Friday, 20 July 2018

Basics of Child Custody

Basics of Child Custody

Few divorce decisions are as emotionally fraught as those involving custody of minor children. Divorcing spouses who agree on other issues can quickly reach an impasse where children are involved.

Too often, protracted custody battles are thinly disguised attempts to manipulate support obligations , deny equal parental rights, or alienate a child from a non-custodial parent.

While you and your spouse can make custody agreements and visitation arrangements on your own, litigated custody disputes turn those decisions over to a judge who does not know your family. As one of the best family law firm in Utah, our practice daily handles tough custody cases for clients from all walks of life. These parents retain us to fight for the best interests of their children—and for their future. You should make sure you get a child custody lawyer to help you whenever you have an issue like this come up.

Two questions to be addressed concern legal and physical custody, defined as follows:

  • Legal custody is the right to make or be involved in major decisions concerning your child on matters of health, education, and welfare
  • Physical custody is the right for a child to reside with you and receive your physical care

Along with recommendations from the law guardian for your child, a judge will review best interest factors to make a physical custody decision that may look like one of the following:

  • Sole custody with one custodial parent, and one parent receiving visitation rights
  • Joint physical custody where a child resides with both parents—not necessarily for equal periods of time

Childhood is brief, but its scars can last a lifetime. If you have custody issues, retain a skilled attorney and fight for your child while you can still make a difference.

How Does Remarriage Affect Older Children?

Many people expect there to be some growing pains when getting remarried with minor children in the picture. However, many of these same transitional and emotional issues can also be a factor if you or your spouse have any older children.

While older children are going to be better able to emotionally process the transition, they are still human and still could very well have complicated feelings about the marriage. You should be prepared to notice and address any of the following issues:

  • Strong loyalty to their “original” family: Your adult children will want to maintain a strong family identity. This means it can be difficult to immediately accept a new stepparent and everything that comes with it, including uprooting long-established family traditions, celebrations and holidays.
  • Feelings of homesickness: While your adult children no longer live at home with you, there is still something that might be lost to them in the transition, beyond your relationship. To them, going home might no longer feel like they’re actually at home, and that can be difficult to process at first. They will miss the feelings of the home they knew as children, with both of their parents living in it together.
  • Difficulty managing time with grandchildren: You might find that your children harbor some feelings of resentment that their children, your grandchildren, will suddenly have to welcome a new face into their life, or that time has to be split even more broadly among grandparents.
  • Jealousy: Even adult children are susceptible to feeling jealous, or as though they’ve been “replaced” by a new spouse. Suddenly a new stepparent comes in and has captured your heart and energy — it’s natural for them to feel jealous.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Thursday, 19 July 2018

Joint Wills

As a probate lawyer, I often get asked questions about wills and trusts. Usually, you and your spouse will want to make a will together to leave the entire estate to each other and eventually to your children. While it is not the only way, a joint will allows one spouse to inherit the entire estate upon the death of the other spouse. However, you will need to carefully balance many factors to determine if creating a joint will is the best option for you. Read on to learn about joint wills, their legal effects, and potential problems and issues.

Joint Wills

What Are Joint Wills?

A joint will is a type of will that is jointly executed by two or more persons, usually a married couple, which combines the parties’ last will and testament. Under a joint will, the surviving party inherits the entire estate when the other party passes away. Between a married couple, the entire estate will usually go to the spouses’ children upon the death of the second spouse. Keep in mind that joint wills are different than joint and mutual wills, which contain reciprocal provisions that make the property distributions dependent on the other.

Legal Effects of Joint Wills

A joint will is a legal contract that cannot be changed or revoked by one party alone. The parties may revoke the will during their lifetime through mutual consent. However, once one of the parties passes away, the joint will cannot be revoked. Even if the surviving spouse remarries after the death of the other spouse, the terms of the joint will remain unchanged and the surviving spouse must comply with them. At Ascent Law, we really believe that having a will or joint wills if you are married is a vital part of estate planning and it should not be ignored or put off for another day.

Problems of Joint Wills

Joint wills are rarely used today because of potential problems and lack of advantages. Back in the day, joint wills were preferred over other types of wills because they saved time and additional labor. However, now that wills can be easily created on a computer, there’s no clear advantage to joint wills in most cases.

One of the biggest potential problems is that the surviving spouse is unable to change the terms of the will, regardless of the changed circumstances after the death of his or her spouse. For example, when the surviving spouse remarries another person and wants to leave some of the assets to his or her stepchild, the joint will prevents the surviving spouse to leave any part of the estate to that stepchild.

Another problem may arise if the surviving spouse wants to disinherit the child. Even if the spouses’ child abandons the family and stays disconnected with the surviving spouse, the surviving spouse still cannot disinherit the child without an approval of the deceased spouse.

Moreover, the surviving spouse may be tied up with the terms of the joint will for a long time. Say that the spouses got married when they were young and one of the spouses dies soon after their marriage. Now, the surviving spouse can be tied up with the terms of their joint will for decades.

Good Alternative to a Joint Will

A joint will isn’t the only way to transfer the estate to another person. If a married couple wants to make sure their children inherit everything after their deaths, the couple can set up a trust that contains the provisions of their wishes and restrictions. By setting up a trust, you are able to control who will manage the property for the benefit of your children, modify any terms of the trust, or entirely revoke the trust during your lifetime.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Does a 14 Year-Old Child’s Opinion Matter in a Custody Battle?

The Supreme Court, District Courts as well as the Family Courts in the State of Utah give some deference and weight to the opinion of children.  This is an important part of child custody in Utah. This doesn’t guarantee that a 14 year old will get what he or she wants. As the children age, their opinion is given more weight. Most often any child over the age of 5 is given an attorney by the Court (Attorney for the Child “AFC”). That person will be telling the Judge and anyone who will listen the wishes of the child. If the child is over the age of 14, those wishes will most likely carry great weight in any custody battle.

The result is as follows: children are driving the bus. Children playing one parent against another. Children are empowered to make decisions that, most likely should have been left to adults. Nevertheless, two adults cannot make a decision as to which of them is a better parent or custodial parent, the child will most likely make that decision for them If the child is over the age of 14. Our firm handles almost 1,000 cases a year and only handles divorce and Family Law cases. We know how to support the child’s wishes and we have also successfully won cases by challenging both the child’s preference and the arguments of the AFC or Forensic.

When Pet Custody is an Issue

Many couples and families own beloved pets. The ties that bind humans to animals sometimes outlast those of human relationships. When that happens, sparks fly when one spouse decides Fido is leaving with him or her.

In a recent survey, the American Association of Matrimonial Lawyers (AAML), reported more than a quarter of its members noted an uptick in divorce actions involving pets. The survey revealed trends that include:

  • Top dogs: With 88 percent of disputes devoted to canine companions, dogs take the top spot in disputed pets, followed by cats, horses and, in one case, a 130-pound turtle.
  • Under consideration: Approximately 22 percent of respondents reported courts are increasingly allowing pet custody cases.
  • Heart to heart: Using pet ownership as a legal strategy during divorce heightens conflict and can extend the acrimony and expense of divorce.

Thoughts to consider when the ownership of your pet is pending during divorce include:

  • Is the animal a family pet?  Where can the children best enjoy the animal?
  • Can you share ownership of the animal?  If you share ownership, how are animal expenses to be paid?  Make decisions at the outset about significant medical expenses the animal may incur.
  • What type of ownership is really best for the animal?

In Utah, animal companions are considered property of the marital estate. While a decision in the best interests of the animal makes sense, it is not the legal standard at play when pet ownership is disputed.

Mother Fails to Provide Evidence of Enhancement in Relocation Case

A recent bid before the Appellate Division, Second District failed when a mother was unable to provide important information to support her desired relocation after a divorce.

In Christy v. Christy, appellant Lisa Christy sought relief from a family court decision that prohibited her from carrying out a proposed relocation with the children of her previous marriage.

In Utah, the court maintains authority over the residential location of minor children. Even if two parents agree on relocation, the action must be approved by the court. When relocation is contested, the court must decide the issue in the best interest of the children involved.

In this case, Ms. Christy and her former husband, Brian Christy, have three children. Since the entry of their Judgment of Divorce in June 2012, Ms. Christy has remarried and currently lives with her second husband and his three children. The children of Mr. Christy visit him three weekends per month.

Ms. Christy, an unemployed teacher, sought to relocate to Arizona to pursue a job offer. The job offer to Ms. Christy requires her to recertify as an educator in Arizona. The second husband of Ms. Christy is currently employed in Utah and does not have a job offer in Arizona.

In the earlier family court action, Mr. Christy succeeded in his argument to dismiss the petition of Ms. Christy to relocate. The appellate court agreed with him in January of this year for the following reasons:

  • No evidence of a potential salary was offered by Ms. Christy.
  • No evidence was offered concerning the wishes of the children.
  • No evidence was offered to indicate the lives of the children would be economically or emotionally enhanced in Arizona.
  • The relationship between the noncustodial parent and the children would be affected.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Wednesday, 18 July 2018

Probate Without a Will

When someone dies without a will, those left behind must figure out how to transfer or distribute the deceased person’s property. This often requires going to probate court. Despite the negative publicity probate receives for being complicated and expensive, there are benefits to going through probate without a will.

Probate Without a Will

First, let’s review some probate basics. When you die without a will, this is known as dying intestate. Each state has established guidelines on how property and other assets will be distributed when a person dies intestate. These guidelines are known as state “intestate succession” laws. These laws control how your estate in handled in probate court. Read on to learn more about how probate without a will works.

Benefits of Probate When There’s No Will

Look around your home or apartment, then imagine what would happen if you were suddenly gone. You died and didn’t leave a will. Who would clean your house and where would your belongings go? And what if your heirs started fighting over who kept your dog?

Probate court provides a final decision to many unanswered legal questions that arise when you die without a will. So here’s why you may want to go to probate without a will:

  • Cuts Off Creditor Claims

    : After someone close to your dies, the last thing you want is call from debt collectors. Depending on the laws of your state, beginning probate can reduce the time creditors can file claims to as few as three months.

  • Resolves Conflicting Claims to Property

    : Inheriting property doesn’t always bring out the best in people. Probate doesn’t guarantee heirs won’t litigate disputes over property. But intestate succession laws applied by the court to distribute property can give closure to some disputes. Generally, your heirs include your surviving spouse, siblings, aunts and uncles, nieces, nephews, and distant relatives. The order of who takes first in intestacy is governed by state law. When no relatives can be found, the entire estate goes to the state.

  • Transfers Title

    : Unless real property is held in a trust or some form of joint ownership, it typically needs to go through probate to transfer the name on the title.

What’s the Role of the Probate Court?

State courts typically contain a designated probate division, commonly called probate court. Its primary job is to oversee the process that lawfully resolves all debts, taxes and financial affairs of people who die. Probate court also ensures the remaining assets go to the proper people.

Probate court selects the estate administrator when you die without a will. Generally the surviving spouse is appointed. If there is not a spouse, or they decline, the court will appoint the next nearest relative. Some states have residency requirements for administrators, which can create serious issues for families that are spread across the country.

Starting Probate Without a Will

When a person dies, someone needs to do the work of closing out their estate. If you want to start probate without a will by serving as the administrator, you typically start by filing a petition in probate court. Here’s a step-by-step look at how to get the process going.

  • Step 1: Review the deceased person’s assets to see if the estate qualifies for a small estate probate exemption. You will need to establish a value to the estate and produce an itemized list of all property needing distribution.
  • Step 2: Determine in which county you’ll file probate proceeding. Generally, it’s the county in the state where the person lived. If they own a home, it may be the county where the home is located.
  • Step 3: Bring a certified copy of the death certificate to the courthouse and request forms to Petition for Letters of Administration. By filing this document, you’re asking the court to act as personal representative of the estate.
  • Step 4: Complete and file the form requesting administration. You should be prepared to provide the names and address’ of all living relatives.
  • Step 5: You’re required to let everyone know you’re petitioning for probate. You’ll need to publish in local newspaper or other forms designed to inform people that a Notice of Petition to Administer Estate. Family members will need notice sent to their homes. This serves as a Notice to all creditors to file their claims against the estate. Creditors usually have four months to file their claims.
  • Step 6: Your petition is granted unless another more suitable representative comes forward.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Divorce Alternatives

Are you and your spouse having problems? Are you considering divorce? If you answered yes to either of these questions, you may be surprised to learn that there are alternatives to traditional and often contentious divorce. For many couples who wish to separate, uncontested divorce is the answer.

Divorce Alternatives

Yet for others, the following alternatives are more appropriate:

  • Legal Separation

    If you and your spouse are having problems, but you are not ready for divorce, separation may be a more suitable option. Separation is also good for couples who wish to retain the financial and insurance benefits of being married.

  • Mediation

     One of the features that make mediation so attractive to couples who wish to divorce is the fact that it takes place in a relaxing environment, instead of a courtroom. Mediation also relies on the assistance of a third party mediator. This person helps couples stay focused on the issues at hand, but also acts neutrally. The process of mediation takes place over several short sessions where couples work at coming to mutually beneficial terms. Mediation is more cost-effective and less time-consuming than traditional divorce.

  • Collaborative divorce

     A large number of couples who wish to dissolve their marriage are turning to collaborative divorce. At first glance, it appears similar to mediation. It deviates from mediation by relying on a participation agreement. This agreement binds each spouse and his or her respective attorney from taking legal action. If the collaborative process fails, the legal counsel of each party must resign and each spouse must retain new counsel for litigation.

An annulment might also be an option if you qualify.

Understanding ‘Equitable Division of Property’ in Utah

Like in most other states, Utah law calls for the equitable division of marital property when a couple gets divorced. It’s important to note that “equitable” is not the same as “equal,” although it can be in some situations. The focus is on creating a property division arrangement that is fair, taking into account what each spouse contributed financially to the marriage and what each spouse needs to maintain a reasonable standard of living in the future.

Utah used to be a “common law property” state, in which the property owned by either spouse was distributed according to how the property was titled. If only one name appeared on the title, that person would receive the property outright.

An equitable division arrangement can be much more complex and takes into consideration a greater variety of factors. These include the following:

  •  The income of each spouse
  •  The property each spouse owned at the time of marriage and divorce
  •  Each spouse’s health and age
  •  One parent’s need to live in the family home or use property inside of it
  •  Either spouse’s potential lost pension, insurance or inheritance rights stemming from the divorce
  •  Whether the court awarded spousal maintenance
  •  Whether either spouse has a claim to marital property to which the spouse does not have the title
  •  The financial circumstances of each spouse coming out of the divorce
  •  The overall character of marital property (liquid versus non-liquid)
  •  Whether either spouse has purposefully wasted marital assets during the divorce
  •  Whether either spouse transferred marital property to other people or accounts in anticipation of divorce
  •  Any other factor the court believes to be relevant

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Tuesday, 17 July 2018

Estate Tax Law

Estate taxes are imposed by the federal government and some state governments on the transfer of a person’s property upon death. This is part of the area of Probate Law. Estate taxes can apply when the decedent has an estate plan such as a will in place, and they can also apply if the decedent dies intestate (meaning without a will or other form of estate plan). A number of states have passed laws requiring the recipients of real estate or personal property to pay taxes on the property that’s being inherited. Although these taxes focus on recipients, rather than on the decedent, they are nonetheless considered a form of estate tax. This section contains information and resources on estate taxes as they relate to estate planning and administration. For example, you’ll find a discussion about how to minimize the estate taxes a person pays, an article explaining gift tax laws, an overview of using life insurance to avoid estate taxes, and a link for consulting with an experienced estate planning attorney in your area.

Estate Tax Law

Estate Tax Background

According to the IRS, the estate tax is a tax on your right to transfer property at death. The federal estate tax, in its modern form, was enacted in 1916 and has gone through significant changes, including a temporary repeal in 2001. However, in 2011, the federal estate tax was re-implemented, although with a high threshold that currently stands at over $5 million (meaning that only those property transfers that exceed that amount trigger the federal estate tax).

Utah Estate Tax Attorney

Philosophically, some estate tax opponents question why property that belonged to you during life, and which presumably has already been taxed at the time of purchase, should again be taxed when you pass away. Estate tax opponents also ask why property that is obtained through a person’s efforts and hard work during life should be taxed simply because he or she passes away. On the other hand, supporters of estate taxes argue that these taxes help to reduce economic inequality, and that the revenue they generate help governments at various levels to pay for necessary public services.

The Basics of Estate Taxes

Note that some forms of estate tax are imposed directly on the decedent’s estate, while others focus on the recipients of the property. For example, in some states, estate taxes are imposed upon a person who receives property from the decedent, and the amount imposed can depend on both the value of the property being transferred and on the recipient’s relationship to the decedent. This is very different than the Orem City Code. As you begin to plan your estate, it’s important for you to know the basics about the federal and your state’s estate taxes, so that you make decisions that minimize the amount of tax that’s paid either by your estate or by your inheritors. Depending on the purpose or type of estate plan you create, you may be able to transfer money and other property while avoiding taxes such as the gift tax. For example, one type of estate plan allows a person to create an account dedicated to providing school tuition to another person. This type of account generally avoids gift taxes.

Get Legal Help with Estate Tax Law

It’s common to have questions about estate taxes, such as how to minimize your liability. It’s best to contact a qualified tax attorney who can answer your questions about estate taxes and help you create an estate plan that best suits your needs.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Shared Custody

A recent report in the Washington Post indicates that more than 20 states contemplated implementing shared custody laws in 2017.

Shared Custody

Collaborative co-parenting agreements have become popular among divorcing couples over the last two decades, ending what had once been the typical “every other weekend dad” arrangement. State lawmakers are more frequently considering writing these types of co-parenting arrangements into law in the form of shared custody legislation. These bills would make shared custody arrangements a legal presumption, even if the parents disagree.

In Kentucky, for example, lawmakers passed a bill that makes joint physical custody and equal parenting standard in temporary custody orders while the divorce is being negotiated. In Florida, the state legislature approved a new bill to make equal time a presumption for child custody plans, but the bill was vetoed by Governor Rick Scott. In Michigan, lawmakers are mulling legislation that would make shared parenting time the baseline for custody negotiations.

Why Shared Child Custody?

The recent push for joint custody arrangements is partially a result of years of lobbying by advocates for fathers’ rights, who argue men have been overburdened by child support obligations and too often feel “alienated” from their children. The National Parents Organization has been a player in the fathers’ rights movement, but also has a wider focus on children’s rights and overall parental equality.

Critics of these legislative efforts say they relax protections against abusive or controlling spouses, and also take some legal discretion away from judges who are responsible for determining what is in the child’s best interest in each case.

Considerations for Your Pets During and After Divorce

While many of us think of our pets as being almost like our children, the law certainly does not hold them in the same regard. Pets are handled just like other household possessions in the divorce process. However, because of the strong emotional bond between humans and their animals, determining who gets custody of your pets could be a contentious process.

Legal precedent on pet ownership

There have been some high-profile court cases over the years related to what happens to pets during and after divorce. A 1995 case in Florida received considerable publicity when an appeals court overturned a trial court’s decision to allow a woman visitation to her family dog, which was a premarital asset of her ex-husband. The appeals court declared the woman had no rights as a dog “parent,” as the animal is considered personal property

Many national animal rights advocates believe courts should take the best interests of the animal into consideration, just as they would with a child — even though animals do not have the same legal rights as human beings.

Tips for handling pets after divorce

Regardless of the arrangement you come to regarding pet custody, it is important to work to help your pets cope with the divorce. Just like children, some animals can display signs of stress after a divorce, although the symptoms can be more difficult to identify.

The following are some tips:

  • Always consider what is best for your pet, with factors such as who is in a better place to be able to care for the animal and who is better able to pay for pet-raising expenses.
  • Consider your children’s relationship with the pet; for this reason, pets often go where the children go.
  • If you have more than one pet, avoid separating animals that are bonded to each other.
  • Continue to spend a lot of time playing with your pets.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Monday, 16 July 2018

Signing a Will

So long as you have followed all of the content rules your state requires regarding making wills legal, you have composed a valid last will and testament. The only thing left to do in making wills legal is the signing process. Follow these simple steps to ensure that your will is legally signed and validated.

Signing a Will

Have witnesses sign

As part of proper estate planning, make sure that you date and sign your own will in the presence of two witnesses who are over the age of 18. If you live in Vermont, you will need to do this in the presence of three witnesses. Most states require the witnesses to watch you sign your will together, before they sign. A few states allow the witnesses to sign the will later, so long as you tell them that it is your valid will and that it is your signature on it. It is best to do it all together, to avoid any potential challenges, later.

Most states require that the witnesses be people who are not named heirs in the will. Furthermore, if you had a lawyer draft your will, then you may not use that lawyer as a witness, either.

About half of the states allow what is called a “holographic” will. These are handwritten wills. As long as the testators of these wills handwrite them in their entirety, sign them and date them they make these holographic wills legal, even without witnesses. Holographic wills are the easiest wills to challenge, because there are no witnesses; so, it is best to try and avoid making a holographic will.

Have your witnesses sign a self-proving affidavit

There is no legal requirement of notary signing for your will. However, it is a good idea to have your witnesses sign what is called a “self-proving” affidavit. This is a statement that is sworn by your witnesses before a notary public. Having this affidavit relieves your witnesses from having to swear in probate court to the validity of your will.

Notify your executor or personal representative

There is no requirement to file your will with the court. You should tell your executor (the personal representative who will carry out your will for you) about the existence and location of your will. Most people like to keep their will in a safe deposit box.

Residence requirement

As long as you created a valid legal will according to the state in which you live, then the will is valid in any state where you die. When you move to a different state, review that state’s laws regarding how to make wills legal and marital property (if you’re married). Most likely, you will find that your will is still valid. However, if that state has different requirements, you should revise your will accordingly.

For example, Greg lived in Utah where she created a valid legal will. He then decided to move to Vermont. Greg checked with Vermont’s requirements on what makes wills legal, and discovered that she needed a third witness, when she only had two in Utah. Therefore, Greg revised his will and used three witnesses, rather than two. Does this make sense?

Get Professional Legal Help Before You Sign Your Will

A defective will may not be discovered until it is too late to fix. Once you are dead and gone you won’t be able to explain what you meant, or correct mistakes. Contact a local estate planning attorney, who can help ensure that your estate is distributed in an orderly fashion according to your wishes.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

When is it Right to Seek Full Custody?

While Utah Family Courts consider many factors when making a determination about child custody, the ultimate decision rests on what is in the best interests of the child.

When is it Right to Seek Full Custody

Ideally, both parents are awarded joint or shared child custody so they can play an active role in important activities, milestones, and decisions in the lives of their children. We’ve written about this before here. However, in certain circumstances, the court decides to award sole legal and physical custody, giving the legal authority to make major decisions for the children to one parent alone.

If a parent alleges that the other committed domestic violence or sexual abuse against any household member, and there is sufficient evidence to prove it, the court will deny child custody to the abusive spouse. But if the allegations are unfounded, the alleging parent could lose custody.

Parents can also seek and receive full custody of the children if any of the following grievances apply to their spouses:

  • Unwillingness to honor their parenting time
  • Unauthorized relocation or abduction of the child to a distant location
  • Substance abuse or other conduct that jeopardizes the safety of the children
  • Religious beliefs that threaten the health and welfare of the child

While Utah child custody applies to children under 18, the courts often consider the preferences of minor children, provided they are old enough to have an opinion.

Custodial Interference Can Be a Game Changer

In a decision entered in June , the Appellate division, Third Department, upheld a Family Court finding that interference by a custodial parent was a significant change in circumstances sufficient to alter a designation of primary custody.

In Keefe v Adams, a 2007 order provided joint legal custody to the parents of a son born in 2002. After divorce, primary physical custody was awarded to the mother, with alternating weekends and holidays with the father.

In 2009, the father petitioned for modification of child custody based on alleged interference by the mother and included the following complaints:

  • Child was relocated 42 miles away without notice to the father or agreement, hindering the relationship of father and son, and requiring the child to change schools
  • The mother was routinely 15 minutes to two hours late for visitation exchange, and verbally disparaged the father in front of the child
  • Evidence existed that the boyfriend of the mother was promoted as a substitute for the father

As a result, the Family Court found the behavior of the mother was damaging to the child and deleterious to the relationship of father and son. In the best interests of the child, the lower court ordered, and the Appellate Court affirmed, a change of custody awarding the father sole legal and physical custody with visitation to the mother.

This dramatic family law case underscores the necessity of vigorous legal representation if the parent of your child is being hostile or interfering—or if those charges are being leveled against you.

Fathers — A Matter of Rights

Without question, a father seeking sole or even joint custody of his children without agreement of the mother has a tough case ahead of him.

Utah courts[H1] decide child custody matters based on the best interests of children. Historically, payment of custody support and visitation was allocated to fathers while child custody was awarded to mothers. Even today—make no mistake—many settled and litigated cases fall along those lines.

But cultural perspectives and family law are changing. With a focus on father’s rights, our firm has participated in an upswing of victories on Long Island for fathers who want to be parents, not just visitors.

If you want to support or restore your position in the life of your children, take note of the following approaches we have successfully used to enforce the rights of men:

  • Relationship matters: In relying on best interest factors, a court looks for quality of relationship between parent and child. Do not let legal counsel overlook the close and warm ties you have with your child.
  • Preference: By teen years, courts give greater weight to living preferences expressed by children. Arranging an in camera interview between child and judge can help the court understand the real needs and desires of your children.
  • Flexibility helps: Flexible work schedules can give fathers a better shot at custody.

Despite changing times, fathers’ rights cases are still complicated. Make sure your attorney is not afraid to protect your rights aggressively—and those of your children—when necessary.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Sunday, 15 July 2018

Divorce Process

A divorce starts with a divorce petition. The petition is written by one spouse (the petitioner) and served on the other spouse. The petition is then filed in a state court in the county where one of the spouses resides. It does not matter where the marriage occurred. The petition includes important information regarding the marriage. It names the husband, wife and any children and states if there is any separate property or community property, child custody, child support, and alimony or spousal support.

Divorce Process

Serving the Divorce Petition

The petition (or the divorce papers) must be served on the other spouse. This phase of the process is called “service of process.” If both spouses agree to the divorce, the other spouse only needs to sign an acknowledgement of the receipt of service. However, if the other spouse refuses to sign or is difficult to locate, you can hire a professional process server to personally deliver the papers.

Completing service of process starts the clock running on your state’s waiting period. It also sets automatic restraining orders on the spouses and helps establish the date of separation. At this point, the spouses are not permitted to take any children out of state, sell any property, borrow against property, or borrow or sell insurance held for the other spouse.

Divorce Petition Response

The other spouse is known as the “respondent.” Although it’s not required, the respondent can file a response to the petition saying he or she agrees. Filing a response shows both parties agree to the divorce. This makes it more likely the case will proceed without a court hearing, which could delay the process and cost more. Generally, if a response is not filed within 30 days, the petitioner can request that a default be entered by the court. The responding spouse can also use the response to disagree with information presented in the petition.

Final Steps of a Divorce

Both spouses are required to disclose information regarding their assets, liabilities, income and expenses. If the divorce is uncontested and the spouses can agree on the terms of the divorce, there is only a bit more paperwork to file. Once the court enters the judgment, the divorce is final. However, the marriage is not formally dissolved and the spouses cannot remarry until the end of the state’s waiting period. If there are disputes that cannot be resolved, court hearings and maybe even a trial will be required.

Legal Requirements for Divorce

Under most state laws, a divorce (or “dissolution”) action must be filed and decided in court. All states have a “no-fault divorce” policy. In other words, the courts are not concerned with which spouse was guilty of marital misconduct.

The following legal requirements are necessary to file for divorce in most states:

  1. Residency: The spouse filing for divorce must have resided in the state and county for a certain period. Six months is a common state requirement, and three months is typical at the county level.
  2. Waiting Period: Most states have a mandatory waiting period from the filing to the finalization of a divorce. In other words, you cannot file and finalize a divorce on the same day. The average waiting period is 6 months but can be anywhere from 0 to 12 months. After the waiting period, the divorce is finalized and both parties are free to remarry.
  3. Legal Grounds: States generally recognize two legal grounds for divorce: (1) irreconcilable differences and (2) separation. “Irreconcilable differences” simply means there are marital difficulties that cannot be reconciled and have led to the permanent breakdown of the marriage.
  4. Jurisdictional Requirement: An action for divorce must be filed with the proper court. The appropriate court is typically in the county where either the wife or husband has resided for at least 3-6 months prior to filing for divorce.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Uncontested Divorces

Uncontested Divorces

In an uncontested divorce, you and your spouse achieve an agreement about the greater part of the issues in your divorce. Once you’ve achieved these agreements, you don’t need to go into court and contend. Rather, you document court shapes and a “conjugal settlement agreement” that details the agreements you’ve made about how you need to isolate your property and obligations, what your custody courses of action for your children will be, and whether support payments will change hands. Your settlement, and your final divorce, will have to be approved by a judge, which shouldn’t be any problem. The judge will usually approve a settlement agreement unless it’s clear that the terms are completely unfair to one person or were arranged when one person was under duress.

Cost of an Uncontested Divorce

An uncontested divorce is the least costly divorce that you can possible get. However, even it will make some real progress on your wallet. You’ll have to figure out how to prepare and file the court papers, you’ll have to pay filing fees, and you may want to get some help from a divorce lawyer . You might also buy books or other materials to help you. (Your court’s website may provide free help, too—it’s worth looking, as many court websites have useful information.)

Get Help with your Divorce

You’ll likely have the capacity to deal with your uncontested divorce with almost no assistance from a legal advisor, however you might need to request that a legal counselor investigate your paperwork and, maybe, to audit your settlement agreement. Many couples use a counselor or a mediator to help them come to agreement on property and custody issues. And if you or your spouse has retirement benefits through work, you might need to hire an actuary to value them or a lawyer to prepare the special court order you’ll need to divide them.

Assuming you use professionals for these tasks, you should be able to get everything done for between $2,500 and $5,000, depending on where you live and how much lawyers charge as well as the court filing fees and service fees.

Stay Away from Legal Document Preparers

A legal document preparer can really mess up your divorce paperwork. Be very careful.  In numerous states, document preparers, paralegals, or notary or typists (different names for a similar activity) can enable you to plan court frames for a divorce. They cannot give you legal advice, but they can direct you to helpful resources and then make sure the forms are properly filled out so that your court process goes smoothly. Because they can’t give you legal advise, and some of them have no idea what they are doing – other than selling you some paperwork – you really should speak with a divorce lawyer.

How Long Will an Uncontested Divorce Take?

In the event that you and your spouse both remain over every one of the undertakings you have to deal with, you ought to have the capacity to conclude your divorce when the holding up period (each state has one) is finished. So depending on your state’s requirements, you could be finishing your divorce within a few months, or you may have everything done and just be waiting around for the date when you can file the final papers.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Saturday, 14 July 2018

Understanding Alimony

All spouses have an obligation to deal with each other in some form or fashion, and that obligation carries on even after divorce when one spouse needs financial help from the other, as support installments.  In Utah, sometimes you can escape alimony – but if you’ve been married for over 7 years, and one of the parties has been a “stay at home” mom or dad – there is a chance you may have to pay alimony.

Types of Alimony

In Utah, alimony is referred to in three different ways: as alimony, spousal support, and maintenance. Temporary maintenance is an order that one spouse must financially support the other while the divorce is being finalized. Once the divorce is finalized, the temporary maintenance stops and the judge decides whether permanent alimony is appropriate. A spouse could receive temporary maintenance but no permanent order once the divorce is finalized, or could receive no temporary maintenance during the divorce but later receive a permanent order. Judges decide whether or not to order spousal support based on individual circumstances of each case.

How Alimony Works

To decide whether spousal support is appropriate, the judge will look at the needs of the spouse asking for support and whether the other spouse has the financial ability to provide financial help. For example, if your income is lower than your spouse’s but you are able to support yourself, you may not be entitled to alimony. The court will also look at other factors when making a decision about support:

  • the length of the marriage
  • each spouse’s age and health status
  • each spouse’s present and future earning capacity
  • the need of one spouse to incur education or training expenses
  • whether the spouse seeking maintenance is able to become self-supporting
  • whether caring for children inhibited one spouse’s earning capacity
  • equitable distribution of marital property, and
  • the contributions that one spouse has made as a homemaker in order to help enhance the other spouse’s earning capacity.

The court will also look to see whether the acts of one spouse have inhibited or continue to inhibit the other spouse’s earning capacity or ability to obtain employment. The most common example of this would be domestic violence. If one spouse’s abuse of the other affected that abused spouse’s ability to maintain or to get a job, the court might consider those actions in making its order.

Understanding Alimony

Length of Alimony

Impermanent upkeep orders end when a last judgment for divorce is entered. Regardless of whether you’ve been accepting provision while your divorce was in process, you will just keep getting installments if the judge makes a changeless request for it. Permanent alimony ends either on a date specified in the order, at the death of either spouse, or when the spouse receiving alimony remarries

Either of the spouses can ask the judge to modify the permanent order if there is a substantial change in circumstances. For example, if the spouse receiving support gets a better paying job, the court may reduce the payment amount or even terminate the payments.

The state of Utah provides an online guideline calculator for temporary spousal support. The calculator only looks at each spouse’s income and does not take into consideration any of the factors listed above, so you’ll get an estimate but not necessarily the exact amount the judge would order.

Alimony is tax deductible to the paying spouse and must be reported as income by the receiving spouse.

Free Consultation with an Alimony Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Power of Attorney and Living Will

There are two types of documents that can make end-of-life decisions easier for you and your loved ones: the power of attorney and the living will. When you create these documents, you will have the peace of mind that your end-of-life care will be carried out as closely as possible to what you wish. You can also be confident that your loved ones won’t be stuck making tough decisions that could divide them just when they need each other most.

Power of Attorney and Living Will

Living Will in Utah

A living will doesn’t actually do anything that most people commonly associate with wills, like distribute property. Instead, a living will lets those around you know what kind of care you do, or do not, want to have in the event that you are unable to communicate your wishes because of a debilitating injury or illness.

Your living will can be very specific or very general. You can spell out exactly what kind of procedures you want or don’t want, or you can make a general pronouncement and leave it up to those around you to determine how to proceed.

If you elect to go with the general approach, it is particularly important to craft a power of attorney. Even if you attempt in your living will to spell out what you want in every conceivable circumstance, however, you should still have a power of attorney in place. No one can predict every eventuality, so it is important to have someone you trust in place to make the hard choices you didn’t foresee.

Power of Attorney for Healthcare

With what is known as a durable power of attorney for health care, you can designate an agent that will make decisions that weren’t covered by your living will. It is important to note that your health care agent can’t overrule any of the provisions of your living will. Your agent can only supplement your wishes if something comes up that you didn’t anticipate in your living will.

If you have already designated a power of attorney for financial decisions, keep in mind that conflict can arise between your financial and health agents. It’s best to choose individuals that you know can work together and who have your best interests at heart.

Drafting a Advanced Healthcare Directive

In order to create either a living will or a power of attorney for healthcare, most states only require that you are an adult (typically 18) and are competent when you create the document.

When a Living Will or Power of Attorney for Healthcare Begins

Both of these documents take effect when your doctor declares that you lack the “capacity” to make your own health care decisions. The standard is different in every state, but typically you no longer have the capacity to make health care decisions if:

  • You do not understand the nature and consequences of the health care decisions you are required to make
  • You cannot communicate your decisions orally, in writing or through gestures

Another option allowed in some states is to name a healthcare agent, who can act for you at any time if you grant them the power. This is a popular option with spouses and allows for immediate decisions to be made without having to have a doctor declare you incapacitated. Your healthcare agent can’t override the healthcare treatment wishes you set forth in your living will, and must always abide by your best interests.

When a Living Will or Healthcare Directive Stops Working

Your living will and the power of attorney for healthcare are generally extinguished upon your death. This also means that your healthcare agent, if you designate one, can only make healthcare decisions for you while you are alive and incapacitated. Some states allow your healthcare directives or agents to remain effective after your death only for limited purposes, such as the disposal of your remains.

Otherwise, your living will generally only ends if it is terminated by you or a court. The power of attorney for healthcare can similarly be revoked, but may also be affected by a divorce. Some states automatically revoke a divorced spouse as a healthcare agent, and any alternate you name would become your new healthcare agent. To avoid confusion, designate a new healthcare agent upon a divorce and always name alternate agents when drafting the original document.

Free Consultation with a Utah Power of Attorney Lawyer

If you are here, you may need help with a power of attorney for healthcare decisions or an advanced healthcare directive in Utah. If this is your situation, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Friday, 13 July 2018

Alimony or Spousal Support

Spousal support (also called alimony) falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. We’ve written about alimony before here and here and here among other places — and we’ve even provided you with an alimony calculator so you can “do the math” so to speak on your case.

Alimony or Spousal Support

How long one ex-spouse must help support the other is as much in the judge’s discretion as is the amount of support. Some judges start with the assumption that support should last half as long as the marriage did, and then work up or down from there by looking at certain factors. Most states don’t have guidelines for the duration of support, but some do—for example, in Texas and Indiana, payments are limited to three years except in special circumstances. In Utah, support can’t last any longer than the marriage did. And in some states the marriage must have lasted at least ten years for a court to order support at all. How long support lasts depends on the nature of the support.

It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.

Temporary Alimony While the Divorce Is Pending

You and your spouse don’t need to wait until everything in your divorce is settled to work out spousal support arrangements. In fact, the support issue may be most important immediately after you separate, to support the lower-earning spouse while your divorce is in process.

It’s always a good idea to make a written agreement about temporary support. (For one thing, payments are tax deductible only if there’s a signed agreement.) If you can’t agree on a temporary support amount, then you’ll probably spend some time in court arguing over it. If you have a right to support, it starts as soon as you separate, so get yourself to court right away.

Short-Term Spousal Support

Judges order short-term support when the marriage itself was quite short. Short-term support lasts only a few years, and its precise ending date is set in the court order.

Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed in the industry. The recipient is responsible for diligently pursuing the training or course of study and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.

Permanent Alimony or Spousal Support

Permanent support may be granted after long marriages (generally, more than ten years), if the judge concludes that the dependent spouse most likely won’t go back into the workforce and will need support indefinitely. Some states don’t allow permanent support.

It’s odd, but in fact even so-called permanent support does eventually end. Of course, it ends when either the recipient or the payor dies. It also may end when the recipient remarries. And in about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities.

Reimbursement Spousal Support

Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of the expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage.

Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying.

Free Consultation with an Alimony Lawyer in Utah

If you have a question about divorce, alimony, or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506