Do Any Restraining Orders Govern Use Of Funds Or Property After A Divorce Has Been Filed In Utah?

In Utah, a restraining order governs the use of funds or property after a divorce has been filed. Beginning January 1st, 2020, a new automatic restraining order known as Utah Rule of Civil Procedure 109 is automatically in effect as soon as a divorce petition is filed. That rule provides:

“(a) Actions in which a domestic injunction enters. Unless the court orders otherwise, in an action for divorce, annulment, temporary separation, custody, parent time, support, or paternity, the court will enter an injunction when the initial petition is filed. Only the injunction’s applicable provisions will govern the parties to the action.

(b) General provisions.

(1) If the action concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life.

(2) Neither party may, through electronic or other means, disturb the peace of, harass, or intimidate the other party.

(3) Neither party may commit domestic violence or abuse against the other party or a child.

(4) Neither party may use the other party’s name, likeness, image, or identification to obtain credit, open an account for service, or obtain a service.

(5) Neither party may cancel or interfere with telephone, utility, or other services used by the other party.

(6) Neither party may cancel, modify, terminate, change the beneficiary, or allow to lapse for voluntary nonpayment of premiums, any policy of health insurance, homeowner’s or renter’s insurance, automobile insurance, or life insurance without the written consent of the other party or pursuant to further order of the court.

(c) Provisions regarding a minor child. The following provisions apply when a minor child is a subject of the petition.

(1) Neither party may engage in non-routine travel with the child without the written consent of the other party or an order of the court unless the following information has been provided to the other party:

(A) an itinerary of travel dates and destinations;

(B) how to contact the child or traveling party; and

(C) the name and telephone number of an available third person who will know the child’s location.

(2) Neither party may do the following in the presence or hearing of the child:

(A) demean or disparage the other party;

(B) attempt to influence a child’s preference regarding custody or parent time; or

(C) say or do anything that would tend to diminish the love and affection of the child for the other party, or involve the child in the issues of the petition.

(3) Neither party may make parent time arrangements through the child.

(4) When the child is under the party’s care, the party has a duty to use best efforts to prevent third parties from doing what the parties are prohibited from doing under this order or the party must remove the child from those third parties.

(d) When the injunction is binding. The injunction is binding

(1) on the petitioner upon filing the initial petition; and

(2) on the respondent after filing of the initial petition and upon receipt of a copy of the injunction as entered by the court.

(e) When the injunction terminates. The injunction remains in effect until the final decree is entered, the petition is dismissed, the parties otherwise agree in a writing signed by all parties, or further order of the court.

(f) Modifying or dissolving the injunction. A party may move to modify or dissolve the injunction.

(1) Prior to a responsive pleading being filed, the court shall determine a motion to modify or dissolve the injunction as expeditiously as possible. The moving party must serve the nonmoving party at least 48 hours before a hearing.

(2) After a responsive pleading is filed, a motion to modify or to dissolve the injunction is governed by Rule 7 or Rule 101, as applicable.

(g) Separate conflicting order. Any separate order governing the parties or their minor children will control over conflicting provisions of this injunction.

(h) Applicability. This rule applies to all parties other than the Office of Recovery Services.”

What Constitutes Commingling Of Funds In Utah?

Common ways to commingle include putting funds into the same bank account, and using that account together to make deposits and withdrawals such that the funds lose their separate character. Separate or premarital funds may become marital if they are commingled with the other party’s funds.

How Do I Stop Commingling Assets If I Plan To File For A Divorce?

Separate your accounts and ensure that any deposits for inheritances, premarital funds, or other separate funds are deposited only into your account. For instance, if the asset is real estate, and has not already been commingled, do not extract the equity and then deposit the equity to a joint account. Do not let the other party be named on the title to the asset or pay the mortgage from marital funds, etc.

Is My Spouse Entitled To Half Of My Savings?

Any non “separate property” savings, such as from an inheritance, that accrued during the course of a marriage is considered “marital,” and each party will be entitled to an equitable portion of that savings. However, that does not always mean half. A trial court may give allthe savings to one party while giving the other party the entirety of another asset. But, when the judge totals up the entire marital estate, the court will usually try to make the division roughly equal.

Can I And Should I Open A Bank Account During A Divorce? Can My Spouse Take Me Off Our Joint Account?

Depending on the facts of the case, it may be a good idea to get your name off of any joint accounts as soon possible so that the other side cannot withdraw funds or charge those accounts. One exception might be is if the money is brought into the account by the other party and you need to use those funds. Otherwise, it’s often a good idea to separate accounts quickly unless a) the other party is the income producing party and you need access to those funds; or, b) creating separate accounts would telegraph the other party that a petition is shortly going to be filed, and you do not wish the other side to know quite yet.

Also, so long as the Rule 109 “domestic relations injunction” is not in effect, it’s often a good idea to close any such accounts only after downloading or getting from the bank as many bank statements reaching as far back as the bank will allow. For joint bank accounts, speak with your attorney to determine how much to withdraw, if any, before closing your account or taking your name off of it. Generally, it is considered fair to take at least half of any funds or savings from joint accounts just before or at the time of separation. Although it is considered allowable, and is not prohibited to take all of the funds from the account at the time of separation, it is often considered bad form not leave a sufficient portion for the other side to help meet their expenses. That said, there are exceptions. If one party earns a large amount, and the other party is destitute, taking a larger portion of funds should still be considered.

It’s prudent to have your own bank account prior to separation, and perhaps prior to your spouse knowing that separation or divorce is being contemplated. It gives you a place to transfer funds into, and allows for privacy you didn’t previously enjoy. If attorney’s fees or court costs are paid from the joint account, your spouse will obviously know.

Normally, if one spouse is the owner of the account while the other party is only a signer, the owner of the account may remove the signer from the joint bank account. However, if both parties are owners of the account, neither party may remove the other.

Can Or Should I Prevent My Spouse From Incurring Further Debt On Any Joint Accounts?

Subject to Rule 109 set forth above, each party will need to consider whether to attempt to freeze any credit or use credit of joint accounts. If the goal is to prevent further debt from being incurred, you will want to call and try to freeze the account or close it if it is paid off.Or, if they will allow, get your name off of the account so that no further charges may be made up on it. You should speak to your attorney if you think there should be an exception. Rule 109 and the restrictions of that rule should always be considered.

Do You Have To Show Your Bank Statements In A Divorce?

Utah Rule of Civil Procedure 26.1 requires that each party set out a financial declaration and attach three-months’ worth of paystubs, bank statements, recent tax returns, and other financial information. Also, during the course of formal discovery, either side may request additional documentation, if done properly. Please see other articles regarding discovery on this website.

Who Will Pay The Household Bills During The Divorce?

If the parties can reach an agreement on who will pay the household bills during the divorce, then the agreed upon party will do so. If they are unable to reach an agreement, each party can file a motion for temporary orders asking the court to determine who will pay the household bills during the divorce. Please see articles on temporary orders on this website.

DoesThe Debtor Know I Will No Longer Be Responsible For That Debt?

Any debt incurred during the course of the marriage will be considered marital debt with a very few exceptions. The creditor will not come after any party for which they have no contract. Thus, even though the court may divide debt owed by only one party, such that both parties have to pay it, the obligation to pay any such debt is only enforceable by a court order in the divorce case. In other words, the bank cannot sue a wife for failure to pay her husband’s credit card debt even if the judge ordered her to pay it. However, the husband may file an order to show cause to have the wife held in contempt if the judge has previously ordered her to pay his debt as part of the marital division of debt and she fails to do so. Conversely, the creditor may force the husband to pay that debt if the husband has a contract with that creditor. Consequently, that husband’s only option would be to seek, redress, and sanction against the wife for failure to pay the debt.

Can I Dispose of My 401K Before A Divorce?

Until a divorce petition has been filed, you’re entitled to dispose of your property in any legal way. That said, if one party attempts to impoverish the other side by removing all assets just prior to filing a divorce petition, the court may take corrective action by ordering the return of funds or through temporary orders if the court believes that pre-filing actions were underhanded.

I’m Moving Out During The Divorce And Giving Up My Property. Can My Spouse Remove My Name From The Deed And Mortgage Without My Consent?

Moving out may cause a strategic advantage for one side or the other as to who will be awarded the property on a temporary or permanent basis. However, that does not give up the property. One may still argue in temporary orders hearings, during settlement negotiations, and at trial that the property should be returned to them. Typically, one spouse cannot remove the other spouse’s name from a deed or mortgage without their consent or a court order. Generally, division of real property occurs by way of a quitclaim deed once the home has been refinanced or sold following entry of the decree.

For more information on Comingling Assets, Funds And Bills, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.

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