UTAH CHILD SUPPORT
Please select from below for applicable Utah statutes and explanations:
* This is by no means intended to be a
complete description of child support rights and duties
in the State of Utah. This page is intended to give a litigant
an idea of the support process. A complete description
of rights can be found in the Utah Code and the Utah Rules.
Do not rely on this page alone for guidance; consult with
an attorney. This page does not create an attorney-client
relationship.
Please contact Edward Stone for more information.
Utah
Divorce - Child Support
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Every mother and mother has a
duty to support his or her child. A court does not
have the power to permanently release a mother or
father from paying child support, except in cases
of adoption and the rare case of termination of parental
rights. The reason for this is that the right to
support is the child's, not the parent's.. A divorce
decree that includes a stipulation that husband will
be deprived of all parental rights in exchange for
no child support obligation will not be effective
unless there is a termination of parental rights
hearing, pursuant to Utah Code, Section 78-3a-406.
However, it is rare that a court will terminate a
parent's rights because of potential abuse of the
statute in avoidance of child support payments.
The trial court retains jurisdiction
to modify any agreement or decree with respect to
child support. A stepparent has a duty to support
a stepchild as does a natural
parent. However, that obligation terminates upon divorce and the natural parent
remains the primary obligor to provide support, and a stepparent may seek child
support from the natural or adoptive parents.
Utah Code, Section 78-45-7
78-45-7. Determination of amount
of support--Rebuttable guidelines
(1)(a) Prospective support shall be equal to the
amount granted by prior court order unless there
has been a substantial change of circumstance on
the part
of the obligor or obligee or adjustment under Subsection 78-45-7.2(6) has
been made.
(b) If the prior court order contains a stipulated provision for the automatic
adjustment for prospective support, the prospective support shall be the
amount as stated in the order, without a showing of a material change of
circumstances,
if the stipulated provision:
(i) is clear and unambiguous;
(ii) is self-executing;
(iii) provides for support which equals or exceeds the base child support
award required by the guidelines; and
(iv) does not allow a decrease in support as a result of the obligor's voluntary
reduction of income.
(2) If no prior court order exists, a substantial change in circumstances
has occurred, or a petition to modify an order under Subsection 78-45-7.2(6)
has
been filed, the court determining the amount of prospective support shall
require each party to file a proposed award of child support using the guidelines
before
an order awarding child support or modifying an existing award may be granted.
(3) If the court finds sufficient evidence to rebut the guidelines, the court
shall establish support after considering all relevant factors, including
but not limited to:
(a) the standard of living and situation of the parties;
(b) the relative wealth and income of the parties;
(c) the ability of the obligor to earn;
(d) the ability of the obligee to earn;
(e) the needs of the obligee, the obligor, and the child;
(f) the ages of the parties; and
(g) the responsibilities of the obligor and the obligee for the support of
others.
(4) When no prior court order exists, the court shall determine and assess
all arrearages based upon the Uniform Child Support Guidelines described
in this
chapter.
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Utah
Divorce - Medical and Dental Expenses of the Children
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When children are involved,
a divorce decree must assign responsibility for
payment of medical and dental expenses, and direct
one or both parties to maintain health insurance
on the children, if and when insurance is available
at a reasonable cost. A parent who incurs medical
expenses on behalf of a child should inform the
other parent of the procedure, cost, and provide
proof of payment within 30 days of payment. The
court may also issue an order of determination
of parental liability, where a parent is required
by order to pay uncovered medical expenses or provide
insurance and fails to do so.
Utah Code, Section
78-45-7.1
78-45-7.1. Medical expenses
of dependent children--Assigning responsibility
for
payment--Insurance coverage--Income
withholding
The court shall include
the following in its order:
(1) a provision assigning responsibility
for the payment of reasonable and necessary
medical expenses
for the dependent children;
(2) a provision requiring the
purchase and maintenance of appropriate insurance
for the medical expenses
of dependent children, if coverage
is
or becomes available at a reasonable cost;
(3) provisions for income withholding,
in accordance with Title 62A, Chapter
11, Parts 4 and 5;
and
(4) with regard to child support
orders issued or modified on or
after January
1, 1994,
that are subject
to income withholding, an order
assessing against the obligor an additional
$7 per month check
processing fee to be included in
the amount withheld and paid
to the Office of Recovery Services
within the Department of Human
Services for the
purposes
of income withholding
in accordance with Title 62A, Chapter
11, Parts 4 and 5.
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Utah
Divorce - Medical and Dental Insurance for the Children
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Utah Code, Section 30-3-5
30-3-5.
Disposition of property--Maintenance and health
care of parties and children--Division
of debts--Court to have continuing jurisdiction--Custody
and visitation--Determination of alimony--Nonmeritorious
petition for modification.
(1) When a decree of divorce
is rendered, the court may include in it equitable
orders relating to the
children, property, debts or obligations, and
parties. The court shall include the following
in every
decree of divorce:
(a) an order assigning responsibility
for the payment of reasonable and necessary
medical and
dental
expenses of the dependent children;
(b) if coverage is or becomes
available at a reasonable cost, an order requiring
the purchase and maintenance
of appropriate health, hospital, and
dental care insurance for the dependent children;
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Utah
Divorce - Modification of Orders
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The District Court maintains
continuing jurisdiction over the subject matter
in a divorce, and may make modifications in child
custody in the best interests of the child upon
a showing of a material or substantial change in
circumstances. The Utah Supreme Court has developed
a two part test for custody modifications: (1)
demonstrate a material and substantial change in
circumstances upon which the original order was
based; (2) once the change has been proven satisfactorily,
the change in custody must be in the best interests
of the child.
Utah Code,
Section 30-3-10.4
30-3-10.4. Modification or termination of order.
(1)
On the motion of one or both of the joint legal
custodians the court may, after a hearing,
modify an order that established joint legal
custody if:
(a) the circumstances of
the child or one or both custodians have materially
and substantially changed since the entry of the order to be modified,
or the order has become unworkable or inappropriate
under existing circumstances;
and
(b) a modification of the
terms and conditions of the decree would be
an
improvement for and in the best interest of the child.
(2) The order of joint legal
custody shall be terminated by order of the
court if both parents file a motion for termination.
At the
time of entry
of an order
terminating joint legal custody, the court shall enter an order
of sole legal custody under Section 30-3-10.
All related issues, including
parent-time
and
child support, shall also be determined and ordered by the court.
(3) If the court finds that
an action under this section is filed or answered
frivolously and in a manner designed to harass
the
other party, the court
shall assess attorney's fees as costs against the offending party.
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Utah
Divorce - Child Care Expenses
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The child support order should require the parents
to equally split the costs of reasonable work-related
day child care expenses. The need to include day
care costs are presumed if the custodial parent
is working and incurs work related child care expenses.
If an actual expense for child care is incurred,
a parent must pay their share upon proof of expense.
If the expense ceases to be incurred,, that parent
may suspend payment of the day care expense while
it is not being incurred, without obtaining a modification
of the child support order.
Utah Code, Section 30-3-5
30-3-5. Disposition of property--Maintenance and
health care of parties and children--Division of
debts--Court to have continuing jurisdiction--Custody
and visitation--Determination of alimony--Nonmeritorious
petition for modification.
(1) When a decree of divorce
is rendered, the court may include in it equitable
orders relating to
the children, property, debts or obligations,
and parties. The court shall include the following
in every decree of divorce:
(a) an order assigning
responsibility for the payment
of reasonable and necessary medical and
dental expenses of the dependent children;
(b) if coverage is or becomes available
at a reasonable cost, an order requiring
the purchase and maintenance
of appropriate health, hospital,
and dental care insurance for the dependent
children;
(c) pursuant to Section 15-4-6.5:
(i) an order specifying
which party is responsible for the payment
of
joint debts, obligations, or
liabilities of the parties
contracted or incurred during marriage;
(ii) an order requiring the parties
to notify respective creditors
or obligees,
regarding the court's division
of debts, obligations,
or liabilities and regarding the parties'
separate, current
addresses; and
(iii) provisions for the
enforcement of these
orders; and
(d) provisions for income
withholding in accordance
with Title 62A,
Chapter 11,
Recovery Services.
(2) The court may include,
in an order determining
child support,
an order assigning
financial responsibility
for all or a portion
of child care
expenses incurred
on behalf of the dependent
children,
necessitated
by the employment
or training of the custodial
parent.
If the
court
determines that the
circumstances are
appropriate and that the dependent
children would be
adequately cared for,
it may include an
order allowing the
noncustodial parent
to provide
child care for the
dependent children,
necessitated by the
employment
or training of the
custodial parent.
(3)
The court has continuing
jurisdiction
to make
subsequent changes
or new
orders for the
custody of the children and
their support,
maintenance, health, and dental
care, and for distribution
of the property
and obligations
for debts as is
reasonable and necessary.
[Section omitted]
(5) If a petition
for modification
of child
custody or
visitation provisions of
a court order is
made
and denied,
the court shall
order the petitioner
to pay the
reasonable attorneys' fees
expended by
the prevailing
party in that
action, if
the court determines
that the
petition was
without merit and not asserted
or defended
against in
good faith.
(6) If a petition
alleges substantial
noncompliance
with a visitation
order by
a parent, a grandparent,
or other
member of the
immediate
family
pursuant
to Section
78-32-12.2
where a
visitation
right has
been previously
granted by
the court,
the court
may award
to the prevailing
party
costs, including
actual attorney
fees and
court costs incurred
by the prevailing
party
because of
the other
party's failure to
provide
or exercise
court-ordered
visitation.
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Overtime and second job income
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78-45-7.5. Determination of gross income -- Imputed income
(1) As used in the guidelines, "gross income" includes:
(a) prospective income from any source, including nonearned sources, except under Subsection (3);
(b) income from salaries, wages, commissions, 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.
(2) Income from earned income sources is limited to the equivalent of one full-time 40-hour job. However, if and only if during the time prior to the original support order, the parent normally and consistently worked more than 40 hours at his job, the court may consider this extra time as a pattern in calculating the parent's ability to provide child support.
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Utah
Divorce - Determination of Income
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78-45-7.5. Determination of gross income -- Imputed income
(1) As used in the guidelines, "gross income" includes:
(a) Prospective income from any source, including nonearned sources, except under Subsection (3);
(b) income from salaries, wages, commissions, 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.
(2) Income from earned income sources is limited to the equivalent of one full-time 40-hour job. However, if and only if during the time prior to the original support order, the parent normally and consistently worked more than 40 hours at his job, the court may consider this extra time as a pattern in calculating the parent's ability to provide child support.
(3)
Specifically excluded from gross income are:
(a) Cash assistance provided under Title 35A, Chapter 3, Part 3, Family Employment Program;
(b) Benefits received under a housing subsidy program, the Job Training Partnership Act, Supplemental Security Income, Social Security Disability Insurance, Medicaid, Food Stamps, or General Assistance; and
(c) Other similar means-tested welfare benefits received by a parent
(4) (a) Gross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. The income and expenses from self-employment or operation of a business shall be reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support award. Only those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.
(b) Gross income determined under this subsection may differ from the amount of business income determined for tax purposes.
(5) (a) When possible, gross income should first be computed on an annual basis and then recalculated to determine the average gross monthly income.
(b) Each parent shall provide verification of current income. Each parent shall provide year-to-date pay stubs or employer statements and complete copies of tax returns from at least the most recent year unless the court finds the verification is not reasonably available. Verification of income from records maintained by the Department of Workforce Services may be substituted for pay stubs, employer statements, and income tax returns.
(c) Historical and current earnings shall be used to determine whether an underemployment or overemployment situation exists.
(6) Gross income includes income imputed to the parent under Subsection (7).
(7) (a) Income may not be imputed to a parent unless the parent stipulates to the amount imputed, the party defaults, or, in contested cases, a hearing is held and a finding made that the parent is voluntarily unemployed or underemployed.
(b) If income is imputed to a parent, the income shall be based upon employment potential and probable earnings as derived from work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics
maintained by the Bureau of Labor Statistics.
(c) If a parent has no recent work history or their occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week. To impute a greater income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.
(d) Income may not be imputed if any of the following conditions exist:
(i) the reasonable costs of child care for the parents' minor children approach or equal the amount of income the custodial parent can earn;
(ii) a parent is physically or mentally disabled to the extent he cannot earn minimum wage;
(iii) a parent is engaged in career or occupational training to establish basic job skills; or
(iv) unusual emotional or physical needs of a child require the custodial parent's presence in the home.
(8) (a) Gross income may not include the earnings of a minor child who is the subject of a child support award nor benefits to a minor child in the child's own right such as Supplemental Security Income.
(b) Social Security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent. Other unearned income of a child may be considered as income to a parent depending upon the circumstances of each case.
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Utah
Divorce - Support follows the child
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78-45-4.4. Support follows the child.
(1) Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child.
(2) Except in cases of joint physical custody and split custody as defined in Section 78-45-2, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with Sections 78-45-7.7 and 78-45-7.15, without the need to modify the order for:
(a) the parent who has physical custody of the child;
(b) a relative to whom physical custody of the child has been voluntarily given; or
(c) the state when the child is residing outside of the home in the protective custody, temporary custody, or custody or care of the state or a state-licensed facility for at least 30 days.
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Utah
Divorce - Waiver of Child Support
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78-45-4.5. Waiver and estoppel.
(1) Waiver and estoppel shall apply only to the custodial parent when there is no order already established by a tribunal if the custodial parent freely and voluntarily waives support specifically and in writing.
(2) Waiver and estoppel may not be applied against any third party or public entity that may provide support for the child.
(3) A noncustodial parent, or alleged biological father in a paternity action, may not rely on statements made by the custodial parent of the child concerning child support unless the statements are reduced to writing and signed by both parties.
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Utah
Divorce - Previously ordered child support and alimony
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78-45-7.6. Adjusted gross income.
(1) Waiver and estoppel shall apply only to the custodial parent when there is no order already established by a tribunal if the custodial parent freely and voluntarily waives support specifically and in writing.
(2) Waiver and estoppel may not be applied against any third party or public entity that may provide support for the child.
(3) A noncustodial parent, or alleged biological father in a paternity action, may not rely on statements made by the custodial parent of the child concerning child support unless the statements are reduced to writing and signed by both parties.
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Utah
Divorce - Termination of child support
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78-45-7.10. Adjustment when child becomes emancipated.
(1) When a child becomes 18 years of age, or has graduated from high school during the child's normal and expected year of graduation, whichever occurs later, the base child support award is automatically adjusted to reflect the base combined child support obligation shown in the table for the remaining number of children due child support, unless otherwise provided in the child support order.
(2) The award may not be reduced by a per child amount derived from the base child support award originally ordered.
(3) The income used for purposes of adjusting the support shall be the income of the parties at the time of the entry of the original order. If income was not listed in the findings or order and worksheets were not submitted, the parties may submit tax returns or other verification of the income.
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Utah
Divorce - Reduction for extended parent time
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In addition to those factors listed in Section 30-3-10 of the Utah Code, the corut should also consider within the context of the child's best interest:
- keeping the siblings together;
- the relative strength of the child's bond with one or both of the prospective custodians;
- in appropriate cases, the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted.
With respects to the parents, the court should consider:
- moral character and emotional stability;
- duration and depth of desire for custody;
- ability to provide personal rather than surrogate care;
- significant impairment of ability to function as a parent through drug abuse, excessive drinking, or other cause;
- reasons for having relinquished custody in the past;
- religious compatibility with the child;
- kinship, including (in extraordinary cases) stepparent status; and
- financial condition.
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