At the onset of a married couple’s separation in Utah, the parties might feel like there are more questions than answers when it comes to the temporary status of the parties’ funds, assets, and properties, prior to a final decree of divorce being signed by a judge. Those questions often include: Am I allowed to withdraw funds or otherwise make payments from our joint financial account, without my spouse’s consent? What if my spouse withdraws all the funds, leaving me penniless? Who should pay the bills?
The simplest answer to these questions, which can certainly feel overwhelming, is to speak with a lawyer. A Utah attorney who is experienced in the nuances of family law will be able to guide you through the various stages of separation or divorce, and to answer the questions that you have about your specific situation. A good attorney can help guide you through this stressful and confusing time, and to focus on how to obtain the best possible big-picture outcomes.
Although each specific situation and set of facts will greatly affect the answers to these questions about the parties’ financial assets, there are some general options and factors to consider:
- First, regarding the period prior to filing a Petition for Divorce, typically the parties can move funds during this time without being in violation of the law. At the end of the case, however, if such funds are determined to be marital funds, they will be included and dealt with in the final calculation of marital property to be divided between the parties equitably.
- Second, regarding the period of time immediately after a party files a Petition for Divorce, since January 1, 2020, Utah law has provided that an automatic order called a “Domestic Relations Injunction” will be immediately signed by the judge. The party who filed the Petition for Divorce will be subject to the Injunction upon filing. However, the other party is not subject to the Injunction until he or she is served. U.R.Civ.P. Rule 109.
- This Injunction orders that the parties not “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.” Rule 109(b)(1).
- This means that the parties are generally prohibited from transferring funds out of their joint accounts at this time. It is best to speak with an attorney regarding the exceptions, which typically look like payments for monthly bills that had already commenced prior to the Petition being filed.
- That being said, the parties are permitted, and even encouraged, to make formal or informal, written agreements regarding their respective uses of joint funds during this time.
- Third, judges will often (but not always) enter “temporary orders” regarding the parties’ funds, assets, and/or properties (and potentially several other matters, such as custody and child support if there are minor children), which direct the parties as to what they can and cannot do, prior to the final decree of divorce being entered. A Temporary Order can modify potentially conflicting terms of the Injunction. Either party may request a temporary order by filing a motion.
- Parties have the option to file a motion to modify or dissolve the Injunction. Rule 109(f).
To receive help, guidance, and/or advocacy in addressing your particular separation or divorce questions, call Daniel W. McKay & Associates to speak with a competent, experienced, Utah Attorney.