Saturday, 31 March 2018

Legal Representation is Important to Winning Child Custody

Given that many Salt Lake City, Utah, residents have limited knowledge of and experience in family law, individuals facing the prospect of divorce are always advised to seek legal counsel. And in cases involving child custody arrangements it is especially important for parents to learn their legal rights and options to ensure that the agreement is fair and appropriate. This is why you should always talk to your divorce lawyer when situations come up. Because there is evidence that the results of a child custody dispute can depend greatly on whether or not both parties have legal representation, many attorneys and rights advocates are working to ensure that more people have access to counsel in civil cases.

Everything from restraining orders to child support payments are addressed in the family court system and thousands of cases are handled by the courts each year. In 2006, the American Bar Association took efforts to guarantee that legal representation was available to low income individuals in civil cases, recognizing that the outcome of such cases often depends on whether or not both parties receive legal support. According to one study, individuals that chose to represent themselves in child custody disputes were less likely to win, and joint custody rulings were less likely to be granted in cases where only one party had representation.

In cases where an individual does represent themselves, the judge may attempt to guide the person through the legal process, but cannot go so far as to provide biased assistance. Using California has an example, having legal representation on both sides of family court cases only occurs around 25 percent of the time, leaving many at a disadvantage. That is why state legislators and advocates are pushing to create a system where qualifying individuals can be paired with attorneys to handle their civil cases.

Legal Representation is Important to Winning Child Custody

EXAMINING DIVORCE STATISTICS IN UTAH

According to the Utah Department of health, there were 10,146 divorces across the state in 2010. During the same year, the divorce rate in the state was 3.7 for every 1,000 people. In 2009, Utah’s divorce rate was 3.6 per 1,000 people, compared to the U.S. divorce rate of 3.4. Over the course of 2010, more than 3,900 marriages were dissolved in Salt Lake County alone. In Salt Lake City, and throughout Utah, divorce is very stressful for many couples and it is critical for people who are going through this to focus on avoiding complications.

On the Centers for Disease Control and Prevention’s site, additional statistics regarding divorce in Utah and across the country are provided. In 2014 and 2013, the divorce rate in Utah was 3.1 per 1,000 population. 2012 saw a divorce rate of 3.3, while the state’s divorce rate in 2011 was 3.7. In previous years, the divorce rate was significantly higher (5.1 in 1990). However, divorce is still very prevalent in Utah and across the entire country. In Wyoming, for example, the rate of divorce in 2014 was 4.6 for every 1,000 people.

The number of divorces which occur will change from year to year, but divorce remains a highly emotional and stressful issue for many people. As a result, it is essential for couples to understand their options and outline the smartest course of action. For some, this may include turning to a mediator, while others may want to assess the financial ramifications of splitting up with their spouse. Regardless of the individual details pertaining to a case, thoroughly preparing for divorce is crucial and can prevent complications from arising.

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 fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Common Law Marriage

Probably any family law attorney or divorce lawyer in Utah will tell you: there is no such thing as a common law marriage in Utah. There is a such a thing as a marriage like relationship in Utah. You have to go to court to get this done. You need evidence that you have held yourselves out as a married couple. Call us to talk about how it’s done.

Common Law Marriage

Unsealed Court Records Reveal Insights

The high-profile case of death-row inmate Ron Lafferty just got cracked wide open, with records and court documents from the trial now available to the public thanks to a federal judge’s ruling.  The article in the Deseret News explains why case details, professional opinions and psychiatric evaluations were originally sealed and why opening these records to the public helps to keep our judicial system transparent.

Last fall, several local media filed a petition to unseal the records that would open dozens of documents to the public and lawyers in Utah alike. The federal judge in the current case agreed to unseal the records because he believes that Lafferty is indeed of sound mind and does not suffer from a mental illness “that impedes his ability to communicate and help his lawyers in Utah prepare his case. ” Many of the documents contain medical and psychiatric opinions about the condemned criminal’s mental health and legal arguments over whether he was fit to stand trial and competent to move ahead with a federal review of his case. Sixty-nine documents and 17 formerly secret docket entries have been sprung wide for all to see.

Salt Lake City media attorneys argue that access to the records and documents  promotes accountability and confidence in the judicial process – ideals that are integral to a working justice system in the US, especially in cases such as Lafferty’s, where the penalty is death. With such high stakes, it is imperative that these decisions and rulings not be held in a vacuum of closed courtrooms and secret meetings between privileged judges and lawyers in Utah.

The petition to open the records was filed last October on behalf of the Deseret News, KSL-TV, the Salt Lake Tribune and the Utah Headliners chapter of the Society of Professional Journalists. The records had been sealed in 2009 at Lafferty’s attorneys’ request when questions about their client’s mental competency began. The attorneys argued that they shouldn’t be forced to disclosed attorney-client information and that Lafferty’s privacy concerning his mental health should be respected. At the time, the judge agreed to seal the records. Salt Lake City media attorney Jeff Hunt didn’t necessarily agree with the move, noting that closing the court records as a default position runs contrary to the First Amendment, which assumes that court proceedings will be open to the public. Lawyers in Utah may claim attorney-client privilege, but the proceedings brought out in a courtroom don’t necessary fall under that designation.  In a case where the defendant’s life is at stake, Hunt saw opening the records as a way to promote responsible decision making. He also said that it would hold the judicial system accountable for its proceedings – a very American ideal, indeed.

Lawyers in Utah look on as this case and its records can now be unpacked by the media, your next door neighbor, and anyone else who wants to weigh in – and most everyone wants to. The case itself is one of extreme notoriety. Claiming that they were directed by God, Lafferty and his brother have been found to have been responsible for the deaths of their sister-in-law and her fifteen-month old daughter in 1984 by slashing their throats. Having exhausted his appeals in state court, Lafferty and his attorneys will prepare for a federal review.

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 fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Friday, 30 March 2018

FLP vs LLC

At Ascent Law LLC, we know that you work your entire life to protect what is yours and not allow it to be destroyed by some predator, so we want you to understand your options. Compared to the FLP, the LLC is the relative newcomer to the field. LLC’s began in the 1970’s in Utah. They create a corporate structure, and give the benefits of a corporation without the downside of double taxation. Prior to the LLC this was accomplished by using an S-Corporation; however, S-Corps have significant restrictions and are therefore difficult to use. With the introduction of the LLC came a true hybrid with essentially all of the benefits of the Corporation and none of the S-Corp restrictions or double taxation downside.

FLP vs LLC

The LLC has the exact same tax options as the FLP. The LLC does not use the term shareholders, but rather “members.” In the standard LLC structure there is only one class of member. This was meant to mirror the corporate stock ownership and creates a majority rule type of management. While this can be changed through careful drafting, it is this distinction that becomes important when comparing it to the Limited Partnership for use in Asset Protection Planning.

Asset Protection and Business Planning

There is much confusion today about which structure is most desirable when it comes to the area of Asset Protection. While both are useful, their differences should not be overlooked. In particular, there is a distinct advantage to the Limited Partnership structure when it comes to designing a truly effective Asset Protection Plan. For example under the laws of Utah, a model state and considered one of the very best jurisdictions for the purpose of Asset Protection, there are the following critical differences between an FLP and an LLC:

  1. An FLP requires “unanimous consent” for dissolution as opposed to a majority in interest (51%) for an LLC. This restriction is advantageous in both a creditor situation and a discount valuation scenario.
  2. It is much easier to obtain “Administrative Dissolution” in an LLC. This is a significant disadvantage with respect to Asset Protection. Among the grounds for administrative dissolution in an LLC are:
    1. Failure to make required amendments to the articles of organization,
    2. Failure to make required publication,
    3. No statutory agent or registered office for a period of 60 days and
    4. Failure to notify the corporation commission of a change in statutory agent or registered office within 60 days.

While these seem minor, they are often overlooked and may be used by a judge to justify dissolving an LLC. There is no corresponding statute for an FLP, which is much more likely to remain intact in a creditor crisis.

  1. A majority of LLC members can require a distribution in an LLC.
  2. There is no right to distribution in an FLP until winding up.
  3. An FLP can allocate income, gain, loss, deductions or credit items in any manner it deems appropriate. This is not the case for an LLC.

For all of the above reasons, when it comes to structuring the most effective Asset Protection Plan possible, the use of an FLP as the primary consolidating entity is preferable. This is particularly true if the planning combines the use of an Asset Protection Trust. Since the APT would typically hold a majority of the FLP interest, using a Limited Partnership share is ideal as opposed to attempting to draft around the LLC rules with a membership interest.

The LLC is, nevertheless, extremely useful. Most often an LLC will be used to hold and shield individual “risky” assets such as real estate, boats, airplanes, and other potentially liability generating assets. These may be held by a multi or single member LLC, which in turn may be held by the master FLP. The clients may directly hold the General Partnership interest of the FLP with the APT serving as the majority Limited Partner. The net effect is that the majority of the client’s assets would be ultimately held in the FLP with the wrap around protection of the APT.

This structure is the ultimate in ease of use, protection and lawsuit deterrence, while maintaining the level of comfort and control most clients require. The mere existence of this level of planning is often enough of a deterrent to dissuaded potential plaintiffs’ and their aggressive attorneys.

Free Initial Consultation with a Business and Asset Protection Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Thursday, 29 March 2018

How Far Back Can Child Support Go?

As a Child Support Lawyer, I’ve been asked before – How far back can I get child support? It’s a good and a complicated question.

  • How far back can child support go in Utah?
  • I didn’t even know about this baby, and now, 10 years later she is going for child support all the way back to birth.  Can she do that?
  • In Utah, is there a certain age where, if you haven’t already applied for child support, you can’t get back support?
  • Is there a statute of limitations on child support in Utah?

The key to answering all of these questions is PATERNITY.  Whether or not paternity has been established is the primary factor in determining how far back child support can go in Utah.  The secondary factor in determining how far back child support will go is whether you request child support through the child support enforcement agency or file a Complaint (or Motion) in court.

An action to determine the existence or nonexistence of the father and child relationship (paternity, or parentage) may not be brought later that five years after the child reaches the age of 18. That means that in Utah paternity can be established up until the age of 23.

How Far Back Can Child Support Go

What does paternity have to do with back (retroactive) child support?  In Utah, Paternity MUST be established before a court or a child support enforcement agency can make a child support order.  In addition, in Utah, a child support order can ONLY BE retroactive if made in conjunction with a determination of paternity.

 

  1.  Who can file an action to establish paternity in Utah?

The following people can bring an action for paternity:

  • the child or the child’s personal representative
  • the child’s mother or her personal representative
  • a man alleged or alleging himself to be the child’s father or his personal representative
  • the child support enforcement agency of the county in which the child resides IF the child’s mother, father, or alleged father is a recipient of public assistance or of services under Title IV-D of the “Social Security Act,” 88 Stat. 2351 (1975), 42 U.S.C.A. 651, as amended.  Public assistance, as used in this statute, means:
  • Medicaid
  • Utah works first
  • Disability financial assistance
  1.  Once paternity is established, how does a court decide whether or not to order retroactive child support?  

A court should not order retroactive child support if both of the following apply:

  • At the time of the initial filing of the paternity or parentage action the child was over three years of age.
  • Prior to the initial filing of the paternity or parentage action, the alleged father had no knowledge and had no reason to have knowledge of his alleged paternity of the child.  (the mother of the child may establish that the alleged father had or should have had knowledge of the paternity of the child by showing, by a preponderance of the evidence, that she performed a reasonable and documented effort to contact and notify the alleged father)

Establishing Paternity as an Adult in Utah

The issue of filing a paternity action in order to seek child support after a child turns 18 is a murky issue in Utah, and the nuances of this issue are still being determined by Utah courts.

On the one hand, there is a situation where a father, an adult child (any age), and the adult child’s mother all file a joint declaration in probate court alleging that the man is the child’s father and requesting that the probate court issue an order declaring the man to be the adult child’s father.  In that situation, the declaration must state

  • that the adult child’s birth certificate does not designate anyone as the adult child’s father (copy of the birth certificate must be attached);
  • the request for the order is made freely and voluntarily by all parties appearing before the court; and
  • genetic test results show the man is the adult child’s father. (A copy of the DNA test results must be attached)

If the mother is deceased, or has been adjudicated to be incompetent, the alleged father and the adult child can file an action together, without the mother.  The primary purpose for this type of action would be to formalize the father-child relationship and to establish rights of inheritance.  When an action is brought this way, the adult child and the adult child’s mother shall not be awarded child support from the man for the time the adult child was a minor.

Also, a paternity action can be brought by the mother, father, child or CSEA Agency until the child’s 23rd birthday (five years after the child turns 18).  Sounds simple enough right?  Wrong.  The tricky part is, that according to one Supreme Court in Carnes v. Kemp, if you are seeking child support after the child has turned 18, apparently that can only be done when the adult child files to establish paternity AND seek child support.

The issue presented to the Utah Supreme Court in Carnes was “Does a court have subject-matter jurisdiction to award retroactive child support payments in a paternity action initiated after the child has reached the age of majority?”  The Supreme Court of Utah answered the question with a YES.  The Court stated that a juvenile court has the authority to make a support order once a parentage determination is made, and that this means that it may extend the length of time in which to bring a parentage action.  This means that an adult, emancipated child can seek retroactive child support until his or her 23rd birthday.  If granted, the time period for retroactive child support could be from birth through age 18.

Okay, so, if you read the Carnes case, plus Utah law, you’d think that, since a mother can file an action for paternity until a child is age 23, that a mother would also be able to file for retroactive child support until the child turns 23, just like the adult child did in Carnes, right?   Maybe and maybe not.  In another case, the mother of J.V., filed for an action for retroactive child support.  The court of appeals said that because the child was over 18 the court lacked subject matter jurisdiction to award child support to the mother.  The court noted that unlike the Carnes v. Kemp case, no action for paternity had been filed, but said that even if the mother HAD filed an action for paternity, the Carnes case only held that an adult emancipated child could establish paternity and get 18 years back support after reaching the age of 18.  The Court of Appeals in In re J.V. said that the Carnes case did NOT say that a mother had a right to file a claim for retroactive child support after the child turns 18, only that an adult child has the right.  This interpretation of Carnes may not be completely consistent with the Supreme Court’s holding in Carnes, and it is very likely that there will be more decisions addressing this issue in the next few years.

Free Consultation with Child Support Lawyer

If you have a question about child support 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
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Wednesday, 28 March 2018

The Attorney’s Role in Commercial Transactions

As a transactional lawyer, I’ve seen the attorney’s role in commercial transactions has changed dramatically over the past several years. It is not always possible to wait for the client to request the preparation or review of documents.  In many instances, the attorney must now assist the client in finding or creating business opportunities.

Sophisticated clients demand top performance from their attorneys. This goes beyond qualifications and experience. Transactions today are usually much more fragile, and the attorney must have the sense and perception to hold them together and then successfully close them.

The Attorney's Role in Commercial Transactions

At a time when client loyalty to attorneys is low, there is also a great deal of pressure on the legal profession to contain legal fees. Also, with the usual transaction being more complex and short fused, specialization and automation are essential.

While a successful result is paramount, an attorney must maintain a high ethical and professional level. The attorney must be a stabilizing influence and should avoid and try to stop senseless bickering between attorneys. The effective attorney need not use the so-called junkyard dog tactics and instead can be a team player.  Additionally, the attorney must keep the client informed so that the client, rather than the attorney, can make the business decisions.

The Lawyer’s Scope of Responsibility

The business community is looking more frequently to attorneys to locate sources of funds. This requires a knowledge of the capital markets and those who are active in it. This may be accomplished through a direct introduction to the source or to one who has access, such as a mortgage broker or investment banker.

The structure of transactions is now much more complex and usually involves more than one source of funds. For example, current underwriting criteria of lenders requires substantial equity in a project. If an investor does not have the necessary cash or is not willing to part with it, then another level of funding must be added.  This may be an investor, a partner or an equity lender.

It may be necessary to structure a business organization for a party or to tailor a transaction to satisfy a particular need. In addition, tax issues are common and a transaction may involve complicated governmental regulation. This would be the case in the sale of a security which, if not exempt, requires a registration.

The documentation for a transaction cannot be the main focus. It must also be simple and concise, yet complete and fair. So that the business terms are clearly understood, it may still be wise to start with a letter of intent which can also serve as an executive summary of the transaction. The requirement of a legal opinion is becoming more common and is not limited to institutional transactions.

Business relationships and agreements are difficult to establish and a challenge to keep intact. For this reason, an attorney must manage or assist in the management of the transaction until it is closed. This involves regular and clear communication and trouble shooting where required. An attorney with an inflated ego or a contentious personality does not have a place in the transactions of today.

Transaction Attorney’s Fees

In too many instances, the cost of the legal work is more important to the client than any other aspect of the engagement of the attorney. If clients require a flat fee or other controls on the costs, the scope of work and amount of time to be expended by the attorney must be clearly defined. Although a percentage fee may also have a place in a transaction, it may be more suitable as a finder’s fee or creating an opportunity rather than for performance of legal services.  The fee determination is often based more on value than time.  Also, part or all of the fees may be contingent upon achieving a successful result. An attorney may not always be able to accommodate this request because of ethical or financial reasons.

There are rare occasions where a one-line billing statement at the end of a project is appropriate. Usually, the billing statements should contain sufficient detail so that the client can understand the work that was performed and the costs that were advanced. The statements should be sent on a regular basis, usually monthly.

Hopefully, the competition between attorneys and others providing similar services will not put them into a bidding war for the work. As the old adage goes, “you get what you pay for,” and quality may be sacrificed. Also, it would be a mistake to put too much emphasis on an hourly rate, since excessive hours from an inexperienced attorney will nullify the benefit of a low hourly rate.

Written Fee Agreement

The scope of the work and legal fees must be discussed at the outset. The fee arrangement must be confirmed in a fee letter or agreement. The client should understand that the attorney is in the business of selling legal and related services, and the attorney should know that the client is entitled to expect and receive competent and timely legal services for a fair fee.

In engaging an attorney, the client should ask about the attorney’s experience, reputation, prior successes and availability.  Also, the existence of adequate errors and omissions insurance coverage should be discussed. The client should be fair in its dealings with the attorney but should not tolerate any deficiencies in the work or conduct of the attorney.

An attorney should be retained early in the transaction and kept involved in the important stages. This will ensure that all of the deal points have been negotiated and are included in the final documentation. A good relationship between the attorney and the client is based upon mutual respect.  A cooperative effort will go a long way in achieving a successful result.

Free Initial Consultation with a Commercial Lawyer

When you need a transactional commercial attorney, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, 27 March 2018

Things You Need to Know About Prenups

A prenuptial agreement, also be called an antenuptial agreement, or “prenup”, is a contract between two parties who are soon to be married. The usual purpose is to protect property rights.  As a Prenup Lawyer, I can tell you that these agreements must be in writing.

Things You Need to Know About Prenups

  1.  It is best to draft with precise language that makes the intent of the parties clear.  When the agreement includes waiving of rights provided by statute, such as the statutory right to “take against the will”, then the agreement should specifically reference with clear language what statutory rights are being waived by the agreement.
  2.  It is important that the circumstances surrounding the execution of the agreement show that the agreement was signed voluntarily, with full knowledge, that both parties had time to consider the agreement, and both parties knew that they could consult an attorney to represent their interests.  The best practices is to (if possible) require each party to have their own attorney.  In addition, the prenuptial agreement should be signed well before the marriage date instead of surprising one party just prior to the wedding date. A Court may inquire if the party had time to read and consider the agreement, if the party had independent counsel, or if there was coercion or undue influence as part of considering whether there is a defense such that the agreement was unconscionable or there was overreaching.
  3.  A court may inquire if there was full and fair disclosure of all assets and of the effect of the agreement.  Good practice may include attaching an inventory of assets and the value of each asset to the agreement to provide full disclosure.   This is an area where one party often resists – full disclosure.  They just want a document that says something to the effect of “what is yours is yours and what is mine is mine” and to bypass disclosure.  Full disclosure makes the document less subject to attack in a divorce.
  4.  Utah law gives a surviving spouse only four months to bring a legal action to contest an ante nuptial agreement after the death of his or her spouse. Affirmative defenses such as fraud or duress must be put in the legal pleading.
  5.  A Court may find certain provisions of the prenup to be unconscionable at the time of divorce. This may be due to unforeseen circumstances such as a large change in the assets of one party.  A court may choose not to uphold provisions of the prenup that it finds unconscionable.
  6.  Parties should be aware that modifications (postnuptial agreements) made after marriage which are more restrictive or harsh than the original agreement may be closely scrutinized by the Court.

Can I just get a packet of free divorce, dissolution, visitation or custody forms? Do I need a lawyer?

Many times people find themselves asking these questions.  At a minimum, you need to do some research.  Now that the internet has become an integral part of our lives, there is information available to a regular joe that we never had access to before.  Look around on the internet, get some information, and then ask yourself this question- If I’m wrong about this, can I live with the consequences?

Hindsight is always 20/20, but generally, the law expects us to live with the consequences of the agreements we make, for better or for worse.  Many times people sign forms from divorce or custody “packets” without the advice of a lawyer, reasoning that they can always go back to court later if they need to.  Unfortunately, people are sometimes shocked to find that they gave their ex-spouse or significant other sole custody of the children when they thought they were receiving shared parenting.  In the law, the WRITTEN words matter.   In addition, the law places the burden of understanding the legal meaning of the documents on the person who signs them.   The more you have to lose, the less you can afford to take chances.

You are rarely required to have a lawyer.  Generally, you are free to represent yourself in court.  In addition, you don’t always need a lawyer.  There are many things in family law that you can do without a lawyer.  For example, you do not need a lawyer to get a marriage license.  Most of the time, you do not need a lawyer to change your name.  You don’t need a lawyer to file for a protection order if you are a victim of domestic violence.  Many people are able to handle their legal matter to their satisfaction without an attorney.

If you are not sure if you need an attorney, consider arranging a consultation.  Remember, a consultation does not mean that you are agreeing to hire a lawyer.  It means that you are paying for a block of an attorney‘s time in order to ask questions and receive information about the law.  Some attorneys offer free consultations, many do not.  What is most important is the quality of information you receive during your consultation.  A consultation is not simply an “audition” for the lawyer.  You are entitled to receive information and answers during that consultation, even if you cannot afford to hire a lawyer.  The information you receive during this consultation will help you make some very important decisions.

Your time is valuable.  If you are going to take the time to meet with an attorney, you want to get all you can from that time.  Make a list of questions you would like to ask or topics you would like to discuss.  Take the time to take notes.  If you have previous court or administrative orders that in any way might relate to your case, bring a copy with you to the consultation.  Otherwise, the advice you receive may be useless because the attorney was not able to review your current court orders.  If you don’t have a copy of your court order, you can get one from the clerk of court in the county in which your orders were issued, or from the agency that issued the orders.  You will be receiving a lot of information in a short period of time, and you want to remember it all.

Free Initial Consultation with a Prenup Lawyer

When you need help with a prenuptial agreement, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Call a West Jordan Car Accident Lawyer

Every state has its own reasons behind why car accidents happen. In the state of Utah, one of the biggest reasons car accidents happen is because of speeding. Speeding has been the #1 factor for car accidents in 2013, 2014, and 2015.  #2 in 2015 was drunk driving, #4 was drunk driving in 2013 and 2014 and the #5 most common reason for accidents in 2013 and 2014 was failure to yield.  These could have been avoided if only people were a little more careful on the roadways. 2018 is no different.

Call a West Jordan Car Accident Lawyer

While these accidents could be avoided in the future, one thing you might not be able to avoid is hiring a West Jordan car accident lawyer. If you’ve been involved in a car accident it will benefit you to hire someone who has knowledge about personal injury law. If you’ve ever wondered why you would need to hire a car accident lawyer for a vehicular accident here are three scenarios in which one might come in handy.

Insurance Company Is Not Cooperating

If you get into an accident in Utah one of you will be held responsible for the accident. When dealing with an insurance company and a car accident you might find that the insurance company is simply not cooperating in the manner that you had hoped. If the insurance company or carrier that was also involved in the accident is disputing your claim, then its definitely time to hire a West Jordan car accident lawyer. An insurer is more likely to take a claim from a lawyer more seriously.  Your lawyer will also be able to avoid costly mistakes that you might otherwise make by dealing with the accident on your own.

Liability Disputes

When you are in a car accident, especially in the state of Utah, you have to prove that your claim is true. This means you will need to gather evidence such as witness statements in order to prove that you were in the right and the other person was in the wrong. Dealing with witness statements and police reports is not always the easiest thing in the world – not only to get a hold of, but to properly understand. Thankfully a West Jordan car accident lawyer can help you get the evidence you need. help you understand the evidence and get testimony from an expert accident Reconstruction professional.

When You Have Bodily Harm Done

If you’ve been in a really bad car accident and you aren’t just looking for reimbursement for your car, but for any bodily harm done, hiring a West Jordan car accident lawyer can help you to get the lost wages and compensation you really deserve. According to Doctors, something like a spinal cord injury can take any where from $1 million to $5 million dollars for a lifetime of therapy and treatment! If you’ve sustained bodily harm and you need to figure out what the damages really are, this can become quite complex. Which is when a lawyer can come in to help you figure out medical bills as well as lost income, now and in the future.

Free Initial Consultation with a Car Accident Lawyer

When you need legal help after being injured in a car accident, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, 26 March 2018

Contempt of Court in Utah Custody, Parenting and Visitation Cases

In child custody cases, a Judge or Commissioner can hold a person in contempt of court for failure to comply with or interference with a parenting time or visitation order. There are numerous penalties that can be imposed, such as jail time, fines, awards of court costs and /or attorney fees to the aggrieved party, and an order for make-up parenting time.

Contempt of Court in Utah Custody, Parenting and Visitation Cases

In addition, that denial of time and willingness to obey the orders are relevant factors the Judge or Commissioner must consider when determining what is in the best interest of the child.  Continuous and willful denial of the ordered time is a factor which may be found to be a change of circumstances, and the Judge may find that it is in the best interest of the child to change the residential parent or school placement parent.

FINES

The court can impose the following fines:

  • 1st Offense: Up to $250
  • 2nd Offense: Up to $500
  • 3rd Offense: Up to $1,000

JAIL TIME

In addition to all the other penalties, if a person is found in violation of or to have interfered with parenting time or visitation the Judge can sentence the person who is in contempt of court to jail time as follows:

  • 1st Offense: Up to 30 days in jail
  • 2nd Offense: Up to 60 days in jail
  • 3rd Offense: Up to 90 days in jail

COURT COSTS

If a court finds that a person is in contempt of a custody or visitation order, the Judge or Commissioner can charge all court costs arising out of the contempt proceeding against the person in contempt.

ATTORNEY FEES

If a court finds that a person is in contempt of the orders regarding time with the child, the Judge or Commissioner can order the person in contempt to pay “any reasonable attorney’s fees of any adverse party, as determined by the court, that arose in relation to the act of contempt”.

MAKE-UP TIME

Pursuant to a court has the authority to, but is not required to, order make-up time for the parenting time missed as a result of the acts of contempt.  Generally, if holiday parenting time was missed, then similar or identical holiday parenting time is what the court will require to be made up.  For example, if you plan to keep the child for Christmas this year, in violation of the Judge or Commissioner’s order, then chances are good you will not see your child on Christmas next year, and possibly for the next two years.

CHANGING THE CUSTODY OR VISITATION ORDER

If a person is found to be in contempt of an existing order, the Judge or Commissioner may find the parent’s willful disregard of the orders to be a change in circumstance, and may find that it is in the best interest of the child to change which parent is the residential parent or school placement parent.  The Judge or Commissioner does not do this on it’s own, but if the other parent filed a motion to change custody, or school placement parent along with his or her Motion for Contempt, the court may find that the benefit of the change outweighs the harm and give custody to the other parent.

The Judge or Commissioner should also consider, among other factors, the following matters when determining what is in the best interest of the child:

  • The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
  • Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;

The court should consider, among other factors, the following matters when determining what is in the best interest of the child:

  • Each parent’s willingness to reschedule missed parenting time and to facilitate the other parent’s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;
  • Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court.

Free Consultation with Child Custody Lawyer

When you need help with visitation time, custody, or other support issues, 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
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Sunday, 25 March 2018

Salt Lake City Lawyer Talks About Innocent Shooting

Recently, the story of a Utah police officer shooting a dog in its owner’s backyard went viral, and perhaps with good reason, Salt Lake City attorneys say. Beginning with a video posted to Facebook, the story gathered steam via social and news media, and the resulting outrage by the public has raised questions over the series of events that led to the death of the innocent, reportedly non-aggressive pet. According to the article in the Salt Lake Tribune, police officers were searching for a missing 3-year-old boy in the Sugar House area when one of the officers entered a private backyard and shot a Weimaraner in the head, killing it on the absent owner’s property.

Salt Lake City Lawyer Talks About Innocent Shooting

The video that went viral shows the owner of the dog, Sean Kendall, confronting the Salt Lake City police officer upon arriving at his house and learning that his dog had been killed. He reports that he received a phone call from Animal Control informing him of the situation, and asks the question the public has since been demanding an answer to: “What was the cause for an officer to shoot and kill my dog?” It has not yet been reported whether Kendall is looking into getting legal counsel from Salt Lake City attorneys, and the city’s police department “has revealed little information about the shooting except to say that the dog acted aggressively when the officer entered its backyard as he searched for the missing child.”

The officer who pulled the trigger remained on duty and was eventually cleared of any wrongdoing, but the comments on the news articles and in social media about the incident demand that the results aren’t good enough. The executive director of the Humane Society of Utah speaks for much of the public response when he queries, “Why, when there are so many non-lethal alternatives available (pepper spray, tasers, batons, etc.), that this officer hose to use deadly force as his first go-to option?”

Unfortunately, according to some Salt Lake City attorneys, Kendall may not have any legal recursive action available to him. Litigators for civil suits don’t encourage Kendall to be hopeful about filing a case, as property damage claims will likely be small comfort in the face the grief incurred by the death of a pet.

This has been a big enough deal of an incident that the City Council has commented on it, sending a letter to Police Chief Chris Burbank and informing the police department of an independent review to be conducted by the Police Civilian Review Board, with the request that “both investigations be thorough and deliberate, with the results released to the public as soon as possible.”

But even local Salt Lake City attorneys acknowledge that the results of the report will do little to appease the anger of the community, which is partly why the City Council has requested that Burbank “educate” the public on policies of law enforcement surrounding searching for a missing child. No one wants to see another incident like this one anytime soon.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Divorce and Medical Practice Owners in Utah

This case in Domestic Relations involved a divorce that had been litigated for 10 years. One of the disputes revolved around the valuation of the husband’s orthopedic practice. In particular, the valuation of the receivables was disputed. Both experts used the fair market value standard and both placed great emphasis on the value of the receivables.

Divorce and Medical Practice Owners in Utah

The husband valued the receivables using records from 1999. The wife’s expert used the value of receivables in 1998. The husband claimed that the wife’s expert did not use the most recent financial information. However, according to the court, the husband did not provide the most recent receivable information to the wife, nor did the husband have his expert testify, instead relying on an affidavit authenticating the contents of the report. The Appeals Court also noted discrepancies in the 1999 records and the differences in information he provided to the two experts, and used this to support it’s finding that the Wife’s expert opinion was more credible.

In general, the trial Court found the husband’s expert report less credible and the Appeals Court found no abuse in relying on the wife’s expert’s testimony and report.

Traditionally, valuations are performed at a particular time and as of a valuation date. This case really emphasizes the importance of the two sides agreeing on a common valuation date. Had they agreed that 1998 was the valuation date, the issue of timely data, and discrepancies would never have occurred. The case also shows how the court’s perceived failure to disclose can backfire on the party who has the information advantage, normally the owner spouse.

Finally, the exceptional period in delay from filing to final trial, points out the cost of multiple valuations which can be avoided with a fixed valuation date. Experts are not usually required to update their reports except at an additional cost. Dating the valuation as close to the divorce as possible can avoid the cost of updating the report, but may not reflect the valuation realities of the marital assets.

The relevant date is when the parties effectively terminated the marriage, either by separate living arrangements, or by filing for separation or divorce. This approach acknowledges that divorces sometimes take time, but the delay in the court decision should not affect the value of the marital property at the time of divorce. This approach would eliminate the cost of updating the report since any updates would be irrelevant, baring unusual changes in circumstances. If there were unusual circumstances, the effect could be introduced at trial without a complete revaluation.

Utah Supreme Court Puts Limits on Free Attorneys for Contempt of Court

 

On October 24, 2017, the Supreme Court decided that while an indigent parent may have an attorney for a hearing to decide whether they are in contempt of court or not, once they are found in contempt he or she may lose their free attorney. When a person is found in contempt, the court makes orders regarding what must be done to “purge” their contempt, or else face jail time. The court may set a date for the person on contempt (“contemn or””) to come back to court and either prove that they have purged their contempt or go to jail

In Liming v Damos, the Supreme Court decided:

  1. A hearing to determine whether a contemnor has purged himself of civil contempt (a “purge” hearing) is a civil proceeding; and
  2. The Due Process Clauses of the Utah and United Statues Constitutions do not guarantee an indigent parent the right to appointed counsel at a civil contempt purge hearing.

The Supreme Court said that a purge hearing is civil in nature if the original contempt sanction was civil.

In this case, the Commissioner recommended that Mr. Liming be found in contempt for failing to pay his child support, and that he be sentenced to 30 days in jail, with the term suspended as long as he paid his full monthly child support and arrearage payments, and complied with other conditions for one year. The contempt would then be considered purged as long as Mr. Liming remained in compliance. The Judge adopted the Commissioner’s Decision.

Not quite a year later, the Athens County Child Support Enforcement Agency filed a motion to impose the sentence for Mr. Liming’s failure to comply with the seek-work program, to report employment changes to the agency, and to pay child support. The court held a hearing, and Mr. Liming requested a public defender, and the court denied his request. The court found that he had failed to comply with the conditions of the court’s purge order, and Mr. Liming was sentenced to 10 days of his 30 day sentence, with the remaining 20 suspended on the condition that he fully comply with the conditions of the purge order for one year. Mr. Liming appealed the court’s decision.

The Fourth District Court of Appeals said that the original contempt hearing was civil in nature, and enforcing the sentence did not change the purge hearing to a criminal action. This can be confusing – how can it be a civil matter when a person is facing jail time? Contempt is it’s own animal. It is said that a person who is facing contempt has the keys to his own prison. All he has to do is comply with the court’s order, and the threat of jail time is gone.

Mr. Liming argued that it was impossible for him to pay his child support. He argued that the trial court was obligated to determine whether it was impossible for him to pay his child support. The Supreme Court of Utah said that while inability to pay is a defense to contempt, the burden of proof is on the person asserting the defense. The court said there is a presumption of ability to pay from the fact that there is an order to pay, and because Mr. Liming did not object to the original order. In addition, Mr. Liming did not offer any evidence of inability to pay at his hearing to impose the suspended sentence.

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
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Saturday, 24 March 2018

Utah Divorce Jurisdiction

When you need to get divorced, usually, you call a divorce lawyer to talk about your situation and move forward. In determining how to get you divorced, the lawyer must determine where jurisdiction lies. Jurisdiction is a complicated issue.  Actually, it’s a whole bunch of issues all jumbled together.  There is personal jurisdiction, subject matter jurisdiction, and then there is in rem jurisdiction.  If that weren’t complicated enough, there’s also a similar issued called venue.   Before you determine Venue, you have to figure out the proper jurisdiction.

Utah Divorce Jurisdiction

There are many things that are relevant to where you should file your divorce, such as:

  • Whether one or both spouses live in Utah, and how long they have lived there?
  • Which Utah County each spouse lives in, and how long have they lived there?
  • If one or both spouses are absent from Utah but still have contacts with Utah, what is the nature and extent of your contacts?
  • Whether either husband or wife is in the military
  • Whether you have children
  • Whether you want the court to make orders regarding support, real property or personal property, or just to grant a divorce?
  • Do you want a divorce, dissolution, annulment or legal separation?

IN REM JURISDICTION FOR UTAH DIVORCE

In Rem is a latin term.  When used in the divorce context, it refers to the court’s jurisdiction over the marital status.  So a court may have in rem jurisdiction to grant a divorce, but no personal jurisdiction over one of the parties, their money and their property, and/or no subject matter jurisdiction over the parties’ children.  In that case, the court could ONLY make orders that the parties are divorced.  Everything else (child support, spousal support, custody, property division, etc.) would remain in as it is, with no orders until somebody files something to get those orders in the proper jurisdiction.

Why would you want to file a divorce in a court that can only end the marriage and not make any orders regarding child support, custody and property?  Actually, there are lots of reasons.

  1. The first and most obvious would be thata person wants a divorce and does not know where their spouse is.  If you have LOOKED for your spouse (yes, which means contacting the inlaws if you have their phone number or e-mail), tried several methods to find them and been unsuccessful, you can serve your spouse with divorce papers by publication in the newspaper.  You will have to file an affidavit with the court telling them all the methods you used to try to locate your spouse, and what the results were.  Once publication is completed, this is “good service” but ONLY for ending the marriage.
  2. Another reason would be that you and your spouse don’t have any money, property or children to divide, so ending the marriage is the only thing you care about.
  3. A third reason would be that even though you DO have money, property or children with your spouse, you have tried your best to serve your spouse through other methods (mail, sheriff, process server), and you have not been able to do so.  If you are not sure that you have your spouse’s correct address, you MAY be able to serve your spouse by publication and go forward with the divorce.

Free Consultation with Divorce Lawyer in Utah

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Bankruptcy and Your Second Mortgage

One of the most exciting areas of bankruptcy law is the ability to discharge or remove a second mortgage.  For years the ability to remove a second mortgage was largely irrelevant as property values rose year after year.  Now the power of the bankruptcy court has become one of the most powerful consumer protection laws ever.  It is important for every home-owner to know his right to adjust his home mortgage through the bankruptcy law.

How can bankruptcy help discharge my debts?

Although this article refers to a lien on property as a “second mortgage” most types of liens including mortgages, home equity lines of credit, and other variations can be considered “second mortgages.”

Bankruptcy law gives debtors great power over unsecured creditors.  For instance, in most cases all of the client’s credit card debt will be discharged.  Other unsecured debts such as certain bank loans, personal loans, and payday advance loans can similarly be wiped away.

Bankruptcy and Your Second Mortgage

The great power of bankruptcy in the current housing meltdown is its power to treat a second mortgage as an unsecured debt when the first mortgage is under water.  That means that if your house is worth less than the amount owed on your first mortgage, you may be able to rid yourself of your second mortgage along with most of your other debts.  This is called a “lien strip” or a “mortgage strip”

What is required to get rid of my second mortgage?

In order to take advantage of a mortgage strip, a client must complete a Chapter 11 or Chapter 13 reorganization plan.  The plan requires monthly payments to the court to partially repay creditors for a period of 3-5 years.  In many cases the repayment to the court is lower than the monthly second mortgage payment.  You will not have to pay your second mortgage while in bankruptcy, and of course you will continue to live in your house.

At the end of the 3 or 5 year plan, you can own your home subject only to the first mortgage and have no other debt to hold you back.

There is opportunity in the downturn.

There is a bright spot in the housing crisis; those who bought homes at the peak can take advantage of the drop in property values too.  Come and speak with me about how you can own your home free of your second mortgage.

How Can I Pay for Bankruptcy?

Established in federal law, bankruptcy is a proven method for getting out of debt, but those in financial hardship are often uncertain about the costs involved. While you can technically file bankruptcy by yourself, experience matters tremendously and can mean the difference between keeping or losing property, having to re-file your case or even going to jail. Creditors are adept at using the legal system and will count on individuals to be overwhelmed or un-knowledgeable about court proceedings that attorneys have spent years learning.

Weigh Your Options

With court fees, mandatory counseling courses, credit reports and attorney fees, bankruptcies tend to range between $1500 to $2,000 (varies by state & service), with additional fees being paid through Chapter 13 payment plans. Without a doubt, a $2,000 bill can seem overwhelming to someone struggling with debt. But while it may seem expensive to file for bankruptcy, it’s almost certainly more expensive to keep struggling with sky-high interest rates, late payments, overdraft fees, out of control payments, collection attempts, lawsuits, repossessions and even foreclosure. Filing for bankruptcy is an investment in your financial future.

Budget Bankruptcy

You know the old saying: You get what you pay for. Discount attorneys or paralegals that offer to file your bankruptcy for a low price often offer even lower service by cutting corners and saving time. Think about this: If you’re going in for a life-threatening surgery, are you going to find a budget surgeon? Doubtful! Bankruptcy is a vital legal procedure that can impact your financial future for years to come, and mistakes can be devastating.

Watch out for attorneys that offer a low price and a quick case: their incentive to make money fast could result in a mismanaged bankruptcy and even worse, a long term financial disaster for you.

Customized vs. Cookie Cutter

It can be tempting to call up every attorney in the phone book to haggle about price. But consider this: anyone who offers you a fixed quote over the phone is most likely not giving your financial situation the proper review it deserves. What specific service are they even offering? Jumping to conclusions can be extremely costly. Like with other important process, there’s an order to things – you don’t build a home before you check the foundation, and the same is true with bankruptcy.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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