breaks (uninterrupted) of 2 weeks if desired.
Then we have one week on, one week off, if the parties and children do not like as many exchanges and the children are older and can handle the longer distance from both parties.
In our Stipulations, we often say “parent-time shall be as the parties can agree, but in the event they cannot then X.” That allows the parties to regularly work with one another, but in the event of an impasse, have a firm schedule.
How can a parent increase his or her chances of being awarded the primary custody of the children in Utah?
Be a good co-parent, encourage the children’s relationship with the other parent, do not involve your children in the divorce lawsuit or speak ill of the other party. Recognize that your children are one-half you and one-half your ex, so if the children are encouraged to dislike or even loathe the other party, that is internalized in a very unhealthy way and breaches children’s emotional and intellectual boundaries. Use all the time you’re allotted with your children; don’t miss parent-time. Be involved in your child’s school and activities, get to know who the child’s friends are, what your child’s interests are. Sign your children up for their medical/dental appointments and extracurricular activities and take them. Help with homework and get the children to school on time. Communicate with the other party about concerns with the children, keep them apprised of updates, and respond timely. Not only is that the best thing for your children, but the other party will often feel better, return the favor and rise to the occasion if you treat and expect the best from him/her.
Is it possible to relocate with my child once I have a custody award?
Relocation is tricky. As children age and become more rooted in a community, school, have their core friends, have their professional teams who know them well, the Court will be more hesitant to order the move. It is easier when the children are younger and aren’t as entrenched in the community. The reason for the move is important—is it change scenery or is to be near family support and a great job opportunity. If parties share 50/50 custody, it will be more difficult to move than if the relocating party enjoys sole custody or the non-custodial parent has not been exercising the time allotted to him or her. Showing how the children will benefit from the move may help, but it will still be an uphill battle. A custody evaluation may be needed to aid the Court in the difficult determination.