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Sure, but why risk it? You may lose and end up in jail for a long time.
If you just received your first DUI then it is imperative that you do not sit back and expect to get a break from the legal system. You must take action and equip yourself with all possibilities on how you can beat your first DUI and dismiss all charges in court. There are too many times that first DUI cases that have gone horribly wrong for innocent first time offenders who simply had one drink over a state limit. Finding out what you’re up against is the key to beating your first DUI.
Did you know that a first DUI conviction and even DUI supervision will show up on your record? Many employers will not even consider employment for anyone who has a DUI on their record. The bottom line is you must fight to get these charges dropped and get your life back on track. Most importantly you must learn from your mistake and move forward without getting slammed by extreme DUI penalties.
If you have recently been arrested and accused of driving under the influence, you are facing a dilemma. That is, you might not be able to decide whether to go with a public defender or an experienced DUI attorney. When you’re arrested, you are read your rights. These include the right to remain silent and the right to an attorney. However, the attorney you get in court isn’t always the best available. On the other hand, an experienced attorney is going to be expensive. This is a hard decision to make, but the following tips should help you get through this difficult time.
Public Defenders
A public defender is an actual attorney that is employed by the government to represent the accused who can’t afford their own attorney. So don’t automatically assume that you’re going to get a dud when you’re assigned to a public defender. However, you must understand that most courts have an influx of cases on a regular basis. That means one public defender might have several cases going on at one time. That means he or she has the potential to be stretched too thin or things about your case could be forgotten. So that’s something to think about if you are thinking about accepting the public defender for your counsel in your DUI case.
Private DUI Defense Lawyers
When you select a private DUI attorney, the motivation and attitude is often different. Private attorneys are inherently hungrier for wins in the courtroom and they’re often very crafty. You will want to choose a private attorney with a lot of experience and a great track record so that you can be sure he or she knows their way around a court room. Private lawyers go into great detail about how to get their clients off the hook. That’s because this is their livelihood. A public defender is an employee while a private attorney is self-employed. His or her track record will make or break their business. For that reason, you may be getting a better deal when you go with a private attorney in these cases.
Get Money If You Don’t Have Any
This all being said, it all comes down to what you can afford. When you go with a public defender, you aren’t footing the cost. The tax payers are. But when you choose a private DUI attorney, you are footing the entire cost. And that cost could be very expensive, depending on who you choose. A lawyer with a solid track record and a well-known name can charge astronomical prices because people will pay it. DUI cases are that serious.
If you have been arrested for DUI or DWI, it is obviously cause for concern–but not for despair. By hiring a quality defense lawyer who can protect your rights, there are a host of ways your case may be defendable. That’s why it would be a good idea to consider hiring one of America’s Top DUI and DWI Defense Attorneys now. Here’s a few ways our lawyers may be able to win your case. Even if your case involves a drug, drugs, medicine or alcohol, they will help.
ILLEGAL STOP OF PERSON OR VEHICLE – a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.
WEAVING INSIDE THE LANES IS NOT ILLEGAL – weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.
ANONYMOUS REPORT OF DRUNK DRIVING – a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.
STANDARD FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.
NON-STANDARDIZED FIELD TESTS ARE INVALID – neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backward, as valid sobriety tests.
BREATH TESTING IS INACCURATE – virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to various inaccuracies, including a variance as much s +/- 12.5%, non-specificity for ethanol, etc.
BOOKING ROOM VIDEOS – Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.
IN-SQUAD VIDEOS – more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony.
FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.
POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.
HOSPITAL BLOOD TEST INACCURATE – Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.
BREATH TEST OPERATOR UNLICENSED – Most states require a Breath Test Operator to possess a valid, unexpired operator’s license, or the breath test result is inadmissible.
BREATHALYZER MACHINE MALFUNCTIONS – Most states specify that if there is a malfunction or repair of the breath test instrument within a certain period of time before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid.
BREATH TEST OPERATOR LICENSE EXPIRED – Most states require that a Breath Test Operator must possess an unexpired operator’s license, or the breath test result is inadmissible.
BREATH TEST DEVICE NOT APPROVED – A breath-testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved a list of Devices, or the results are inadmissible.
FAILURE TO PROVE DRIVING UNDER THE INFLUENCE – A defendant’s admission to driving, without more, does not prove a charge of driving under the influence.
INDEPENDENT WITNESSES – Oftentimes, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.
FAILURE TO MIRANDIZE – Prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.
FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.
OFFICER’S PRIOR DISCIPLINARY RECORD – A police officer’s previous disciplinary record can be used to attack the officer’s credibility.
PORTABLE BREATH TEST INADMISSIBLE – Most states prohibit the use of portable breath testing results as evidence at trial in a DUI case.
PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.
FAILURE TO CONDUCT OBSERVATION PERIOD – Most states require that a driver be observed continuously for a minimum period, such as twenty minutes, prior to a breath test in order for the results to be considered admissible and valid.
EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests, and field sobriety tests.
MEDICAL AND HEALTH PROBLEMS – Medical problems with legs, arms, neck, back, and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.
BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.
LACK OF PROBABLE CAUSE TO ARREST – A police officer must have specific and articulate facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.
ILLEGAL SEARCH – The police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court.
PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS – Any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.
POST-DRIVING ABSORPTION OF ALCOHOL – The prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.
INTERFERING SUBSTANCES – Many items contain forms of alcohol, which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause breath results to be invalid.
BREATH MACHINE NOT PROPERLY OPERATED – The manufacturers of breath testing devices have specified protocols, which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.
FAILURES TO PRODUCE DISPATCH TAPES – Most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence, which could have been recorded to be suppressed.
MISLEADING STATEMENTS BY POLICE OFFICERS – Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver’s record.
STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within a certain period of time (which varies between states) of the date of offense, or the charges will be dismissed outright.
PRIVATE PROPERTY – A person who has not driven the car on a public highway cannot be suspended for drunk driving.
FAILURE TO DISCLOSE EXPERTS – The failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant.
LACTATE RINGERS – When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.
FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.
FORCED BLOOD DRAWS – In some states, the police may not take a blood test against the driver’s consent where there has not been an injury involved, or the result is inadmissible.
Most people believe all police have noble intentions but on first DUI victims, they are sometimes much too harsh and use scare tactics on innocent drivers. Your immediate action is required in order to challenge all aspects of the arrest.
DUI Defense Lawyer Free Consultation
When you need legal help with a DUI charge in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088United States
Telephone: (801) 676-5506
If you are seeking a divorce, speak to an experienced West Jordan Utah divorce lawyer. The divorce laws have come a long way since colonial times.
In colonial times, and even after independence, divorce law in the United States varied widely across the states, with southern states generally more inclined toward the English aversion to absolute divorce than their northern counterparts. By the late nineteenth century, every state had moved to a fault-based divorce regime, which authorized absolute divorce, but only for an innocent spouse who could prove that the other spouse had engaged in serious marital misconduct. Such misconduct typically included adultery, cruelty, or abandonment. Without proof of such wrongdoing, divorce was unavailable, no matter that the spouses disliked or even hated each other.
By the end of World War II, a shifting emphasis on individual happiness rather than family stability had sparked questions about the legitimacy of fault-based divorce laws, which were increasingly viewed as pesky anachronisms. Not surprisingly, spousal collusion was widespread. If both spouses wanted out of the marriage, they could game the system by together fabricating grounds for divorce. This collusion was no secret: the courts, the clerks, the lawyers, the parties—virtually everyone—was aware of its reality, but distaste for restrictive divorce laws led most to look the other way. For a time, collusion effectively transformed many fault-based laws into mutual-consent divorce regimes.
While fault-based restrictions on divorce and the collusion they inspired were not the finest moment in the history of American family law, this scheme did offer some protection to caregivers—at least to caregivers who had not committed marital fault and whose spouses were eager to escape the marriage. Such “innocent” caregivers could bargain for financial concessions, offering to collude in manufacturing grounds for divorce in return for a bigger share of marital property or generous alimony settlement. Of course, not every caregiver was innocent. Nor was every caregiver less eager to leave the marriage than her spouse or willing to lie to a court about the existence of grounds for divorce in order to improve her economic positioning. At most, fault based divorce threw a few bargaining chips to some innocent caregivers.
At least in theory, fault-based divorce regimes also protected some innocent caregivers by providing a rationale for alimony. In an analogy to contract, a spouse who engages in marital misconduct might be said to have breached the marriage contract and thus be liable for alimony as damages. Under this reasoning, a husband who committed adultery, for example, would be required to pay alimony to an injured caregiver. Of course, such a fault-based rationale for alimony would protect only caregivers who are innocent and whose mates are guilty; that is, no innocent spouse would ever pay alimony and no guilty spouse would ever receive alimony.
Alimony has a terrible reputation. For many, the word triggers nasty visions of the abused male, as indolent young women enjoy a country club lifestyle at the expense of their hardworking yet impoverished ex-husbands. Such visions, though largely mythical, seem close to the core of no-fault statutes that discouraged indefinite-term alimony. Early no-fault courts were powerfully seduced by visions of spousal rehabilitation.
Rehabilitative alimony seemed to offer a solution for everyone. If divorcing caregivers could be swiftly retrained, both spouses would soon be freed to begin new lives. Everyone would be happy—financially autonomous caregivers and their alimony-free ex-spouses, no-fault theorists advocating a clean break at divorce, and feminists shunning the need for male support.
Seek the assistance of an experienced West Jordan Utah divorce lawyer if you have decided to divorce your spouse. Once you decide to divorce your spouse, “be prepared for a fight”. You shouldn’t be surprised if your spouse becomes angry about the divorce because dissolving a marriage can bring out the worst in people. Some pre-divorce financial planning can ensure that your interests, and those of your children, are well-protected. For starters, get copies of the statements of all of your joint financial obligations, including those accounts with brokerage houses, credit card companies and other debtors. Also, secure insurance policies, bank and loan statements, pension plan documents, mortgage payments, recent tax returns and estate planning information.
Depending on how you believe your spouse will react, it may be best to keep your plans for divorce under wraps until you have all of the information you need to support your case. If you fear your spouse will try to take money from your accounts or hide important papers, you can ask a judge to intervene on your behalf. On the other hand, you don’t want to be antagonistic either. A divorce fight means that “both of you will be living your lives by your lawyers’ rules and that’s not a good thing.
When you’re compiling information, take inventory. Early on, you’ll need to determine what things you want to take with you when you leave the marriage, unless it’s already been predetermined in a prenuptial or postnuptial agreement. The two basic legal terms for dividing property are equitable distribution and community property. Under equitable distribution, assets, earnings and debts are divided “fairly”–although this doesn’t necessarily mean a 50-50 split. Two-thirds of the assets are often given to the spouse with the higher earnings and the remaining one-third to the other spouse
At some point, you may need to consult with an accountant or some other resource to determine your tax liability under certain special circumstances. For example, the payments you receive from your spouse’s pension plan or IRA are taxable when you actually withdraw the money, but you may not know this unless you seek the advice of a professional. You can use the same resources to determine whether you receive any tax benefits from the payments you make toward your spouse’s medical costs, rent, tuition, life insurance or other expenses. Alimony payments, whether they are rehabilitative (for a limited period of time to help a nonworking spouse upgrade skills) or permanent (usually awarded to a spouse suffering from physical or mental illness), can also impact property distribution, especially if one party is able to exchange property for alimony payments, but this can only be decided in court.
In the meantime, make a list of all of the property you and your spouse own, put an “H” or “W” next to the husband’s or wife’s separate property, including debts. Then determine which items you would like to keep after the divorce. In making these assessments, ask yourself (and your lawyer) these three questions: (1) How much is it worth to me in today’ s dollars? (2) How likely is it that I will win? and (3) What is it costing me to fight about it?
Getting answers to these three questions can help you avoid some pretty costly battles. Most people don’t know how to ask these questions and their attorneys don’t know how to answer them. But you shouldn’t make a move unless you understand how your actions impact your future.
One of the little secrets about divorce is that most people don’t spend a lot of money. There are a lot of assumptions that people make about divorce that just aren’t true. For example, it’s widely believed that you absolutely need a lawyer to get a divorce. In fact, there are people who get through a divorce without hiring a lawyer, especially if they don’t stand a chance of losing anything. But it is not advisable to do so. If the couple trust each other and don’t have any issues relating to property or children, they don’t necessarily need an attorney.
On the other hand, “You shouldn’t be penny-wise and pound-foolish”. You can pay an attorney for a consultation and they can give you an assessment of your situation in five minutes. This will help you get some of your questions answered and determine whether you feel comfortable handling the divorce yourself. You can always retain an experienced West Jordan Utah divorce lawyer later if necessary.
If you do choose to hire a lawyer to handle your case, it doesn’t have to break you financially. Instead of having the lawyer do all of the footwork, tell him that you can walk the paperwork to the court yourself. Be honest with your attorney and tell him that you don’t have a lot of money but you are willing to help. Most lawyers will be open to this. There is also the process of “unbundling,” or what is referred to as “supermarket shopping for divorce.” This is where you pay a lawyer for some services but opt to complete others yourself. Anything that you can do on your own, you shouldn’t pay a lawyer to do it.
Another time and money saver takes place in the court-room. Before your case comes up, watch at least one divorce case in progress. Check with the superior court clerk and ask them when divorce court is in session. Then sit in on divorce proceedings. This will give you a chance to see the divorce process in action, assess the atmosphere of the courtroom, learn what the judge will ask for and see how issues which may apply in your case are dealt with.
Whether you represent yourself or use an attorney, estimate how much you think your divorce will cost–up front–so you can make all of your payments in a timely fashion. At a bare minimum, you’ll need to pay court filing and service fees; a service charge for the court to serve your spouse with your complaint. Attorney fees vary widely, according to the attorney’s experience and geographical area. But you can expect those lawyers that specialize in divorce matters to charge more than a general attorney. When the plaintiff hires the attorney, a fee is set. Initially, the plaintiff gives the attorney a retainer, but the balance must be paid before the trial date.
Open communication between a husband and wife provides the most valuable protection against a costly divorce, but sometimes lawyers, hurt feelings and pride interfere. Of course you don’t want to talk to your spouse. You’re getting a divorce, and one of the main reasons you’re getting one is a difficulty in your relationship with your spouse. However, if you can’t talk to your spouse, your divorce will take longer and cost more. In all likelihood, it will probably hurt more too, because things will drag out and you will realize at some point that you have lost control.
Adversarial divorces cost too much money, take too long, inflict too much pain and leave both spouses feeling like losers. In an adversarial divorce, you, your spouse, your lawyer, your spouse’s lawyer and the judge all have to be present and ready to take action. If any one of these parties is absent or unprepared, your case will probably be at a standstill until it comes up again on the calendar–and that could take several weeks, maybe months. And because your case is dependent on when your lawyer as well as your spouse’s lawyer have openings in their calendars, there could be lengthy delays.
Children and Divorce
Often people argue about child custody when they are really arguing about money, either trying to get child support or avoid paying it.
Shared parenting or joint custody would be the most equitable solution for divorcing couples. Both parents should contribute to the emotional and financial welfare of the child. The court will generally adhere to any agreement the two parties reach, provided it won’t harm the child. Aside from custody and visitation issues, your arrangement should also stipulate which parent can claim the children as tax deductions. Once child custody issues are resolved, start planning for a brighter future.
Learn From Your Mistakes And Move On
When you get the papers, there is a sinking feeling in your stomach. It’s no wonder. Most people rate divorce as one of life’s most stressful events and it’s often difficult to repair the financial and emotional damage. Divorce causes people to act abnormally.
It also helps to base your decisions on the facts rather than your feelings. Long warns against suing for material goods or financial amounts that are way out of your spouse’s reach. Regardless of what your lawyer says, you know the earning ability of your mate and you should try to work within that framework. If you’re willing to compromise you can do a lot better.
What you need to get your divorce under way:
• Social Security and driver’s license numbers
• Recent tax returns
• Mortgage statements and other credit and debit statements
• Copies of bills or receipts for regular expenses (electric, gas, car insurance, etc.)
• Additional income statements (interest accrued, stocks, bonds or other investment documents)
• Recent pay stubs for you and your spouse
• Deeds to any property
• Titles to cars, boats and other vehicles
• Wills
• Health insurance cards and papers
• Life insurance policies
• Pension and retirement fund papers and statements
• Names, addresses and phone numbers of your spouse’s employers, close friends or family members
• Copies of bills, receipts, insurance forms or medical records for any unusual medical expenses for yourself, your spouse or your children
• Any other papers showing what you and your spouse earn or owe
What type of divorce will you file?
In Utah there is uncontested and contested divorce proceedings.
The parties are able to agree among themselves and enter into an agreement that includes provisions for child support, visitation and property division, and they request that the agreement be incorporated in the final decree, or The plaintiff files the complaint and the defendant was served but has never answered, or The plaintiff does not know the whereabouts of the defendant and it is done by publication.
Contested
The parties are not able to agree on the issues that are pertinent to the divorce.
Legal advice should be obtained from an experienced West Jordan Utah divorce lawyer at an early stage before any final decisions are taken. Divorce is, after all, a legal process. No responsible solicitor or other adviser will recommend that divorce be undertaken lightly because its consequences, unless they can be agreed, may be unforeseeable. Too frequently, couples separate and make separate arrangements without finding out whether the agreed solution is feasible. Of course if a marriage between financially independent partners ends in circumstances where there are no dependent children it may be that that neither wishes to incur the costs of legal advice; and the only significant asset may be a home which is to be sold and its proceeds equally divided. Many eventualities can be anticipated which should be considered and prepared for in advance. It would be unfortunate if, having divorced on an agreed basis, the husband or wife were later to lose work or earning capacity and find that there was no possibility of claiming maintenance from the other. Equally, if a claim for maintenance was made in a petition and was not dismissed later by an agreed order, the later inheritance of money by the other party could result in a financial claim being pursued.
There are limits to what divorce and financial proceedings can achieve. One purpose of early legal advice is to obtain information as to the likely range of settlement which, in each case, it may be possible to expect. If a client is prepared to discuss matters with his or her spouse in an attempt to resolve matters it may be useful to refer the couple to mediation. Mediation is a process designed to help couples resolve their disputes in relation to children and money. There are many different models, some involving one mediator and others two. It can take place before or during the divorce and financial proceedings. It may result in no agreement at all or agreement on some or all issues. Each party should always obtain independent legal advice on the proposed terms of settlement.
The format of mediation meetings is informal and first names are generally used between the mediators and their clients. The emphasis is on forward-looking discussion rather than on analysis of the breakdown which concentrates on the past; this does not exclude discussion of the past but rather emphasises the need to plan solutions. The second session is preceded by completion by each party of a very detailed financial questionnaire. The number of sessions in the course of which terms of settlement may be worked out is between three and six. If proposals are made which can be agreed they will be set out in a summary prepared by the mediators. The agreement is ‘without prejudice’. It is fundamentally important that clients should obtain independent advice before entering into a legally binding agreement. Whether agreement is finally reached or not, the disclosure of financial information, and often other information verified by the necessary documentation, can save solicitors time and the clients legal costs. There is a point in negotiations where delay on one party’s side may have so prolonged the tension, and increased the costs, that an application for ancillary relief should be made to the court for it to determine the matter. The fact that proceedings have been instituted should be a trigger to more purposeful negotiations. External events may complicate or facilitate settlement prospects. A child may leave university and get a job. One of the parties may get a better job or lose one. The housing market in the area may change with the advent of a new firm or the disappearance of another. One party may develop a new relationship.
An experienced West Jordan Utah divorce lawyer will provide details of guidelines used by the court in settlement of financial claims, and in cases involving children will be familiar with the different kinds of arrangement which can be made.
One or both parties to a marriage may be deterred from proceedings because of the uncertain outcome of the financial applications they may make or of their applications in relation to the children; they should always be aware of the time, energy and costs which will be consumed. Separation may be an easier alternative in the short or medium term; divorce after all is not compulsory. On the other hand if, having obtained all the necessary information and advice, it is essential for the well-being of the family and the individuals to proceed, negotiations to lead to a divorce should begin.
The rates of solicitors vary according to location, the experience of the solicitor and his or her reputation. The most experienced are not necessarily the best, and the cheapest may not be inexperienced, but when charging, more experienced solicitors will cost more than newly qualified solicitors, and solicitors cost more than trainees. However, more experienced solicitors may do the work more quickly and may adopt an overall approach that will lead to less tension and lower costs. What no solicitor can do is to control the conduct of the case unilaterally. If opposed by a solicitor who is determinedly litigious or if his or her client will not try to compromise in order to achieve a settlement, costs will inevitably increase. If junior staff are employed they should be strictly supervised. The partners of a firm are professionally liable for negligence, that is, failing in their duty to their clients, with the result of loss or damage. This liability extends to liability for the work of their staff.
A matter may be resolved before it is heard. If so, costs will be one of the terms to be agreed. Frequently, after a case has been contested and the parties reach an agreement to avoid a hearing there is an agreement that there should be no order as to costs. A judge at the end of a contested hearing may also make no order as to costs. There are many varieties of order. Where it is necessary to make an application for a financial questionnaire to be answered, the spouse making the application will seek costs against the other. It may be necessary to take steps to obtain or enforce orders in relation to affidavit or other evidence. Where the applicant has merit on his or her side, costs may be awarded in his or her favour or they may be ‘reserved’. In that case an order for them must be asked at the eventual hearing. There are of course cases where there is nothing to be lost by making plain in the affidavit evidence filed at the court what an applicant or respondent’s position is; and the terms offered or the terms which he or she is prepared to accept can then be set out in the affidavit.
The value of a sensible offer, open or without prejudice, is that it can protect the party making it from payment of the subsequent costs of the other party. If the offer is rejected and if the order made by the court is not as favourable to the other party as the offer would have been, the party who made the offer can seek costs from the date the offer was made.
Costs are a matter entirely in the court’s discretion and because the outcome is uncertain each litigant has to budget for meeting his or her costs as the case progresses. Where at the end of the case, having paid his or her own costs throughout, a litigant is ordered to pay the opponent’s costs he or she may well have to sell some of the assets recovered in order to do so.
Child Support
Divorce can swiftly end a marriage, but the economic consequences can last a lifetime. As with many aspects of family law, the law governing the economic consequences of divorce underwent a dramatic shift during the twentieth century. In broad brush, husbands lost exclusive control and ownership of property during and after marriage; more and more they had to share ownership during marriage with wives, who had strong claims to property upon dissolution; the common-law tradition that relied on strict (and unequal) gender roles shifted to a more egalitarian approach. Yet even under the modern rules, women suffer more financially than men after divorce.
These changes, despite their importance, took place quietly, with little fanfare. Also, in a way, modern law was shaped not only by the way in which gender roles have changed, but by the way they have remained the same for many couples. The common-law system assumed that women would stay home as housewives and this was mostly true. Modern law has to take into account the persistence of traditional patterns, in which still more women than men never work, quit working, or work less in order to keep house and raise children, and therefore have less wealth and earning power than their husbands.
There are two basic questions: who gets what right now (property division), and should either spouse share in the other’s future earnings (spousal support). The answers are far from simple. These issues are “the main concern in divorce negotiation in lawyers’ offices and the major time in litigation,” particularly since no-fault divorce eliminated most fights about whether a marriage would dissolve
Property Rights Of Husband And Wife
The common-law system of marital property had two defining features: coverture during marriage, and a title-based system of distribution at divorce. The principle of coverture suspended the wife’s legal identity during marriage. For all practical purposes, husbands controlled family property. Husbands were supposed to support their wives, but the doctrine of marital privacy usually made this duty all but unenforceable.3 However, once coverture was abolished by the Married Women’s Property Acts, married women could own property, and earn money, in their own right.
But what happened after a divorce? The common-law system revolved around a basic, if crude, principle: eat what you kill. In so-called separate property states, everything in the husband’s name went with him; everything in the wife’s name with her. Spouses, in other words, did not acquire ownership rights in one another’s property simply because they were married.
When combined with coverture, the title-based system was potentially devastating for wives. Although the system spoke of “separate property,” coverture prevented wives from holding or acquiring separate property during marriage. They had usually turned premarital property over to their husbands upon marriage, and any property acquired during marriage was at least initially in his name as well. Thus, when the time came to divide property, a court could award most or all of the property to the husband. Some courts, it seems, often split property between spouses—disguised as “alimony,” or simply by ignoring formal law. But without a system that clearly authorized redistributing property, wives could be left destitute.
Coverture disappeared, but the title-based system remained. The shift from an agricultural to a wage economy further stratified gender roles. In an industrial society, men, by and large, brought home the bacon; women worked at home. A woman who brought property into the marriage kept hold of it, but most women had no such property. South Carolina (once it allowed divorce at all) was unique in applying a “special equity” doctrine, which allowed courts to grant a wife a share of her husband’s property upon divorce if she could prove she had made financial or other contributions that helped her husband acquire it. This was an exception to the rule that ownership flowed from title, but did nothing to alter the basic problem— wives had little chance as an initial matter to hold or acquire title to property. Equitable distribution is the “modern” answer to the unfairness of the traditional system of allocating property at divorce. A judge, basically, can ignore legal title, and redistribute property in the name of fairness. Many states had “some form of equitable distribution as early as the 1930s.” But these early statutes were vague and left everything to judicial discretion. Fault was the dominant guiding principle in property division, as it was in alimony law.
With the spread of no-fault divorce in the 1970s, a broader approach to equitable distribution took hold in all separate property states. Equitable distribution statutes have survived any number of legal challenges; courts have uniformly ruled that states have the power to reallocate property between husband and wife upon dissolution of marriage. By the mid-1980s, the common-law system of allocating property at divorce based solely on title was finished.
During a divorce proceeding, property is retroactively labeled as “separate property” or “marital property,” depending on when and how it was acquired. “Marital property” is defined much like “community property”: property earned by either spouse during marriage. Separate property, more or less, is everything else. Once a couple’s property has been inventoried and classified, each piece is assigned a value and allocated according to the statutory guidelines.
Although either party to a marriage could initiate a divorce action, in reality the large majority of those seeking fault-based divorces were men. The reasons for this were probably many, but two, in particular, are often cited. First, men were less stigmatized for being divorced, and many quickly remarried anyway. Second, and perhaps more significant, more married men could “afford” to get divorced while most married women, with little earned income and often children to be cared for, did not have the luxury of being unhappy in their marriages and seeking fulfillment elsewhere. Of course, in extreme cases some women were compelled to leave a marriage, and some did. But in most cases it was the men who sought to be divorced, and often a suitable ground had to be fabricated.
Because of the nature of the fault system of divorce, a wife typically had substantial leverage over a husband seeking divorce because he often needed her cooperation to try to demonstrate the presence of fault grounds in order to obtain his divorce. Assuming that the wife was not guilty of a genuine fault ground, she would use her leverage to coerce a desirable financial settlement in the divorce proceeding. Child custody was rarely an issue since everyone assumed, in the usual case, that the mother would retain custody. At the same time, however, she also had a greater need for support for herself and the children. Thus the wife might offer to cooperate with a consent decree if her husband was willing to meet certain financial conditions. This meant that she would not contest that there were statutory grounds for the divorce, but rather consent that they were, in fact, present. In essence, the man would buy his wife’s agreement to the divorce by offering her an adequate economic package.
Development Of No-Fault Laws
In Utah today you can apply for a divorce under Utah no fault divorce law. Speak to an experienced West Jordan Utah divorce lawyer if you are seeking a non fault divorce.
In 1970, California became the first state in the country to adopt a no-fault-based ground for divorce. Since that time, virtually every other state has passed some form of no-fault legislation. Now commonly known as no-fault divorce, any married person seeking a divorce can file such a petition with or without the consent of a spouse. The petition alleges, in essence, that there has been an “irretrievable breakdown” of the marriage and that a divorce is sought on that basis. The traditional “fault” grounds may or may not be present, and when the case is heard both parties have an opportunity to complain of the misdeeds of the other.
The no-fault system has developed as a part of a significant divorce-law reform whose purpose was to end the charade of perjured testimony and falsified evidence that permitted consent decrees under the fault system. In practice, no-fault has had a significant negative economic impact on the women and children of divorce. When a husband who wants to end his marriage can simply file a petition alleging that the marriage is irretrievably damaged, he leaves his wife without a defense to such an allegation and without a bargaining tool to provide for herself and her children.
Although initially hailed as a rational and responsive measure to an issue that substantially affected the lives of many, no-fault divorce resulted in many unanticipated consequences, primarily for children and those women whose occupation was that of a homemaker. In fact, the fallout of no-fault divorce has been so disastrous for women and children that in many cases it has severely reduced or totally eliminated their ability to obtain the financial security customarily granted to them.
Another major consequence of the reform of the divorce laws has been that child custody practices have changed. In earlier days, child custody was almost automatically awarded to the mother unless she was deemed unfit. This favored stay-at-home mothers whose “occupation” was to raise their children. The mothers and children were generally assured of a support award, primarily because mothers were the primary caretakers, and maternal custody resulted in continuity of child care.
Today women who seek to stay at home and be supported by their ex-husbands face an uphill battle. First, economic circumstances often make it prohibitive, because many divorced fathers cannot even support themselves, let alone pay adequate child support and support two households without a second income. The consequence has been that mothers must return to the work force, at least on a part-time basis. Second, many men are now contesting the assumption that women should automatically become the sole custodians of children. Alternative arrangements, such as joint child custody, challenge the need for mothers to be full-time homemakers, even if their ex-husbands can afford to maintain them in that role.
A third factor in the difficulty women have in continuing as homemakers following divorce is their ex-husbands’ resentment. Women have almost always been awarded custody of their children under both the fault and no-fault based systems of divorce because the “fault” or “innocence” of a party still has a bearing on child custody. Courts make custody decisions on the basis of what is best for the children. Any allegations against either party of cruelty, intoxication, desertion, or any of the other legal grounds will likely affect the court’s award of child custody. In many cases, the wife is the “innocent” party, at least with respect to the legal grounds that courts recognize. Men perpetrate most of the physical and/or psychological abuse; men more often desert a family, etc. As a result, women have always had an advantage in retaining child custody, but more often today, men resent paying support without a fair opportunity to assert custodial rights.
No-Fault Divorce
The mechanics of no-fault law are that either spouse is entitled to assert that irreconcilable differences have caused an irretrievable breakdown of the marriage. Exactly what constitutes an irretrievable breakdown under a particular no-fault statute is unclear, but generally one or both parties will allege serious marital discord that makes it impossible to continue to function as husband and wife. In most states a no-fault divorce can be granted even if one party does not agree to it, or indeed, if only one party shows up at the hearing. The implication is that no fault is ascribed to either party, i.e., the breakdown of the marriage was not precipitated by cruelty on the part of either partner nor did other fault grounds exist. In practice, the designation of the grounds for a divorce is often negotiated by the parties. It is not uncommon, for example, for one partner to file for divorce based upon a fault grounds and ultimately reach a settlement of the financial issues and change the petition for divorce to a no-fault proceeding.
Under traditional fault rules, courts usually awarded alimony to an “innocent” spouse for life. Fault-based awards would generally be increased periodically to reflect the increased cost of living and, if necessary, would be modified if the original award was insufficient to support the dependents.
No-fault laws made divorce available largely without reference to spousal conduct and typically, though unofficially, upon the request of only one spouse. The no-fault movement, however, did not eliminate fault from divorce proceedings. While fault is no longer the exclusive path to divorce, many states simply added a no-fault ground to their existing fault-based laws, offering parties alternative grounds for divorce—fault or no-fault. Even among states that disallow fault as a ground for divorce, marital fault may affect the economic consequences of divorce. While the concept of marital fault thus did not disappear with the appearance of no-fault divorce, the wildly popular no-fault philosophy significantly undercut fault-based rationales for alimony.
Central to the no-fault movement was a vision of divorce as an opportunity for a fresh start and a clean break. Since no one was to blame for the marital breakup, no one should suffer unnecessarily. At least in principle, no-fault divorce thus aims to provide each spouse with an opportunity to begin life anew, as free as possible from any lingering marital entanglements—emotional or financial. With this goal came final abandonment, at least in principle, of any shreds of the old English view of a husband’s lifetime legal and moral responsibility for his wife.
At the heart of the no-fault reforms is the partnership notion that marriage is an association of individuals who may dissolve their relationship at will, compel the liquidation and distribution of their property, and upon winding up their affairs, leave the relationship with no further obligations to one another. This scheme initially held great appeal both for proponents of easy access to divorce and for women’s rights advocates whose equality rhetoric disavowed the need for male financial support. Unexpectedly, however, no-fault reforms unmasked the reality that many caregivers were “just a man away from poverty.”
Under no-fault law, the court’s greatest emphasis is on two factors: (1) the wife’s employability, and (2) the duration of the marriage. Temporary (“transitional” or “rehabilitative”) alimony has become much more common than permanent alimony. This type of award is frequently granted to wives (usually) who may have left the work force or a training program to assume the responsibilities of being a married woman and mother. With few or outdated skills, she is given a limited period of time and support to “rehabilitate” herself and re-enter the work force. Under the nofault system, modifications and increases in support are the exception.
Today transitional awards are common and are intended primarily to enable a dependent spouse to get back on her feet and obtain the education or training necessary to return her to the work place. In reality, that purpose is rarely accomplished, particularly in the relatively short period of time that is allocated.
Under the no-fault divorce laws, the average awards are smaller. In part, this may be the result of the altered bargaining position of women in no-fault divorce situations, but it is also likely that many judges presume that many women will, in fact, secure suitable employment after the divorce; the awards are set accordingly. Here again, in reality more often than not the courts underestimate the difficulty that a homemaker faces in finding a job that will make her self-sufficient.
In many instances, alimony is virtually unheard of for women who are divorced in the early years of marriage (i.e., short-term marriages) under the current no-fault laws. Unless a woman has children at home and her husband is willing and able to maintain her as a primary caretaker, even women with children (except, perhaps, very young ones) will usually be expected to be self-supporting within a short period of time. Professional women in particular are rarely awarded alimony, even if they choose to be at home with the children and their husbands can afford to support them. The consequence is that motherhood is no longer a secure occupation, even in a household that can afford it, and stay-at home mothers have no guarantee that they will continue to be supported in that role after a divorce.
Women and children of divorce suffer economically for a number of intangible reasons as well. In order for a woman to get a decent financial settlement, she has to have substantial knowledge of the family’s financial picture. A woman who is ignorant about her husband’s assets, income, investments, and expenses risks being taken advantage of by self-interested husbands and unscrupulous divorce lawyers. At the same time, many women are unrealistic about their own needs, particularly if they have not participated in paying bills and balancing the accounts. Their own lawyers, who should assist them and provide guidance based on experience with divorce situations, do not always take the time and pay attention to a particular client’s individual circumstances.
Another “intangible” factor is that people in divorce are too often so emotionally shattered that they simply do not have the wherewithal to pursue the financial aspects of the divorce with the necessary vigor to protect themselves and their children. More often than not, it is the women who are in this position. Sometimes, particularly in recent years, a husband will contest child custody, primarily to coerce a better financial settlement. In other cases women do not understand the economic consequences of divorce until it is too late. And in still other cases, one party or the other (but mostly the woman) is willing to accept a smaller than adequate award simply to avoid the fight, to avoid going to court, to maintain a better relationship with the soon-to-be ex-spouse, or to assuage a guilty conscience resulting from walking away from a marriage and family. Too often it is the children who pay the price for the parent’s right to exit peacefully.
Finally, as already mentioned, in an increasing number of cases there is simply not enough income to go around and support two households. Even when previously unemployed wives return to work, once child care costs are factored in, the net result is little more money than if they weren’t working. In a time of high unemployment, overburdened social programs, frequent divorces, and an alarming federal deficit, it is of little surprise that there is a scurry to find solutions.
Child support orders involve both legally establishing a parent as responsible for the support of his child and setting the award amount.
In some divorces, the responsibility of emotionally supporting the children throughout this traumatic time falls on one parent. This can be one of the most difficult parts of the divorce. Children soon learn that the treatment they receive from each parent will be different, as no two parents are exactly alike. If only one parent is approaching the discussions and issues surrounding the divorce in an appropriate manner, there’s not a lot you can do about it.
Extreme cases, where one parent is causing the children psychological or emotional agony and pain, may warrant legal intervention.
A parent can file for a restraining order, ask the court to reduce the time spent with that parent, or request supervised visitation. Sometimes parents may need to resort to these methods in order to prevent further damage. But unless the situation is severe, it’s best for parents to allow children ample access to both of them, even if one parent is not handling the divorce in what the other believes is a gentle and sensitive manner with the children. Children quickly recognize which parent is helping to ease their pain and which parent is contributing to it. They also learn different things from each parent; perhaps the child learns resiliency and responsibility from the way dad deals with the divorce, and selfishness and anger from mom’s reactions and behaviors. Experiencing this range of (not always so nice) responses is unfortunate, but it is also a minicourse on the real world. If at least one person is parenting the children in a healthy manner, this person can help them develop ways to cope with the poor responses of the other parent.
Naturally you want to protect your children from any negativity or emotional pain. However, this is impossible. Sad situations and unexpected traumatic events can occur at any time. The old adage “Life is unfair” holds undeniably true. You cannot fully protect children from the pain of life, and the pain of divorce is no easier to protect against, especially when one parent is not particularly invested in doing so, even for the kids’ sake.
Although one parent cannot control his or her ex-spouse’s actions (or lack thereof), he or she can work daily to ensure that the children’s experiences with the ex-spouse will be happy and healthy ones. It’s important to channel any frustrations in a healthy way. You can turn those frustrations into your own commitment to work patiently and diligently through your divorce with your children’s best interests in mind and at heart.
A serious mistake divorcing parents frequently make is to assume things about the other parent. For instance, let’s take a dad who is frustrated with a mom who has given the children inappropriate information about an affair that led up to their divorce. The dad is angry and shocked that the mother would use such poor judgment in telling the children the details of the affair. The father is making the (wrong) assumption that the mother ever had the ability to gauge good judgment in the first place.
Perhaps if the father looked back in time, he might recall that the mother was the one buying beer for her teenager long before he was of legal drinking age, and then letting her nine-year-old watch R-rated movies. The father’s error is in assuming the mother knows what good judgment is and then basing his expectations of her on this assumption. Do not have expectations now for your ex-spouse that he or she was unable to meet before the initiation of your divorce. It’s better to work on addressing any problem areas anew with your ex-spouse than to build on resentment from age-old trouble spots.
Sometimes a divorcing parent assumes the other parent doesn’t care about the children, based on that parent’s choice of action or inaction. But often, parents make poor choices not because they don’t care about their children but because they are caught up in their own emotional place. These parents often cannot see past this place to consider the best interests of their children.
Divorce has an inevitable fallout. It causes profound disruption—both internally and externally in almost all areas of life. With divorce come pervasive losses, an overload of major and minor life changes, a seemingly endless array of unfamiliar practical problems, and intense and wildly fluctuating emotions. Divorce demands the restructuring of relationships with former partners, with friends, and even with children, as a single parent. It necessitates the forging of a new identity and the building of a new lifestyle, and it motivates self-exploration and reappraisal. Divorce is synonymous with disruption, change, readjustment, and reorganization—and consequently with stress. Stress is generally worse for spouses who are left, particularly if they are unprepared for separation. Believing they have lost control over their lives, they often feel as if they are pawns at the mercy of their former partners. However, divorce is inevitably stressful for both spouses. With the exception of the death of a spouse, divorce has been identified as the most broadly disruptive and stressful event that people face in our society. There is convincing evidence that the stress caused by separation and divorce can have a number of negative repercussions for you. Ineffective coping will complicate your life even further. In fact, how you cope with your stress may be more important to your morale and functioning than the severity of your stress.
To many people, coping with stress means taking tranquilizers, drinking, smoking, or abusing other drugs. However, these methods will create further stress on your body. Fortunately, other stress-reducing methods have been found that will not further complicate your life and are more effective, too.
This causes physiological changes in your body. Therefore, some of the most effective strategies to combat it are physiological in nature. Don’t minimize their importance or underestimate what they can do for you. They are well worth learning and incorporating into your life. Not only will they be helpful now; they will help you through any stressful period in the future.
Sadness is a normal, expected, and healthy emotion in divorce. Even when a relationship has seriously deteriorated in recent years, there is plenty to be sad about at its end. At one time the relationship had been good, the partner had been cherished, and hopeful plans had been made for a lifetime together. These past good memories are mixed with the recent bad ones, and usually there is some wistfulness about what was and what might have been. Besides this, a past and a whole way of life has been left behind, as well as a good chunk of each partner’s identity. A home, possessions, continuous contact with children, and other relationships may have been left behind as well. For many divorcing men and women, the sadness is overwhelming. They feel out of control. They can’t eat, sleep, or concentrate. They feel drained and helpless and fear they will never stop crying. The worst of the pain is likely to peak during the first several months. It is likely to have leveled off by the end of the first year. Some people shut out their feelings of sadness and loss. “Why should I be sad? I’m happy to be out of a bad marriage.” They dismiss their losses as insignificant, bury their sorrow, and assume an air of nonchalance. These are folks who are likely to have problems completing their emotional divorce. When any marriage ends, there are inevitable losses. Before the door can be completely closed on the marriage, these losses need to be acknowledged and good-byes said to them. The death of a relationship needs to be mourned just as any death does. Doing so does not mean you have to be sad the marriage is over. It simply helps you close the door permanently and get on with your life.
For many divorcing men and women, one of the most incomprehensible and frustrating feelings they experience is the continued pull toward an ex-spouse. Ex-partners think and wonder about one another and seek news about the other’s activities. Some make excuses to call or stop by, some actively miss their former mates, some even pine for them. It is not only those who are left who experience this pull. Lawyers experience it, too, and many find it incomprehensible.
Just what is attachment? It is a sort of emotional bonding and a feeling of connectedness, a feeling of ease in the other’s presence and restlessness when the other is inaccessible. Attachment can paralyze a spouse with fear when he or she even thinks about leaving the unhappy marriage. It can cause a spouse to fight any and all settlement agreements in order to delay the final divorce. It can prevent a spouse from taking steps toward starting a new life.
Attachment persists far longer than does love, and it persists despite conflict and antagonism. Proximity alone appears to be enough to sustain it. It seems to fade only gradually, without contact and sometimes with the help of a new love.
Given the widespread feelings of attachment, it is not surprising that divorcing partners so often have intensely ambivalent feelings about one another. They vacillate between longing and anger, between love and hate. What does it all mean? they wonder. Are they doing the right thing by divorcing? Some go through periods of dating each other again. Some resume sexual relations.
After marriages end, divorcing men and women usually have an urgent need to think and talk about their marriages. They go through the same events over and over again: what each partner said and did; what triggered each significant event and fight; what each partner could have done differently; where it may have gone wrong; who was to blame. Often it becomes such a consuming obsession that people question their sanity.
You are no doubt concerned about how your divorce may affect your children. To give you a straight answer, parental divorce is very painful to children, and most do experience problems for a while. Does divorce cause long-term problems? A significant minority of children do develop long-term emotional, behavioral, social, or academic problems, even some who appeared to be doing well during the crisis itself. The majority, however, are not troubled with lasting problems, and some even develop greater psychological strength because of the divorce.
To children, divorce does not mean the second chance that it so often means to one or both parents. Rather, it means the loss of their family— the entity that provides them with support, stability, security, and continuity in an often unpredictable world. Children assume that their family is a given and that their parents are permanent. After all, their family and parents are what provide for their needs. In their eyes, their family is intricately woven with survival.
Many children feel rejected, perceiving that the parent is leaving them as well as the spouse. The majority of children are intensely sad and feel a deep sense of loss—of their family, their security, even their daily routines and family traditions. Even most of those who never had a close relationship with their departing parent now long for that parent. Many children have little control over their tears. Anger is a fairly common reaction among children. Many feel betrayed by the very people they have trusted to protect and care for them. They feel no one is considering their needs, and they feel powerless to alter the situation that is completely disrupting their worlds. Some angry children hide their anger, fearing it will further upset or alienate their parents. Others have explosive outbursts. Some act out their anger in temper tantrums, noncompliance, aggressiveness, destructiveness, rebelliousness, or sexual promiscuity. From children’s perspectives, the one positive aspect of divorce is that it may put an end to the fighting and tension with which they have been living. But studies find that conflict between parents usually escalates after separation, as hurt and embittered parents must work out details about parenting arrangements, support, and property, and as many begin to date. Distressed and bewildered children hear their mothers called whores, drunken bitches, and rotten mothers, and their fathers called liars, bastards, and terrible fathers.
When parents separate, the world as their children know it begins to change and often ends. Daily life is transformed. Children lose daily contact with one parent, and the great majority long for that parent, whether or not the relationship had been close. Often early visits are infrequent and follow no predictable schedule on which children can depend, increasing their fears of abandonment. Will this visit be the last?
At the same time, many youngsters also experience a sharp drop in contact with busy and overwhelmed custody-retaining parents, leaving children feeling isolated and intensely lonely at the very time they need reassurance and support the most. Many children find themselves for the first time spending long hours in day care or alone after school. Even some rather young children must get themselves off to school and prepare their own meals.
Money also becomes tighter, now that two homes must be maintained, and often becomes a source of conflict between parents. Anxiety over money is easily transmitted to children, whose vigilance alerts them to each new problem in their lives. Things once taken for granted can no longer be afforded. What will the future hold? What plans will no longer be possible? It is not uncommon for families to move and for children to be forced to find a way to cope with losing their home, school, and friends at a time when their lives are already in turmoil.
Each of these changes requires children to adapt anew at a time when many of them are already taxed near the limits of their capacities. However, the worst changes from children’s perspectives are the dramatic changes in their mothers and fathers and in their relationships with them.
Will My Old Parents Please Return?
For many children, the parents they come to know after separation do not seem to be the same people they have known all their lives. Many parents’ behavior becomes unfamiliar and unpredictable. Bewildered youngsters commonly observe rage, tirades, wide mood swings, lethargy, new pursuits, changed appearances, increased drinking and smoking, and drug use. Some become painfully aware for the first time of their parents’ sexuality, as a number of new “friends” share their parents’ beds. Some keep a vigilant watch on a parent who they fear may commit suicide.
The rapid and dramatic changes in parents, occurring at the same time that children’s lives are in turmoil, are bewildering and frightening to children—younger and older alike. Ordinarily when children are in crisis, they can rely on the security, stability, and support offered by their families—these provide a protective cushion that softens the impact of the crisis. This is what happened with the British children who stayed with their parents throughout the wartime bombings. The children looked to that “reserve account” of theirs—their parents—to help them through the turmoil so they could emerge unscathed.
During the stressful postseparation period, however, a large percentage of parents are so overwhelmed by their own stress, emotions, and new demands for rebuilding their lives that either they do not recognize their children’s neediness and distress or they simply do not have the emotional resources to tend to them.
The distinction between an unhappy marriage and one which has irretrievably broken down can only be made by those who have already divorced. Ironically, the fact of divorce is not proof that the marriage did irretrievably break down. It is not unknown for unhappily married couples to divorce because their unhappiness is unresolved although the marriage relationship may not have broken down. Conversely, many husbands and wives stay together for financial convenience or because they consider it to be in the best interests of the children even though their emotional relationship has ceased to be of any significance.
Every married individual, or couple if they are able to discuss their problems together, has to consider whether a relationship has ended. In recent years the relevance of their financial condition has usually been at the forefront of their problems. It is essential they should consider whether difficult financial circumstances exacerbate other problems. If there is no prospect of the financial situation being improved they have to consider how divorce will resolve it.
For instance, if a warring couple are in arrears with mortgage payments on their home, a voluntary sale is more likely to produce a better offer than a forced sale by the building society, but it is unlikely that two homes can be purchased with the proceeds. Perhaps debt counselling in this situation should precede marriage counselling.
Matrimonial counselling should enable a couple to decide whether they can bear to live together in an attempt to recreate their relationship. Often there is no question of joint consultation: if one partner has decided to leave, and is convinced that the marriage is at an end, he or she will not necessarily accept the need for counselling. The partner who remains will be in urgent need of counselling in order to learn to accept the situation or to learn how to persist in trying to save the marriage. He or she may however be forced into proceedings to prevent the other from taking unwise financial decisions such as emptying a bank account.
Legal advice should be obtained at an early stage before any final decisions are taken. Divorce is, after all, a legal process. No responsible solicitor or other adviser will recommend that divorce be undertaken lightly because its consequences, unless they can be agreed, may be unforeseeable. Too frequently, couples separate and make separate arrangements without finding out whether the agreed solution is feasible. Of course if a marriage between financially independent partners ends in circumstances where there are no dependent children it may be that that neither wishes to incur the costs of legal advice; and the only significant asset may be a home which is to be sold and its proceeds equally divided. Many eventualities can be anticipated which should be considered and prepared for in advance. It would be unfortunate if, having divorced on an agreed basis, the husband or wife were later to lose work or earning capacity and find that there was no possibility of claiming maintenance from the other. Equally, if a claim for maintenance was made in a petition and was not dismissed later by an agreed order, the later inheritance of money by the other party could result in a financial claim being pursued.
There are limits to what divorce and financial proceedings can achieve. One purpose of early legal advice is to obtain information as to the likely range of settlement which, in each case, it may be possible to expect. If a client is prepared to discuss matters with his or her spouse in an attempt to resolve matters it may be useful to refer the couple to mediation. Mediation is a process designed to help couples resolve their disputes in relation to children and money. There are many different models, some involving one mediator and others two. It can take place before or during the divorce and financial proceedings. It may result in no agreement at all or agreement on some or all issues. Each party should always obtain independent legal advice from an experienced West Jordan Utah divorce lawyer on the proposed terms of settlement.
Statutes concerned with matrimonial law, like court decisions on how they apply to different cases, are the center of a web of legislation on other subjects—housing, insolvency, company law and property law—which, depending on the circumstances, can have a decisive effect on the outcome of matrimonial disputes. Utah divorce law is complex. Always seek the assistance of an experienced West Jordan Utah divorce lawyer.
West Jordan Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in Utah, whether that includes divorce, divorce modification, child support, child support modification, child custody, child custody modification, change in terms, or any other type of family law, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088United States
Telephone: (801) 676-5506
If you are a business that provides goods or services, chances are you invoice your customers in order to receive payment. An invoice is simply a bill that sets out the amount to be paid, what is being paid for, and the terms of payment. Although most businesses don’t realize it, by giving customers an invoice, what businesses are really doing is extending credit to their customers.
More specifically, the law considers this to be an unsecured loan. Unsecured loans are loans that are not secured by collateral. Suing a customer to recover on an unsecured loan won’t work if the customer simply doesn’t have the money because there’s nothing to recover against.
When extending credit to a new customer, since that is what you are really doing by invoicing them, it pays to check on their credit just like you would for any loan. Business credit checks are more complex than personal credit checks and should consider information such as:
• How much credit is the customer seeking?
• What other businesses does the customer do business on credit with?
• How has the customer fared in difficult economic times?
• What do other businesses say about doing business with the customer?
• What kind of property does the customer own in case the customer goes into bankruptcy?
When evaluating a customer’s potential credit risk, there are a lot of factors to take into consideration. One piece of advice is to look at the long term and patterns, not the short term and one or two isolated instances. Another piece of advice is to look at yourself and evaluate how much risk you can afford to take. Here are some of the basic considerations to keep in mind when evaluating a customer’s credit risk.
• Has the customer had a long-term history of paying invoices on time: don’t let isolated instances affect your judgment, businesses regularly have brief periods of financial difficulty such as a one-time cash flow problem. The key is to determine whether the business genuinely tries to pay its bills on time and can be expected to “make good” even if it ends up paying late.
• How big is the customer: how much benefit you expect to get from a customer relationship should influence how much risk you’re willing to take on.
• How much risk can you afford to take: if you are on solid financial ground and can afford to be more aggressive, then you may be more willing to take on a riskier customer.
• How long do you expect the relationship to last: if a customer seems like they might be a life-long customer, then you should consider taking on more risk. On the other hand, if the customer will only be around for a short period of time, then you should be less tolerant to risk posed by a customer’s poor credit.
Creating the Invoice
If you’ve decided that a customer is creditworthy, then it’s time to create the actual invoice. There’s nothing complex about an invoice, but the key to invoicing correctly is to be extremely clear in your description of the products and/or services rendered.
Don’t use general statements about the good or service being provided, make the description detailed and accurate. Clearly state in bolded or offset lettering the time period the customer has to make a payment. Typical payment windows are 30, 60 and 90 days. Make it similarly clear how payment is to be made and to whom. Leave out no detail that a customer can use as an excuse for delay in payment.
Finally, provide contact information for the customer to call if he or she will be unable to make the payment as requested.
When you’re hit by the proverbial train, you want your assets to go where you want them to go when you’ve gone to wherever you hope to go. Since it’s difficult to take your money with you on that last trip, you want to be sure that your assets go to the intended beneficiaries. You also may want to minimize the amount of your assets that stick to the hands of the tax collectors and others. Speak to an experienced Magna Utah probate lawyer to know your options.
One of the two sets of issues involved in estate planning centers on the laws that control the disposition or allocation of the property of the recently deceased, and the other deals with the taxes associated with the transfer of the property from individuals and their estates to relatives and friends. If you try to minimize taxes, you may lose control of your assets. If you try to retain control, you will forgo the opportunity to minimize taxes. A difficult choice.
When you die, the law of Utah, the state where you live—your legal residence—provides that ownership of all your assets is transferred to your estate. This transfer is automatic; there is nothing you can do about it (except to give some of your assets away prior to death so that the estate will be smaller). Your estate is a fictitious person, more or less like a corporation. The next step, established by law, is that someone—the “executor” of the estate—is required by law to write the checks to pay your debts and taxes and to transfer the legal titles to the assets that are now in your estate to the individuals and charities that you have designated.
The transfer of the assets will follow the terms of your will—if you have one. If you don’t have a will, then the transfer will follow the procedures in the state of Utah where you had your legal domicile.
It is important that you speak to an experienced Magna Utah probate lawyer. The lawyer will advise you on what you need to do to ensure that your assets pass on the persons whom you want your assets to pass to. You can have an estate planning solution in place to ensure this or you could let the State of Utah decide which of your relatives gets a share of your estate. When you have an estate planning solution in place, you can give away your estate to your close friend or someone who is not related to you. But the State of Utah has no idea about which of your relatives are close to you. Utah also does not care about letting your close friend or someone else get a share in your estate. Your estate in the absence of an estate planning device will be distributed according to Utah intestate laws.
“Probate” is the name of this transfer process, which means attesting to the authenticity of your will. The probate process starts when someone—a relative, a trusted friend, a creditor—calls the judge of the probate court in the county where you live with the information that you have died. The probate judge is supposed to protect your creditors and heirs and ensure that the instructions in your will about the disposition of your assets are followed. Probate is a big business. About $500 billion in assets goes through the probate process each year—there are 15,000 probate judges in the United States. Each county has a probate judge, although in sparsely populated areas the judge may work part time. An experienced Magna probate lawyer is your best source of information about the probate process in Utah.
If you don’t have a will, the distribution of the assets will follow the practices of the State of Utah. Generally, all of the assets go to the surviving spouse. The judge of the probate court appoints an administrator to manage the distribution of assets, much as an executor would if you had had a will. The administrator might be a political chum of the judge or a not-so-distant relative (the judge’s relative, not yours)—nice work if you can get it.
Wills and trusts are all about control of assets after death. Consult with an experienced Magna Utah probate lawyer if you want to make a will or a trust. A trust owns assets, receives income on these assets, and pays taxes on the income. Trusts are “ownership vehicles”—fictitious individuals with legal identities. Trusts own assets for the benefit of real individuals.
Trusts differ in their objectives. Some trusts facilitate the management of assets and the transfer of the ownership of assets. These trusts reduce the costs of probate. Other trusts reduce the bite of estate taxes and of capital gains taxes on appreciated assets. Still others extend your control of what had been your assets after you die.
or irrevocable. Remember that after you transfer assets to the trust, the trust owns these assets—you no longer own the assets. Nevertheless, the assets owned by the trust remain in the estate when the estate tax liability is determined. The grantor of a revocable trust can change his or her mind and essentially undo the establishment of the trust by asking that the ownership of the assets be transferred from the trust back to the grantor.
Do not use a make it yourself will kit that you can buy online. Remember there are certain requirements for a valid will. If your will is not valid, it is you but your near and dear ones who will suffer. Your will becomes operative only on your death and not before that. If you have already made a will by yourself, have it reviewed by an experienced Magna Utah probate lawyer.
A will is advantageous for several reasons. If you die without a will, the cost of transferring assets is likely to be higher than if you had had a will and named an executor, especially if the executor were a member of your family or a trusted friend. (Their fees and charges and expenses are likely to be lower than those of the lawyers appointed by the probate judge.) If you have a will, there is smaller likelihood of significant bickering among your heirs—and the associated costs of lawyers to straighten out the arguments.
The “intervivos” or living trust is usually established to facilitate the management and control of assets of an elderly person. For example, Jack Benny Sr. establishes a living trust and transfers the ownership of some or all of his assets—bonds and stocks, his apartment or home, a checking account—to the Jack Benny Sr. Living Trust. Jack Benny Jr. and Jack Benny Sr. are both trustees; each has the ability to write checks on the trust’s accounts. Eventually Jack Jr. will begin to write checks on this account to pay Jack Sr.’s bills.
When Jack Sr. dies, the assets owned by this trust are not subject to probate, but they are included in Jack Sr.’s estate to determine whether a tax must be paid. Jack Sr.’s will indicates how the assets in the trust should be distributed. The trust is dissolved when it no longer owns any assets.
to reduce the payment of capital gains tax. You may have large unrealized capital gains on stocks and other assets. You may own some rental properties and your “tax cost” or “basis” for these properties may be substantially below current market values, perhaps because of the price appreciation or because of annual depreciation. The market value of your home may be substantially higher than the purchase price.
If you sell one of these assets, you will realize a capital gain, and you will probably have to pay the capital gains tax. If you own these assets when you die, then the cost basis of these assets is “stepped up,” and in effect the tax on the capital gain will be avoided.
Rather than sell these assets, you give them to an established charity—your favorite college, university, hospital, or religious institution. The charity sells these assets and uses the proceeds to buy bonds or stocks or some other income-producing assets that will be owned by a trust the charity has established for your benefit. You will receive annual income from this trust. When you (and your designated beneficiary, if you have established one in the trust) die, the ownership of the assets will be transferred from the trust to the charity, and the trust will be dissolved. Before you die, the charity manages the assets owned by the trust for your benefit. The income you receive from the trust is taxable as ordinary income.
Seek the assistance of an experienced probate lawyer
Just because a will has to go through probate in Utah, it does not mean that a will is not the best estate planning solution. When it comes to estate planning, there is no one size fits all solution. Each individual is unique. A will may work for some while it may not work for others. It all comes down to your individual circumstances. An experienced Magna Utah probate lawyer will review your personal circumstances and advise you on your best option. Remember before drafting your will, the lawyer will consider the issue of probate. Never use a fill in the blanks form or use a will made by someone else. It may not work for you. Most valid will go through probate without much trouble. That’s why you should get you will made by an experienced Magna Utah probate lawyer. The lawyer will help get the will probated.
Magna Utah Probate Lawyer Free Consultation
When you need help with a will, trust, power of attorney, health care directive, probate or estate administration, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088United States
Telephone: (801) 676-5506
