Marital Separation Agreement

Note: This summary is not intended to be an all inclusive discussion of the law of separation agreements in Utah, but does include basic and other provisions.

General Summary:

Postmarital Agreements are enforced in Utah as contracts. The parties have a duty to avoid fraud, coersion and material nondisclosure. Although Postmarital agreements may be entered into to be effective immediately, the Court retains jurisdiction with regard to the care and custody of minor children and alimony.

Statutes:

Utah Code

Title 30 Husband and Wife

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.

(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.

(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.

(8)(g)(i) The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.

(9) Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and his rights are determined. Section 30-3-5.

Custody of children in case of separation or divorce -- Custody consideration:

(1) If a husband and wife having minor children are separated, or their marriage is declared void or dissolved, the court shall make an order for the future care and custody of the minor children as it considers appropriate. In determining custody, the court shall consider the best interests of the child and the past conduct and demonstrated moral standards of each of the parties. Section 30-3-10.

Case Law:

Postmarital agreements, like premarital ones, are generally subject to ordinary contract principles. D'Aston v. D'Aston, 808 P.2d 111, 112-13 (Utah Ct.App. 1990).

In Utah, prenuptial and postmarital agreements are enforceable as long as there is no fraud, coercion or material nondisclosure. Huck v. Huck, 734 P.2d 417, 419 (Utah 1986); D'Aston v. D'Aston, 808 P.2d 111 (Utah App. 1990)