Picture of Attorneys Mckail Hamilton & Russell W. Hartvigsen
THE LAST ATTORNEYS
YOU WILL EVER NEED

The Common Misconceptions of Divorce: You Deserve the Truth

Time and time again, our attorneys at Atticus Legal Group receive phone calls from prospective clients, many of them assuming they already understand Utah law and their rights while proceeding with a divorce. Many of our prospective clients have spoken with friends and family who have undergone a divorce, and believe that the results of their case will resemble the results of those closest to them (for better or worse). Some of our clients even depend on their spouse's advice (when the client is divorcing said spouse, the information is rarely accurate).

Here at Atticus Legal Group, we want you to understand the truth behind divorce. Whether or not the truth is what you want to hear (depending on whether you are a mother or father, husband or wife), you deserve it.

Please review the actual advice an attorney can and should provide to any spouse or parent. If you have further questions, please contact Atticus Legal Group, LLC at (801) 784-0529.

If you're a father, you still have a chance at joint (or even sole) physical custody. Utah is no longer the prejudicial, biased, state it once was. While many families still have "breadwinner" and "homemaker" roles in the household, and this does effect a custody schedule, the gender of the parent plays minimal role in custody awards.

Probably the most common misconception we attorneys face is the notion that a father cannot receive more than "minimum" parent-time. In Utah, the court determines custody based on the best interests of the minor children.

If you're a father, and you have been significantly involved in your child's life, do not settle for standard parent-time. There is a wide range of options, from expanded parent-time to joint physical custody on an equal time-sharing basis.

"Minimum" parent-time (every other weekend and one weekday evening) is not the only schedule. The standard parent-time schedule (i.e. the "minimum" parent-time schedule), is often not the default schedule. The courts have been leaning toward joint physical custody schedules, often by awarding expanded parent-time (which is a joint custody arrangement). Under expanded parent-time, one parent will exercise midweek overnights and every other weekend Friday through Monday morning.

Parents can agree to any custody schedule they desire. They may decide to divide summer parent-time more evenly between them, they may agree to expanded parent-time during the school year, and joint physical custody on an equal time-sharing basis has become a common solution in many parent-time relationships.

The custodial parent cannot deny parent-time because child support has not been paid. Our clients will often be told by their spouses that, because they didn't pay child support, they should not be awarded certain privileges. They seem to believe it all the time, and it's not true. The best way to get a court really angry at a parent is by showing that said parent has denied parent-time because of money.

A cheating spouse will not necessarily "lose" in divorce. An extramarital affair can have an effect on the divorce and custody proceedings; however, the affair will not certainly have an effect, and may be only one small factor of many.

An extramarital affair can be considered by the court in determining an award for alimony. The more egregious the case (if the extramarital affair led to a pregnancy, marital income or property was wasted on the paramour, or even if said affair caused extreme mental anguish and distress), the more likely the court will award alimony based on fault.

As for child custody, the court determines custody based on a variety of factors. The court uses those factors to determine what parent-time and custody arrangement will most likely meet the best interests of the minor child. While the extramarital affair itself will have minimal (if any) impact on the minor child, the consequences of the extramarital affair may have a significant impact on the court's decision to award parent-time of the minor child. For example, are the children aware of the extramarital affair (generally, this is an issue if the party engaging in the affair have disclosed it to the children)? Are the children comfortable or uncomfortable with the paramour? Is the parent engaging in the extramarital affair refusing to minimize exposure of the paramour to the minor child during his/her parent-time? Essentially, does the relationship harm the best interests of the minor child?

If you, or your spouse, engaged in an extramarital affair, the extra-marital may have an impact, and it may cause some problems, but the assumption should not be to "give up" in the divorce proceedings. It may impact the proceedings, but there is an excellent chance that it will not.

Your spouse does not know the law better than you do. We have potential clients call us with information that their estranged spouse or partner has provided. Sometimes, these spouses even claim that their information came from an attorney! Regardless of the spouse's advice, their statements should always be subject to verification. Call an attorney. Find out for yourself if what has been said is accurate. Even if it sounds accurate, you may have more rights than you realize.

Indeed, even if the information came from an attorney (and unless you heard it yourself, it probably didn't come from an attorney), and even if the attorney is reputable and honest, the information may not be accurate. Remember that your spouse provided a certain set of facts that probably colored him/her in a more favorable light. He/she may have left out certain negative facts, deeming them "not important" to the divorce or custody process. Under these conditions, the attorney may be honestly and legitimately providing advice that favors that spouse. When all of the information comes to light, the attorney's advice may change.

Remember that this works both ways. If you have spoken to an attorney, you may have painted a picture to the attorney to ensure the facts favor you. If you want an attorney to be blind-sided in court, this is a good approach. If you want an honest and semi-accurate analysis of your case, you should ensure the attorney knows the negative facts of your case as well. Remember that the more information you provide to more likely the attorney's analysis will both change and provide accuracy.

If your former spouse has told you that "Utah Law" claims "such and such," don't jump into believing it! Ask for verification. Ask why they think it is true. Call an attorney and verify.

A fraudulent DCFS Report will not help your case. Many parents seem to think that a DCFS investigation will help them "win" the custody dispute, regardless of whether the DCFS case has merit. This is not true, and filing a fraudulent DCFS report can, in fact, be detrimental to your case. DCFS my find that the investigation is merely a "custody dispute" (particularly if there is a current action pending), and the judge/commissioner over the case will be frustrated that the children's lives were disrupted because a parent was clearly trying to gain an edge in the court action.

If you believe that neglect or abuse may be occurring, do consult with an attorney and a DCFS case worker. Document what you are witnessing, and make sure any report coincides with current, recent abuse or neglect.

Conclusion

Before you act on what you believe you know and understand of "Utah Law," consult with a family law attorney. Many of our prospective clients come to us with misconceptions that can be quickly cleared up with only a few questions. While some of our prospective clients come to us years later (when it is often too late for us to fix previous misunderstandings of the law), we may still be able to help.

Give Atticus Legal Group, LLC a phone call at (801) 784-0529 for your free consultation.

Client Reviews
★★★★★
Mckail is an amazing young attorney that knows exactly what to do. More knowledgeable than some of her peers that have been practicing for over 20 years. Very detailed oriented in the entire process. Has no problem confronting other lawyers when it comes to fairness of her clients. Would recommend to anyone going through a divorce to call Atticus Legal Group before anyone else. Marc N.
★★★★★
Mckail Hamilton is professional, she has a great understanding of what the needs and wants of her clients are. She also is able to offer realistic expectations and she works hard to get things done in a timely manner. Mckail made this emotional process a lot more manageable for me. Thanks again. Amy M.