Thursday, 19 July 2018

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