Divorce is hard enough on its own. Add in legal paperwork packed with unfamiliar terms, and it can feel like you’re suddenly expected to speak a completely new language. For many people, divorce jargon is intimidating, overwhelming, and anxiety-inducing. When you don’t fully understand the words being used in your case, it’s easy to feel powerless or unsure about what’s really happening.
The purpose of this blog is simple: to define and explain a few common but confusing divorce-related legal terms as they are used in Utah divorce actions, and in plain language. By understanding the terms used in your case, you are more informed, more confident, and more in control of the process. Knowledge truly is power, especially during a divorce.
Alimony (Spousal Support)
Alimony, sometimes called spousal support, is a court-ordered payment that one spouse makes to the other. It can be paid while the divorce is ongoing or for a specific period after the divorce is finalized.
Think of alimony as financial support designed to help one spouse adjust after the marriage ends. In many marriages, one spouse may earn significantly more than the other or may have stayed home to care for children. Alimony helps the receiving spouse transition from financial dependence during the marriage to becoming financially self-sufficient after the divorce.
Key Fact: Courts do not award alimony automatically. Judges consider several factors, including the length of the marriage, the standard of living established during the marriage, and each spouse’s ability to earn income and pay support.
Custodial Parent
In Utah, “child custody” isn’t a single concept, it is a bundle of rights split into two distinct categories. When parents in Utah talk about “getting custody,” they are often conflating which parent the child stays with who makes decisions for the child. Under Utah law, these are handled separately.
Physical vs. Legal Custody in Utah
In a Utah divorce decree, the court must address the two specific types of custody. It is common for a parent to have “joint” status in one category but not the other.
Physical Custody (Where the child lives)
Physical custody refers to where the child actually resides and which parent provides the day-to-day care.
- Sole Physical Custody. Don’t let the term fool you. “Sole custody” doesn’t mean that the child never spends any time with one of his/her parents. The child lives with one parent (the custodial parent) for the vast majority of the time annually. The other parent (the non-custodial parent) typically receives “parent-time” (the Utah legal term for visitation) according to the statutory schedules. If a parent has his/her child in his/her custody for less than 111 overnights annually, that parent is a “non-custodial parent” and the other parent is the “custodial parent”.
- Joint Physical Custody: In Utah, this is defined as the child staying with each parent for at least 111 overnights per year. This does not necessarily mean a 50/50 split, but it must meet that 111-night threshold to be legally considered “joint.”
Legal Custody (Who makes decisions)
Legal custody involves the right to make “major life decisions” for the child. This includes choices regarding education (which school they attend), healthcare (non-emergency surgeries or therapy), and religious upbringing.
- Joint Legal Custody: This is the rebuttable presumption in Utah. The court assumes it is in the child’s best interest for both parents to share this right. If you have joint legal custody, one parent cannot unilaterally change the child’s school or surgeon without consulting the other.
- Sole Legal Custody: One parent has the final and exclusive right to make these major decisions without the other parent’s consent.
Key Fact: The parent with whom the child spends the majority of the time is labeled the custodial parent. This designation is more than just a title; it is a primary factor in calculating child support and determining which parent’s school district the child will attend. Even if you share “joint legal custody,” the “physical custodial parent” status can affect everything from tax filings to relocation rights.
Guardian ad Litem
(Guardian ad Litem (GAL) or Private Guardian ad Litem)
A Guardian ad Litem, often referred to as a GAL, is, in concept and principle, neutral person—frequently an attorney—appointed by the court to investigate a child’s situation and make recommendations to the judge about what is in the child’s best interests.
In Utah, not all GALs are the same. Depending on whether your case involves allegations of abuse or is simply a high-conflict custody battle, you will encounter one of two very different types of GALs.
The Two Types of Guardians ad Litem in Utah
While both roles focus on the “best interests of the child,” their funding, appointment criteria, and investigative focus differ significantly.
Guardian ad Litem (State-Employed)
The Office of Guardian ad Litem employs full-time attorneys who work for the State of Utah.
- When they are appointed: In District Court (where divorces happen), a state GAL is typically only appointed if there are specific, formal allegations of abuse or neglect and the parties are found to be indigent (unable to pay).
- Cost: These GALs are funded by the state. While the court can assess some costs to the parents, they are generally provided at little to no cost to the parties involved.
- Focus: Their primary mandate is safety and protection from harm.
The Private Guardian ad Litem (PGAL)
In a typical high-conflict Utah divorce where there are no substantiated abuse claims, the court will appoint a Private Attorney Guardian ad Litem (PGAL).
- When they are appointed: In high-conflict custody or parent-time disputes in divorce where the court feels an independent investigation is necessary to help resolve the issues of child custody and welfare.
- Cost: You pay for this. PGALs are private-practice attorneys. The court will order the parents to split the costs (often 50/50), which includes an initial retainer and an hourly rate.
- Focus: Their investigation is broader, looking at parenting styles, school stability, and the overall “best interest” factors used to build a permanent custody plan.
The Candid Reality: “Best Interests” vs. “Child’s Wishes”
Regardless of whether they are State or Private, Utah law (Utah Code § 78A-2-705) requires the GAL to represent the child’s best interests, not necessarily what the child says they want.
Important Note: If the child’s wishes differ from the GAL’s recommendation, the GAL is legally required to tell the judge what the child wants, but they will then explain why they think the child is wrong. This can be devastating for a parent who believes the child’s preference should control or at least be given more weight.
While a GAL or PGAL is technically “neutral,” it is more accurate to view them as a third-party investigator with immense influence. They have the authority to interview the child, parents, teachers, and therapists, and to review medical or school records. However, their role comes with significant weight and a few hard truths:
- Best Interests vs. Child’s Wishes: The GAL does not represent the child like a typical lawyer. They represent the child’s best interests. If a child wants to live with Mom, but the GAL decides Dad’s house is more stable, the GAL will argue against the child’s stated wishes.
- Judges often default to the P/GAL’s report because the GAL has spent time in the home while the judge only sees the parents in a courtroom. While they aren’t the judge, P/GALs’ recommendations carry massive weight.
The Reality Check: Because their recommendations are so influential, a P/GAL can essentially “make or break” a custody case. They are human, subject to their own biases, and can be difficult to challenge once their report is filed.
Key Fact: While a GAL’s recommendation is not a legal order, it is rare for a judge to deviate significantly from it. For all practical purposes, winning over the GAL is often just as important as winning over the judge.
Moving from Confusion to Confidence
Alimony, custodial parent, and guardians ad litem are just a few of the many terms that can make the divorce process feel overwhelming. However, understanding these concepts can help replace confusion with confidence. Each term you learn puts you in a stronger position to understand your case and communicate more effectively with your attorney and your attorney’s support staff.
Utah Family Law, LC | divorceutah.com | 801-466-9277