Note: I am not anti-mediation and I never have been. I am anti-mandatory mediation. And I object to flawed and fraudulent arguments in favor of mediation.
Appeals to authority (“courts agree with me”) and ad populum arguments (“people I lecture thank me and say I’m right”) do not mean arguments hold up under scrutiny.
The mediation lobby “argues” that mediation is superior and necessary and your moral obligation by making the same assertions:
The emotional and financial costs of high-conflict custody litigation, including its harmful effect on children, are enormous.
Peaceful conflict resolution is preferable to belligerent conflict resolution.
Problem is that it plainly does not follow from these truisms that litigation is bad and mediation good.
Mediation and all other forms of ADR do not transform a belligerent party or belligerent parties into peacemakers. Rather than concede this obvious point AND admit that mediation isn’t the solution for all conflicts, however, the mediator crowd (and I’m generalizing somewhat here, but not by much):
First asserts the truism that if people were just more mature, mindful, and enlightened there would be no litigation; indeed, there would be no conflict.
Then concludes—erroneously—from their non-premise that engaging in ADR causes people be or at least act in a mature, mindful, and enlightened manner such that they resolve their conflicts. And for good measure they add that if one doesn’t settle one’s conflict through ADR, one failed ADR. They know this is not true (it can’t be). Conflicts cannot be unilaterally resolved by one–albeit one terribly enlightened and earnest–party to a conflict through ADR.
There is nothing about mediation that divests all parties to a conflict of vice and replaces it with virtue. By the same token, there is nothing about litigation that divests people of virtue and replaces it with vice. This is inarguable, but swooning mediation fans refuse to concede this fundamental point.
Courts have hopped on the mediation bandwagon principally because the more that gets mediated the less work the courts have to do. But since they can’t tell us the truth without looking like heels, they borrow a page from the mediator playbook and pump out the same hackneyed hot air: “mediation is critically important to the emotional and psychological well-being of children” blah, blah, blah. The point that the courts and the mediators miss is that mediation itself is nothing. It has no inherent power. Telling divorcing parents to “go to mediation” will not have the magical effect of settling a conflict, much less settling it fast, cheap, and amicably. Merely “going to mediation” won’t settle a case any more than “going to the gym” will build strength and result in weight loss. Courts know this, but they won’t acknowledge it because to do so would strip mediation of the mythic status it has attained as a panacea. Instead, they skip commenting on the step that is crucial to mediation success, i.e., good faith, and act as though they (and you) presume that simply going to mediation means half the battle’s won. Wrong. Litigation fails to serve its intended purpose not because of any inherent flaws; it fails when participants engage in it frivolously, maliciously, and in bad faith. Replace “litigation” in the preceding sentence with “mediation” or “ADR” and it is no less true.
At the outset, know this: I am not anti-mediation.
I am a trained mediator. I earnestly participate in mediation conferences with my divorce clients.
Notwithstanding, the mediation profession at large needs to grow up and take a hard, honest look at itself and stop trading on its aspirations.
For far too long divorce mediation has tried to get by (and has in large part succeeded) on good intentions. As if good intentions were reason enough to justify billing vulnerable, desperate clients. Meaning well is not doing well. Good mediation is good, but mediation is not inherently good.
Divorce mediators need to acknowledge these facts to their clientele without fear that such candor will drive people away:
Mediation rarely works as advertised. Accept it. The public is catching on. Soon you won’t be fooling anyone anymore. Mediators, a precious few of you are miracle workers with the healing, golden touch. As you well know (but won’t publicly grapple with), most people settle in mediation not because the mediator was a settlement wizard but because the divorcing couple doesn’t have the money to litigate and they just want their divorce case over with.
Rather than “thinking win-win” and “focusing on interests instead of positions” and all that hackneyed blather (accept it, mediators; your lingo needs work), people in mediation compromise, compromise, compromise until they settle out of exhaustion, motivated by a fear of endless litigation and cost. Oh yes, and they see the meter running in mediation and that motivates them too (i.e., “Let’s see: I’m paying around $200 or so per hour for my lawyer, around $100 to $150 per hour or so for half the mediator’s fee, so mediation’s costing me at least $300 per hour; you bet your boots I’m motivated to settle, and fast.”).
When courts force people into mediation (as they do in Utah, where I practice), mediation already has one hand tied behind its back because it’s human nature to resist being compelled to do anything, even if the thing one is compelled to do is good or has the potential for doing good. Mediation is not truly mediation if it is not a completely voluntary process among all participants. Compulsory mediation is a mild form of judiciary coercion, which is inexcusable and intolerable, no matter how well-meaning the compulsory mediation proponents act.
Mediation works for parties who place the value of resolving conflict ahead of personal interest, which is why mediation works well for so few people (and notice my use of the phrase on “well for so few” and not “unfailingly for all”). Divorce litigation benefits few people too, but in a perverse way it works, in large part because it has nothing and nowhere to hide. Expectations of litigation for quick, fair, amicable resolutions are low, as they ought to be. Litigation thus has the (ironic) advantage of being trusted because it does not pretend to be something it ain’t.
Basing mediation’s virtues on good intentions (i.e., “mediation works because mediators want peace and voluntary agreements between adversaries”) and best-case scenarios is no different than claiming a stopped clock is valuable because it shows correct time twice a day.
Mediation is plagued by big flaws (and the flood of hack mediators coming into the market is only aggravating the situation). It’s well past time (and likely well past hope) that good mediators examine and correct them instead of pretending they aren’t there and/or whitewashing them. It’s time for courageous mediators to innovate and stop contenting themselves with mere alternative dispute resolution, but substantively superior dispute resolution.
To speak to an attorney on whether or not mediation will work in your Divorce case, please contact us at 801-466-9277 | firstname.lastname@example.org
There is much to know regarding mediation and family law, not all of it pleasant. Now that mediation is entrenched in the practice of law (particularly in family law), everyone in the system has discovered ways to game mediation. Which is why mediation is now falling out of favor, despite the efforts of certain mediators.
As I have stated before, mediation works for people who want it to work. There is no shame in this, but there is shame in mediators refusing to acknowledge the inherent limitations of this practice.
But instead, mediators tout as almost magical mediation’s (unfounded, untrue) “inherent” abilities to bring about synergistic win-win settlements that everyone is happy with in a fraction of the time and cost that litigation would consume. The mediators refuse to acknowledge that ideal mediated settlements–which is what most mediators promise the public when marketing their services to the public–only come about when parties want to reach ideal mediated settlements, not through any innate virtue of the process itself.
Now that the public is getting wise to these overblown promises, mediators are changing tactics and their marketing message. Rather than promising that mediation will virtually always bring about good fast cheap solutions, mediators now claim that even when it fails it succeeds. Other mediators claim that when mediation fails it’s because the parties failed the process. Cute. This is also why we are seeing new terms developed to replace mediation as it falls out of favor. Terms such as “collaborative law,” and “integrative law” that are essentially the same and (except in the most expert hands) function no differently, but do have the temporary advantage of seeming novel through nomenclature.
Remember that you heard it here first, folks: the Golden Age of Mediation, if ever there was one, is past. As with so many good things that have fallen out of favor by becoming corrupted, mediators over promised and under delivered (they had to–what they promised was impossible), and they are now, deservedly, starting to lose some public trust.
Before any of you who read my comments assume me as being anti-mediation, know that I am myself a mediator and also a divorce attorney who encourages clients to mediate when I feel that it is a worthwhile tool, which it is for some, not all.
What is revenge porn, you ask? A form of non-consensual pornography—not that the acts depicted were non-consensual, but that their distribution after the fact was.
If, for example, your ex were very upset about your divorce and starts to spread around intimate pictures you may have taken for his or her eyes only. That would be revenge porn.
Revenge porn transforms unwilling individuals into sexual entertainment for strangers. A vengeful ex-partner or opportunistic hacker can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it.
Utah Code § 76-5b-203 is Utah’s Anti-Pornography law:
76-5b-203. Distribution of an intimate image — Penalty.
As used in this section:
“Distribute” means selling, exhibiting, displaying, wholesaling, retailing, providing, giving, granting admission to, providing access to, or otherwise transferring or presenting an image to another individual, with or without consideration.
“Intimate image” means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that depicts:
exposed human male or female genitals or pubic area, with less than an opaque covering;
a female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or
the individual engaged in any sexually explicit conduct.
“Sexually explicit conduct” means actual or simulated:
sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
sadistic or masochistic activities;
exhibition of the genitals, pubic region, buttocks, or female breast of any individual;
visual depiction of nudity or partial nudity;
fondling or touching of the genitals, pubic region, buttocks, or female breast; or
explicit representation of the defecation or urination functions.
“Simulated sexually explicit conduct” means a feigned or pretended act of sexually explicit conduct that duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.
An actor commits the offense of distribution of intimate images if the actor, with the intent to cause emotional distress or harm, knowingly or intentionally distributes to any third party any intimate image of an individual who is 18 years of age or older, if:
the actor knows that the depicted individual has not given consent to the actor to distribute the intimate image;
the intimate image was created by or provided to the actor under circumstances in which the individual has a reasonable expectation of privacy; and
actual emotional distress or harm is caused to the person as a result of the distribution under this section.
This section does not apply to:
lawful practices of law enforcement agencies;
prosecutorial agency functions;
the reporting of a criminal offense;
court proceedings or any other judicial proceeding; or
lawful and generally accepted medical practices and procedures;
an intimate image if the individual portrayed in the image voluntarily allows public exposure of the image; or
an intimate image that is portrayed in a lawful commercial setting.
This section does not apply to an Internet service provider or interactive computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service, information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined in 47 U.S.C. Sec. 522, if:
the distribution of an intimate image by the Internet service provider occurs only incidentally through the provider’s function of:
transmitting or routing data from one person to another person; or
providing a connection between one person and another person;
the provider does not intentionally aid or abet in the distribution of the intimate image; and
the provider does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute the intimate image.
This section does not apply to a hosting company, as defined in Section 76-10-1230, if:
the distribution of an intimate image by the hosting company occurs only incidentally through the hosting company’s function of providing data storage space or data caching to a person;
the hosting company does not intentionally engage, aid, or abet in the distribution of the intimate image; and
the hosting company does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute, store, or cache the intimate image.
A service provider, as defined in Section 76-10-1230, is not negligent under this section if it complies with Section 76-10-1231.
Distribution of an intimate image is a class A misdemeanor except under Subsection (5)(b).
Distribution of an intimate image is a third degree felony on a second or subsequent conviction for an offense under this section that arises from a separate criminal episode as defined in Section 76-1-401.
Numbers provided by the Center for Disease Control and Prevention reveal that one in three women in Utah will experience domestic violence, compared to one in four nationwide. SeeDomestic Violence in Utah higher than National Average (July 11, 2014). The Utah Department of Health found that approximately 32 percent of all homicides in the state of Utah were domestic violence-related. SeeUtah Dept. of Health report on domestic violence homicides. The numbers are staggering, with an average domestic violence related murders happening every 33 days, and approximately three domestic violence suicides a month.
Seek legal help to learn why and how to document threats and harm against you and/or your children. Learn how to provide notice and proof to law enforcement and the court system that your spouse or significant other is threatening you.
If you need to leave your home, but are unable to do so due to money, there are shelters in parts of Utah that provide assistance to those who need to get away from the danger and get basic help getting back on their feet.
If you need greater protection, you may consider a concealed weapons permit, which Utah will issue after you take the required class and pass the background check. A concealed firearms permit (CFP) does not condoning violence, it is merely a safety precaution that allows men and women the ability to protect themselves from serious physical abuse.
Seek Legal Help: Legal Aid will help free of charge, regardless of the applicant’s income. Legal Aid Society’s Domestic Violence Victim Assistance program provides full legal representation to victims of domestic violence to obtain a protective order against a cohabitant abuser or a civil stalking injunction against a non-cohabitant abuser.
Legal Aid Salt Lake: 801-238-7170
Legal Aid Utah County: 801-374-6766
Seek a Shelter: There are shelters throughout the state that provide services for families that have been affected by domestic violence. This could provide temporary housing, referral programs, counseling, transportation, and more. Please call the statewide confidential domestic violence hot line at 1-800-897-5465, they are available 24/7.
How does divorce affect you when you own a business? In Utah, marital property is divided by the courts equitably. Equitably means fairly, though not necessarily “equally.”
If you started a business during the marriage (or even before the marriage), that business can be divided and awarded in a divorce the same as any other kind of property. But simply being married to you does not automatically entitle your spouse to a share of your business ownership or its profits.
Your spouse might decide to argue (whether truthfully or falsely) that he or she acquired an interest in the business by helping you start it, run it, build it up, or promote it. He or she may claim that by “keeping the home fires burning” you were able to devote your time and efforts to your business such that your spouse deserves a share of the business now. You also need to be on the lookout for double dipping claims where spouse may ask for a portion of your business and for you to pay child support and alimony out of this business as well.
Of course, if your spouse claims an interest in your business, he or she will need to prove (by a preponderance of the evidence) that he or she made the contributions claimed. Remember, simply being married to you does not automatically entitle your spouse to a share of your business ownership or its profits.
If you started, ran, built, and maintained the business all by yourself, without much or any help from your spouse, your spouse may get little to nothing of the business itself.
So what do you do if the business is a marital asset and needs to be divided between you and your spouse? First, you want to establish the real value of the business. There are professional business evaluators who can help you ensure you do not under- or over-value your business if it will be affected by divorce. Not all evaluators are created equal—do the research and find a competent one. Once you have a firm grasp of the value of your business, you may find creative ways to keep the business with you, without having to carve it up or sell it off to satisfy your spouse.
While you could sell the business and divide the proceeds, just because a business may be ordered “divided” does not mean you must cut it up or “kill” it by selling some or all of it and splitting the proceeds of sale. Another option is for you to buy out your spouse’s interest, so that you keep the business. You could buy out your spouse with a single lump sum payment or pay your spouse over time in installments (this would not be alimony, it would be paying your spouse his/her share of the business interest and be separate from and in addition to alimony, if alimony is awarded).
You could, as another option, agree to trade the value of other marital property, so that you keep the business, such as agreeing to have your marital home awarded to all to your spouse and the business awarded all to you, if they are of equivalent value.
And although it’s rare (for reasons that should be obvious), you and your spouse could also agree to continue owning and/or running the business together, even after the divorce.
Whatever you end up doing with the business, know that you have options. As much as thinking about and working at divorce hurts, take the time, care, and effort to determine what your options are, so that you know what the best one is for you and your family.
If you would like to discuss business valuation and division in divorce in greater detail, please give us a call at801-466-9277 and meet us for lunch sometime. We’d be happy to talk about the specifics of your business and your particular circumstances.
Divorce carries with it consequences that could go on for years for those you care about the most (and that includes you!). Still, you feel the need to “save money” on your divorce. “Save money” means different things to different people, and there are oh so many tempting ways to “save”; some wise, some foolish.
Fill in the blank forms. Guidebooks. $500 quickie divorce lawyers.
Deep down you know that if these things worked well they wouldn’t be that cheap in the first place.
“And hey,” you lie to yourself, “maybe my case is special.” You lie to yourself. It’s comforting.
“Maybe I don’t need a lawyer.” Truth be told, in some cases one does not need a lawyer, but not in most cases. Deep down, you know this.
If you knew you really didn’t need an attorney, then you wouldn’t worry over whether you can afford one.
Even when it costs more than the cheap alternative, you never regret paying for quality and paying for value. Never.
Ever. “What we obtain too cheap, we esteem too lightly: it is dearness only that gives everything its value.” (Thomas Paine)
If a case truly is simple and uncontested, then it shouldn’t be expensive for a good (not just any) attorney to handle what you need an attorney to handle to ensure everything is done and done right, the first time.
Don’t make a penny “saved” a penny wasted. Find out if you need a lawyer. Spend the time, and a little bit of money, to see just how much legal help from a professional you may need.
One of the best ways to start is by meeting with an attorney from our office over lunch. For a discounted rate of $100 you get an hour of the attorney’s time over lunch, and will pick up the tab for the meal. Everybody goes to lunch. Meeting with an attorney over lunch won’t take time out of your workday. You won’t have to explain to anybody where you are. Meeting with an attorney over lunch is more relaxed and takes a lot of the anxiety out of talking about your legal concerns. To schedule lunch with a lawyer, give us a call at 801-466-9277.
Many people enter marriage wanting to protect certain assets in the event the marriage were later to fail. When parties enter a marriage and one or both of the members of the couple own businesses or large assets, it is common for one or both of them to want to keep the assets or businesses separate from marital property and protected from being divided in a divorce. To accomplish this, parties will often enter into prenuptial and postnuptial agreements in Utah.
A prenuptial agreement is a is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage. They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery; further conditions of guardianship may be included as well.
A postnuptial agreement is a written contract executed after a couple gets married, or have entered a civil union, to settle the couple’s affairs and assets in the event of a separation or divorce. Like the contents of a prenuptial agreement, provisions vary widely but commonly includes provisions for division of property and spousal support in the event of divorce, death of one of the spouses, or breakup of marriage. In rare cases, a “prenup” may be enforceable even without a marriage, such as with a domestic partnership or registered partnership.
The Utah Code governing prenuptial agreements can be found in the Uniform Premarital Agreement Act. In Utah, prenuptial and postnuptial agreements must stand up to ordinary contract principles. Estate of Beesley, 883 P.2d 1343, 1346 (Utah 1994). For a written agreement to be valid:
Both parties must have capacity.
There must be consideration: Each side must give something up in the exchange.
There must be a meeting of the minds: Both parties must assent to the same thing in the same sense, so that their minds meet as to all terms.
Additionally, due to the unique relationship between a husband and wife, marital agreements may be deemed invalid where there is evidence of fraud, coercion or material nondisclosure. D’Aston v. D’Aston, 808 P.2d 111, 112-13 (Utah 1990). The Utah Appellate Court explained:
“Unlike a party negotiating at arm’s length, who generally will view any proposal with a degree of skepticism, a party to a premarital agreement is much less likely to critically examine representations made by the other party. The mutual trust between the parties raises an expectation that each party will act in the other’s best interest. The closeness of this relationship, however, also renders it particularly susceptible to abuse. Parties to premarital agreements therefore are held to the highest degree of good faith, honesty, and candor.”
Estate of Beesley, 883 P.2d 1343 at 1346.
It is easy to get a pre- or post-nuptial agreement done wrong. Even the smallest failure to comply with the statutes and the way Utah’s appellate courts construe them can result in an agreement being deemed invalid and unenforceable. As pre- and post-nuptial agreements are reviewed with heightened scrutiny by the courts, it’s wise to hire an attorney who has experience (and courage) in drafting prenuptial and postnuptial agreements.
Though Utah is a no-fault divorce state, and divorces are routinely—and almost exclusively—granted for “irreconcilable differences,” infidelity in Utah can still wind up costing you in divorce.
The Utah Code provides for fault to be considered for the purposes of alimony:
(b) The court may consider the fault of the parties in determining whether to award alimony and the terms thereof.
(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
(i) engaging in sexual relations with a person other than the party’s spouse;
(ii) knowingly and intentionally causing or attempting to cause physical harm to the other party or minor children;
(iii) knowingly and intentionally causing the other party or minor children to reasonably fear life-threatening harm; or
(iv) substantially undermining the financial stability of the other party or the minor children.
Utah Code § 30-3-5(8)(b) and (c)
Evidence of infidelity may be presented publicly in court, which can be damaging enough in its own right. One of the clearest cases in which infidelity can hurt is where a spouse has spent marital assets on his/her paramour. If your spouse was renting an apartment for a fling, you may be rewarded with a larger property judgment, money judgment award, or increased alimony.
Moral standards are also a statutory consideration in determining child custody and visitation (also known as “parent time” in the Utah Code) and may be relevant to the extent they affect the children’s best interests. See Utah Code § 30-3-10 and see Sanderson v. Tryon, 739 P.2d 623, 627 (Utah 1987).
Granted, for cheating to affect the custody determination in a divorce it would likely require a rather serious pattern of actually neglecting the needs of one’s children and/or family for the sake of the affair. The fact that the court can consider moral standards does not mean that it must.
The real cost of infidelity in divorce arises long before trial ever begins. Most divorces tend to settle. Settling a divorce case in mediation or through private negotiation can save the parties thousands of dollars and incalculable frustration and anguish. Infidelity can complicate this process, and not just for the offending spouse. It’s no surprise that many people seek redress or compensation when a marriage is ended through the spouse’s infidelity. If a divorcing spouse puts the desire to get back at the cheating spouse above the desire to conclude a divorce, the costs of divorce can rise, and quickly.
Divorce is designed to dissolve the marriage, provide for custody of the children, divide up the marital property and debt and position the respective spouses so that they can move forward in their lives as newly single people. Mediation and settlement negotiations can shorten the divorce process by helping couples agree on child custody (if they have children) and divide the marital estate quickly and amicably; however mediation and settlement are only possible if the parties can come to fair and reasonable middle ground, or if one of them simply gives up. Cheating can make an even bigger enemy of the spouse who otherwise might have been fairly easy to work with.
As would be expected, family law actions are the perfect breeding ground for “he said she said” scenarios. Anyone who has been in a relationship that has ended poorly knows that there are two sides to every story, and there is usually—usually—some truth to both positions. But what about flat out lies?
Utah law appears to be strict on the issue of lying in an official proceeding; in fact, it is a second degree felony carrying a punishment of one to fifteen years in prison, with a possible fine up to $10,000.00.
Despite this seemingly harsh treatment of lying in legal proceedings, in our experience the courts do not care much about lying in divorce and family law proceedings. After decades of attending hearings and trials, time and again I have seen witnesses lie in court, get caught red-handed in the lie, and then suffer few or no adverse consequences. In our opinion, Utah courts can and should do a better job of holding people accountable for lying in court.
In our experience, courts tend to turn a blind eye to stretching the truth, and often the truth is stretched so far that it no longer resembles the truth in anyway.
So the question arises, should you lie? No.
Lying is wrong whether you get away with it or not. There is far too much dishonesty in our society as it is.
Lying in court proceedings doesn’t always result in criminal punishment, but it could (and likely will) irreparably weaken your credibility with your domestic relations commissioner and judge. And while we’ve rarely seen lying punished in divorce actions, you’ll know that we didn’t say we’ve never seen it happen. Do you really want to be the exceptional case of the liar who got punished in his or her divorce? The rewards of lying are outweighed by the risks.
When stuck in the position of telling the truth about a fact that could potentially hurt you (e.g., extramarital affairs, drug or alcohol abuse, suicide attempts, child abuse, etc.) it is best to tell your attorney the complete story and then let your attorney deal with it as best he can. A judge usually respects people with the courage to be truthful even when the truth casts them in a bad light.
There are many issues in a typical divorce that are hotly disputed but child support and spousal support (aka alimony) invariably top that list. This is, in part, because even though most people would not begrudge their own child anything he/she needs to be healthy and happy, few people enjoy parting with their money to an ex-spouse for that purpose on a monthly basis. Even less enjoy parting with their money for the purpose of supporting the ex-spouse on a monthly basis. So, it is not unusual for people to engage in tactics to avoid paying child and/or spousal support to any extent possible.
One tactic is to purposely reduce income by becoming unemployed or underemployed. (“Underemployed” in this context refers to when a person purposely takes a lower paying job.) Since child and spousal support obligations are based (in part) on a person’s ability to pay, eliminating or reducing monthly income may directly eliminate or reduce a person’s support obligation. However, most states recognize this tactic asunacceptable and have passed laws to prevent people from reducing their support obligations in this way.
Under these laws, courts may impute income to a party who purposely becomes unemployed or underemployed to avoid paying (or to reduce the amount of) child or spousal support. IMPUTED INCOME DOES NOT REPRESENT ACTUAL INCOME. Imputed income represents an amount of income a partyshould or could be making based on the facts presented.
So, for example, let’s say Bob made $5,000 a month for the last 5 years as a full-time sales rep for a computer company. But when Bob filed for divorce, he quit that job and started working part time as a cashier at a pizza place where he only makes $1,500 a month. Bob’s wife may ask the court to use $5,000 (instead of $1,500) as Bob’s monthly income to compute how much child and/or spousal support he owes. If the court finds that Bob purposely became underemployed to avoid paying the support obligations he would have owed based on his $5,000 monthly income, the court may impute that $5,000 income to him. NOTE: Bob will in real and actual fact only be making $1,500 a month at the pizza place, but his support obligations will be based on the $5,000 he could be making as a computer sales rep not the $1,500 he is making as a cashier. That $5,000 is imputed income.
Utah’s imputed income statute is provided under Utah Code § 78B-12-203(6-7). In a nutshell, the code provides that the court may impute income if: 1) the party stipulates to the amount imputed, 2) the party defaults, or 3) a hearing is held and the judge enters findings of fact as to the evidentiary basis for the imputation.
As you can see, then, income may be imputed in situations other than when a party is purposely trying to reduce income to minimize or eliminate a support obligation. The first situation referenced above (where a party stipulates to the imputed income) may occur when a party’s income is difficult to verify through regular methods (e.g. the party doesn’t receive regular paychecks, etc.) rather than when a party is purposely unemployed or underemployed. Or it could occur where a party is capable of making income but isn’t for some reason (e.g. he/she chooses to be a stay-at- home parent, etc.) “Stipulates” in this context means that the party agrees to an amount of income being imputed to him or her.
So, other than when a part stipulates to income for some reason, when may a court impute income to a party for support obligation purposes?
A court must first determine whether a party is voluntarily unemployed or underemployed. See Rayner v. Rayner, 2013 UT App 269, ¶ 7 (Utah Ct. App. 2013). This is not as simple as it sounds. Courts struggled with what it means to be voluntarily unemployed/underemployed. So, Utah courts have held a party is “`voluntarily unemployed or underemployed’ when [he or she] intentionally chooses of his or her own free will to become unemployed or underemployed.” Busche at ¶ 16 (citation omitted). In other words “deliberate job loss.” Id. at ¶ 17.
BUT courts have held that choosing to engage in a behavior that leads to becoming unemployed is not the same as intentionally becoming unemployed. And, courts have also held that choosing a lower paid positionfor a plausible reason is not the same as intentionally becoming underemployed. So, the following are NOT examples of becoming voluntarily unemployed/underemployed (i.e. these do not constitute “deliberate job loss”):
Engaging in prohibited workplace behavior (e.g. sexual harassment, abusing drugs, or other misconduct) that leads to being fired. See Busche v. Busche, 2012 UT App 16, 272 P.3d 748 (Utah Ct.App. 2012).
Leaving a higher paid position at one workplace for a lower paid position at another when there was a real possibility of being laid off from the higher paying position. See Connell v. Connell, 2010 UT App 139, 233 P.3d 836 (Utah Ct.App. 2010).
When confronted with an allegation or suspicion that a party is voluntarily unemployed/underemployed, a court must first examine the party’s “historical and current earnings.” Connell at ¶ 17 (citing Hall v. Hall, 858 P.2d 1018, 1024 (Utah Ct. App.1993)). If the court finds that the party involuntarily lost his/her employment that does not end the inquiry. The court “must then consider what the [party] has done” since the involuntary job loss “to determine whether he or she has become voluntarily underemployed by virtue of his or her failure to then make reasonable efforts to obtain employment at a pay rate comparable to that of the lost employment.” Rayner at ¶ 8 (quoting Busche. ¶ 21).
The court must also consider the party’s “employment capacity and earnings potential.” Id. (quoting Hall at 1026). These are described as follows:
Employment capacity: “consideration of the [party’s] abilities and limitations, qualifications, experience, and skills.” Busche at ¶¶ 21-22.
Earning potential: “comparison of …current earnings with…historical income, ‘the prevailing wages for a person with [comparable] qualifications’ and consideration of whether there are jobs reasonably available “in the relevant market for a person with the party’s qualifications and experience.” Rayner at ¶ 8 (quoting Busche at ¶¶ 21-23).
Basically, “a finding of voluntary underemployment must be based on evidence that the party could be earning more with reasonable effort.” Busche at, ¶ 22. If the court finds that the party is voluntarily unemployed/underemployed, the court may then impute a higher income. But, the court is not required to do so. See Id. (citing Hill v. Hill, 869 P.2d 963, 964-65 (Utah Ct.App.1994)). The court maintains “broad discretion” in this regard. Id. (quoting Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct.App.1998)). In other words, the court can decide if imputing income is appropriate (e.g. “fair” or equitable) given all the factors in the case.
If the court determines that the party is voluntarily unemployed/underemployed and that imputing income is appropriate under the circumstances, it may then proceed to the second step which is to determine the specific amount of income to impute. Busche ¶ 23. Under this second step, the trial court must consider the following statutory factors provided in Utah Code § 78B-12-203(7)(b) (See Rayner at ¶ 9):
If income is imputed to a [spouse], the income shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics.
Further, the statute requires the court to enter detailed findings of fact as to both the basis for finding imputation is appropriate and the basis for the specific amount imputed. Rayner at ¶ 10. (Specifically the findings must indicate whether the court’s finding that a “party is voluntarily underemployed or unemployed is really an ultimate fact or a legal conclusion which turns on the subsidiary facts found by the trial court.” Id.) This is to prevent courts from imputing income based on “conjecture.” Id. (quoting Willey v. Willey, 866 P.2d 547, 554 (Utah Ct. App. 1993)). Courts have found that, “(i)mputation is troubling when the obligor is charged with obligations that he may not be able to pay, even with the best of efforts.” Id. (quoting Busche at ¶ 17). So, the trial court must enter not just a “finding of voluntary unemployment or underemployment butspecific, detailed findings ‘as to the evidentiary basis for the imputation.’” Id. (citing Utah Code Ann. § 78B-12-203(7)(a)) (emphasis added).
In sum, while there may be acceptable tactics to minimize child or spousal support obligations, purposely becoming unemployed or underemployed is not one of them. A party who attempts to do so may have income imputed to him/her for support calculation purposes based on his/her historical earnings and other relevant factors. This may be done even though that party is no longer earning that higher income,
Near countless hours have been spent fighting over how much alimony or child support parties should pay and receive in a divorce action. While in Utah the legislature has established an equation to set child support that is based on the parties’ incomes and numbers of overnights with the children, parties still spend enormous effort, money, and time on it and attend court hearings to determine what their incomes actually are. Utah Code Title 78B, Chapter 12 establishes what is included as gross income when establishing child support. Without getting into too much detail, it is based on gross income.
Yes, gross income. No, that’s not crazy or unfair. Utah’s child-support calculations start with gross income but take into account taxes in making the child support determination, so that no one is imputed his or her gross income as his net income. Relax (for now).
Alimony in Utah, however, is not as easy to calculate as child support, as it has many factors the court must analyze before ordering a party to pay spousal support. Alimony, like child support, is based in part on the income of the parties. See Utah Code § 30-3-5. As with child support, it is common for parties in a divorce to fight over what their incomes and/or income potentials are.
So what happens if you’re underemployed, unable or unwilling to get a job which pays you to your full potential? It is common for people in the middle of a divorce to suddenly have a change in income, drastic or subtle. The change in income arise from an innocent cause or can be an effort of a party to avoid a high child support award.
I have seen parties in divorces lose their jobs, and have seen parties purposely stop working in order to try and influence the court regarding their income. The parties often purposely stop working in an effort to make the court think their income level is lower, so that the court will order support payments (child support and alimony) to be lower. Will it work?
The answer is probably not (nor should it—it’s dishonest). The court is charged with determining what your income is or should be, if you and your spouse won’t or can’t agree on this issue. The court has discretion to decide what your income level should be. Courts will often look at your work, education, and income history to determine what you have earned in the past and what you can be expected to earn prospectively. For example, if you have an advanced degree and have been earning $100,000 for 5 years, and suddenly your income drops to $30,000, the court could (and likely would) find that you are underemployed and may order support payments based on your historical income, even when you are not earning what you earned historically. If your spouse has been earning $35,000 for 10 years, but you feel your spouse should be earning $100,000, the court is unlikely to set an income level at your desired level. But your spouse may have just completed college, or he or she may purposely quit a job in the middle of a divorce in an effort to decrease income artificially.
The courts want to prevent spouses from gaming the system. Courts also use the same analysis for your spouse/ex-spouse’s income.
Consequently, the courts will usually set incomes based on historical levels. Now this is not always the case. There are many factors the court considers, and if your income has naturally dropped or decreased through no fault of your own, or if your income spiked for one year only, and dropped to its normal level the court may set your income level at its average level. But remember: if you want the court to be aware of this you have to prove it. You can’t expect the court to sympathize with you based upon your word over that of your spouse. You’ll need documentation. You will need the testimony of your former employer and coworkers, others who work in the same industries as you do, and if your income decreased due to a mental or physical ailment, you will need your doctor, perhaps of vocational specialist and other expert witnesses to vouch for you.
Are prenuptial agreements more trouble than they are worth? Do they start the marriage off on an adversarial note?
A prenuptial agreement could be a sensitive topic in many relationships. If finances are something you and your fiancé openly discuss and are generally on the same page with, it may feel quite natural to bring up the topic of a prenuptial agreement. If, on the other hand, finances are a “sticky” subject that almost invariably result in angry words and bitter feelings, you may find it hard to find the right moment to address this issue. So, is a prenuptial agreement worth brining up and if so when?
Is a prenuptial agreement worth bringing up?
For some, the protection of a prenuptial agreement is valuable insurance against loss. Others see the protection that a prenuptial agreement could offer as so minimal that it may be useless, even counterproductive.
The first step in determining whether a prenuptial agreement is worth it in your situation is to meet with an attorney and/or personally research the laws surrounding marriage and divorce in your state. How are assets divided in divorce proceedings? What factors can affect asset division? How does “fault” affect alimony and division of assets in divorce?
A prenuptial agreement is often recommended if any of the following are true before marriage:
You have been married and/or divorced before
You own a home, and/or other real property
You have assets such as savings, profit-sharing, stocks or retirement funds
You earn a substantial income and your fiancé does not
There is a significant difference between your financial situation and your fiancé’s
You or your fiancé will be supporting the other through college or the like
You have (or are pursuing) an advanced degree or license in a profitable profession (e.g. medicine)
You could shortly see a big increase in income because your business or other money-making venture is taking off.
You own all or part of a business
You may be receiving a considerable or otherwise valuable inheritance
Someone other than your potential future spouse will inherit all or part of your money when you die
You have children and/or grandchildren from a previous marriage whom you want to inherit your estate when you die
You have relatives or other loved ones who need to be taken care of, (e.g. parents, grandparents, siblings, etc.)
If any of the above describes you, and the laws concerning divorce and marriage in your state lead you to believe that a prenuptial agreement is advisable in your situation, then it is most definitely worth raising the subject with your fiancé, even though such a conversation may be an uncomfortable one. If you can’t tackle this subject productively with your fiancé, then how can you expect to tackle all the other difficult subjects that marriage inevitably brings? If you are too afraid raise the subject with your fiancé before marriage, how well do you think you will handle discussions of asset/property division and finances with your fiancé if you were to divorce him/her? If your relationship is too delicate to handle a discussion of these topics now, it’s likely not going to be strong enough to deal with it later.
When and how should you bring up a prenuptial agreement without starting the relationship out on an adversarial foot?
Broach the subject of finances with your fiancé as early as possible. It is smart to begin discussing finances as early as possible in a developing, deepening relationship. These discussions can range from lighter topics to serious, in depth discussions, but should cover the subject fully. As you discuss financial topics, steer clear of behaviors and comments that will create an emotional divide. Avoid being judgmental or condescending. If the two of you can discuss finances in a wide range of circumstances it will be much easier to discuss a prenuptial agreement, if you deem a prenuptial agreement could provide protection for either or both of you; financial disagreements are one of the most common reasons for divorce and for contested divorces.
The worst time to bring the subject of a prenuptial agreement up is shortly before the wedding. This is true for more reasons than one. It could spoil the wedding, but it could also later appear that the prenuptial agreement was signed under duress or threat of not going through with the wedding, which could lead a judge to void your prenuptial agreement. Ideally, a prenuptial agreement should be discussed prior to becoming engaged. However, if you are already engaged and/or the wedding is already approaching, and you feel you need a prenuptial agreement, it is not too late to sign one near the date of the wedding, but it would be wise to ensure your fiancé reviewed the prenuptial agreement with independent legal counsel before signing.
Be honest. Be sensitive. You don’t want to burst your fiancé’s bubble or destroy his/her image of you. You also don’t want your fiancé to think you are bringing the topic up because you plan on–or anticipate–divorce. Talk about your financial fears and concerns and aspirations openly. Don’t avoid or mask vulnerability. Encourage your fiancé to think about his/her own assets, future and vulnerability too. Keep the tone affectionate but the context and discussion itself serious. Emphasize that the two of you will decide the contents of the prenuptial agreement together– that you do not intend to dictate all the terms. Explain that the two of you will not sign a prenuptial agreement until you are both satisfied with its terms, and that if (heaven forbid) the two of you were ever to get divorced that the prenuptial agreement could work to avoid conflict and unfairness in the divorce.
Then begin making a list of your individual assets and property. This is the point where you should seek legal counsel for the remaining steps of the process. There are laws regarding the creation and enforcement of prenuptial agreements. There are too many legal considerations and requirements, too many ways to make mistakes to prepare a prenuptial agreement to take on drafting and signing a prenuptial agreement without professional help.
A prenuptial agreement can provide valuable protection and peace of mind in some situations. A prenuptial agreement does not have to create conflict and can actually help avoid conflict. Prenuptial agreements can foster trust, security and confidence that the two of you can work together to protect each other’s interests. Do not be afraid to broach this topic. And don’t be afraid to seek legal assistance to help you with a prenuptial agreement if you decide one is warranted.
There are many points of contention in a divorce action, from child custody to asset and debt distribution. After child custody, one of the most contentious issues in a divorce is alimony.
This is due in part to the ambiguity surrounding alimony in Utah.
If you are going through a divorce, well-meaning friends, family, and acquaintances will be happy to share a lot of disinformation with you and give you a lot of bad advice. I don’t want to sound elitist, but if you really want to understand how alimony works in Utah, the only way is to speak to a good divorce lawyer who knows the law and knows how it works.
In Utah, child support obligations are almost always calculated based upon a arithmetic formula set by the Utah Code; you simply plug in the income of the parties, how many children you have, how many overnights each party will have the children and the formula will provide a specific amount of child support. Alimony is not subject to plug n’ play formula, and the court is given broad discretion in awarding alimony.
Many will tell you that you should receive half of your spouse’s income as alimony. Others will tell you that you are “entitled” to alimony that ensures you enjoy to “the same standard of living as you did prior to the divorce.” False.
As a general matter of fact, it is almost impossible for most divorcing people to remain post-divorce at the same standard of living they enjoyed when together; divorce results in duplicate housing and other expenses that did not exist when the couple was together under the same roof.
The Utah legislature has established some statutory guidelines to assist the courts in analyzing alimony, and the Utah courts have further clarified these issues. Utah Code Section 30-3-5(8), lists seven factors the courts must consider in determining alimony, however in this analysis the court gives more weight to the first three factors (1) Financial need of the recipient spouse, (2) the earning capacity of the recipient spouse, and (3) the ability of the spouse to pay alimony.
So what happens when the spouse seeking alimony doesn’t have a financial need? In Dobson v. Dobson (294 P.3d 591, Utah Ct. App. 2012), the Utah Court of Appeals held that “regardless of the payor spouse’s ability to pay more, ‘the [recipient] spouse’s demonstrated need must … constitute the maximum permissible alimony award.’” (Dobson, quoting, Jensen v. Jensen, 197 P.3d 117 (Utah App 2008)). This means that the spouse paying alimony is not required to pay any more in alimony than what the recipient spouse needs. This means that if a payor spouse has the ability to pay more alimony, over and above the recipient spouse’s needs, the court cannot order the payor to pay more just because the payor could pay more.
To put this in a real world scenario, when parties are seeking a divorce they are required to fill out financial declarations that show their monthly income and expenses. If a spouse is seeking alimony, she must show that her monthly expenses are reasonable and that she does not have sufficient income to pay these reasonable expenses out of her own income. Need is not synonymous with income equalization.
In Dobson, the Utah Court of Appeals stated that “the court should undertake the last step [to equalize incomes] ‘with an eye towards equalizing the parties’ standards of living only if there is not enough combined ability to maintain both parties at the standard of living they enjoyed during marriage.” (Emphasis added)
Further, the Court of Appeals has stated “[i]ncome equalization, as imposed by the courts in divorce proceedings, is perhaps better described as ‘equalization of poverty.’ In other words, the courts will equalize the incomes of the parties only, in those situations in which one party does not earn enough to cover his or her demonstrated needs and the other party does not have the ability to pay enough to cover those needs.” (Emphasis added).
Parties in a divorce often artificially inflate their monthly expenses and underreport income to either increase alimony, or decrease the money available thereby decreasing the ability to pay alimony. Under controlling case law, a party should only get, at a maximum, alimony 1) in an amount to meet his/her reasonable monthly need, and 2) at an amount that the payor can afford. The goal of Utah alimony is not to equalize wealth, but to pay necessary expenses and then equalize poverty when needed.
Finally, you may not be news you want, but it’s news you need: an alimony award is different from an alimony payment. Just because a court orders your ex to pay you alimony does not mean you will receive it. If your ex refuses to pay or to pay in full, you can go to the court and ask the court for help in collecting, but unless you know how to do this on your own, you may find that the cost of collecting alimony exceeds the amount of alimony you receive. Worse, if you think that the solution is finding alternate and substitute sources for income to mitigate a failure or refusal by your ex to pay alimony, you risk losing your alimony if your ex can prove that you no longer have a need for it. Do not despair, however. Intransigent ex-spouses who refused to pay alimony are nothing new. If you run into this problem yourself, it’s worth it to consult a good divorce attorney to help you.
Under Utah Code Ann. § 30–3–5(10) unless otherwise provided in the divorce decree, alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” See, Levin v. Carlton-Levin, 2014 UT App 3, ¶ 10, 318 P.3d 1177, 1179-80.
What is cohabitation? How do you prove that a couple is cohabitating? What type of evidence can be used to prove that cohabitation exists?
First, what does cohabitation mean under Utah Code §30-3-5(10)? Cohabitation occurs when a couple is living together, and carrying a marriage like relationship. Courts have turned to look at a number of factors in determining whether cohabitation exists.
Are they living together (this does not mean what most people think, so read on)?
Is there sexual intercourse in the relationship?
Do they share in the household expenses?
Do they share in the household decisions?
Do they share a living space?
Does the relationship resemble that of a married couple?
How long have they been together?
Cohabitation can be challenging to prove, and expensive. Oftentimes people have turned to private investigators to follow their former spouses and/or use secret surveillance techniques in the hope of trying to catch their former spouses in the act. Utah Courts have stated that a couple living together, even if they are physically intimate, does notautomatically mean there is cohabitation for purposes of the statute. See Myers v. Myers, ¶ 39 266 P.3d 806 (2011 Utah Supreme Court). The nature, quality, and volume of the evidence is crucial in determining whether a couple is cohabitating.
Improvements in technology now make it easier than ever to gather evidence to prove cohabitation. In 2014, the Utah Court of Appeals decided that an ex-wife (to whom the ex-husband had been paying $15,000 per month in alimony) was cohabitating based on evidence gathered through a GPS tracking system and cell phone data records (Levin v. Carlton-Levin, 318 P.3d 1177, (Utah Court of Appeals 2014). The private investigator used the raw data from the GPS tracking system to determine when the vehicle that was owned by the boyfriend went to and from the residence of the former spouse. Cell phone records were used to determine the location of the parties at the time the calls they were placing were originated. As a result the court determined that the former spouse and her boyfriend were cohabitating and terminated alimony. In addition to using GPS tracking systems, and cell phone tower data, courts have looked at bank statements, video surveillance, and other types of technology in determining whether cohabitation existed.
Still, Utah’s Supreme Court has never “delineate[d] a list of required elements of cohabitation because there is no single prototype of marriage that all married couples conform to.” (Myers v. Myers, ¶ 24, 266 P.3d 806). What Utah courts have done “is identify general hallmarks of marriage” (and thus cohabitation). “Those hallmarks include a shared residence, an intimate relationship, and a common household” involving shared expenses, shared decisions, shared space, and shared meals. Id. ¶¶ 23–24. There are a number of other possible factors “that might more completely inform the question whether a relationship resembles that of a married couple,” such as “the length and continuity of the relationship, the amount of time the couple spends together, the nature of the activities the couple engages in, and whether the couple spends vacations and holidays together.” Id. ¶ 24 n. 3. FN4
So keep in mind as you are going through the process of divorce in Utah and moving on with your life that technology can help keep both parties a little more honest, because it will be harder to hide if someone is lying, and easier to prove.
With rare exception, nobody on either side of a spousal support or alimony issue is ever satisfied.
Those seeking alimony contend there’s never enough. Those paying alimony contend too much is demanded of them. They are both right and they are both wrong. Please read on to learn more about the law governing Utah Alimony and Spousal Support.
Is Spousal Support available?
Yes, Utah provides for the award of alimony (also sometimes referred to as Spousal Support or Spousal Maintenance) in a divorce action.
Who can get it?
Regardless of gender, either party may request and be granted spousal support. Alimony may be ordered on a temporary basis, pending trial, as well as for a longer period after entry of the Decree of Divorce.
the financial condition and needs of the recipient spouse;
the recipient’s earning capacity or ability to produce income;
the ability of the payor spouse to provide support;
the length of the marriage; the longer the marriage, the greater the likelihood of an alimony award;
whether the recipient spouse has custody of minor children requiring support;
whether the recipient spouse worked in a business owned or operated by the payor spouse; and
whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage.
As a general rule, the Utah courts look to the standard of living, which exists at the time of separation, in determining alimony; however, the court must consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no children have been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.
The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living, but is not required to do so.
When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony.
If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.
In determining alimony when a marriage of short duration dissolves, and no children have been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.
The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.
The court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.
In determining alimony, the income of any subsequent spouse of the payor may not be considered, except that the court may consider the subsequent spouse’s financial ability to share living expenses, and the court may consider the income of a subsequent spouse if the court finds that the payor’s improper conduct justifies that consideration.
How long are Alimony payments in effect?
Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.
Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and his rights are determined.
Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.
I can’t speak for anyone else, but my parents dreaded hearing that phrase from me as a teenager. It nearly always meant that I forgotten to tell them about a message or mistake I had made that would have avoided whatever situation we had just found ourselves in.
When it comes to submitting evidence to your attorney, you should take the same approach my parents eventually did—better to know too much than to know too little. You can far more easily discard the excess than desperately try to compensate for being underprepared. It’s a tragedy when your lawyer doesn’t know of a key piece of evidence because you never bothered to mention it to him and ask if it might be useful (or harmful); when in doubt as to whether a fact or piece of evidence might be important, err on the side of telling your lawyer about it and producing it. Hiding it from your lawyer only means your spouse can shank you with it. When it comes to facts in divorce, there’s rarely too much of a good thing.
The law that governs prenuptial agreements (known as “premarital agreements” in Utah) is found in the Utah Code in Title 30, Chapter 8. We will answer most questions about premarital agreements by referring to the applicable sections of the Utah Code and some Utah case law on the subject.
Are Prenuptial Agreement a Good Idea?
In answering this question, I could give you the generic opinions that you can find in dozens of other blog postings and articles online or in the library, so I will leave you to the web or the library to find those. As to my personal opinion:
For most people (especially young people marrying for the first (and hopefully the only) time, I don’t feel that prenuptial agreements are a good idea. The very fact that the question (of whether prenuptial agreements are a good idea) is asked implies that people have their doubts.
Briefly, prenuptial agreements often make sense for people entering into another marriage after divorce or after the death of a spouse. Prenuptial agreements in these situations can help prevent friction between the couple over ownership of property you worked hard with your previous spouse to obtain and that you may feel the new spouse ought not claim or share an interest. By the same token, prenuptial agreements help previously wed couples protect their children’s inheritance from the “evil step parent.” Prenuptial agreements can also make sense for people of extraordinary financial means to protect them from “gold diggers” too. Otherwise, however, I think prenuptial agreements start a marriage off on the wrong foot.
Let me give you an imperfect analogy to explain why I’m against prenuptial agreements generally, especially for first-time marriages by the relatively young and poor:
You commit to training for and running a marathon, but just in case you decide not to finish training or finish the race itself, you enter into a “pre-marathon agreement,” which provides that in the event you do not finish, you are paid half of your hourly wage you would have otherwise earned if you had chosen to work at your job instead of train and two weeks’ vacation. How likely are you to finish when you have not just a safety net, but an escape hatch?
How likely are you to stay committed to your training regimen? How easy will it be for you to “realize” that you really didn’t want to finish a marathon in the first place, or that the rewards of training for and completing a marathon don’t justify the personal sacrifices required of you?
“But wait,” you may say, “what if through no fault of my own I can’t finish the training or the marathon?” What if a car hits you during a training run? What if you get dehydrated and can’t finish? Friend, finishing the race is important, but it isn’t the point. It never was. In life there are no guarantees. Training for the marathon is about conquering yourself (not coddling yourself), and in conquering yourself, you know yourself and your purpose more fully, deeply, and accurately. Knowing the truth about yourself, your unique talents and limitations, you better equipped and more willing to bring out the best in yourself. “Bring out the best” denotes that you must give of everything—your time, your money, your property, your attention, your labor, your comfort, your convenience, your body and soul.
Marriage is not simply a question of “what’s in it for me?” Marriage is bigger than you, it’s bigger than your spouse. It’s even more important than the both of you combined.
Don’t get a prenup to avoid the demands of divorce. As my mother told me, it’s the people who do nothing who never fail. Burn your ships and turn your back on the single life when you marry. Commit to your spouse and to your marriage and their success. Success is meaningless without the risk of loss, of pain, of sacrifice, of failure. Success lies in transcending risk, pain, and sacrifice.
I know that the following thought comes from Jewish philosophy, but as I was writing this I could not find the reference, so I apologize for that, but I still wish to share it with you because it encapsulates both the value of marriage and why a prenuptial agreement in most cases (you’ll note that I did not state “in all cases”—there are times when a prenuptial agreement makes good sense): Marriage is a lifetime commitment to provide constantly to your spouse emotional intimacy, thereby uncovering your true self and, ultimately, your unique purpose for being created.
A few things you suspected, weren’t sure of, and that I can confirm for you:
Filing for divorce is a daunting task in all but the simplest cases.
There are plenty of shyster divorce lawyers out there. Buyer beware.
Fortune favors both the bold and the prepared in divorce.
You know you should get a divorce lawyer if there is anything that you and your spouse disagree over regarding divorce. Remember the old Fram oil filter commercial?
Fram salesman: A Fram filter doesn’t cost much.
Engine mechanic: I do.
Fram salesman: But the choice is yours. You can pay me now—
Engine mechanic: . . . or pay me later.
Instead of having to suffer a similar fate in your divorce, you might want to consider doing a few of the following to smooth the process, avoid the damage procrastination does, make your divorce as painless as possible, and give yourself every advantage that a little (and sometimes a lot of) advance planning and preparation will provide.
Talk to a marriage counselor.
Even though, at this point, you may have declared your marriage dead (and for good reason), a marriage counselor is still useful for other things. A marriage counselor can help you figure out what went wrong in the relationship and help you cope with the impending end of your marriage, whether you, your spouse, or both are the cause. I mean it. Some people can cope with divorce on their own, some people who are otherwise physically and mentally healthy can’t go it alone. That doesn’t make you a bad person or a defective person, it makes you a smart person, if you do the right thing for you.
Gather your financial documents.
Part of filing for divorce will mean reviewing your finances; you income, assets, expenses, and debts. Gather your financial documents so that you (and your attorney) know what you’re dealing with and help you exert greater control over what happens. In Utah, this is a minimum list of what you will need to prepare your Financial Declaration:
For the two tax years before the petition in this case was filed, complete federal and state income tax returns, including Form W-2, Form 1099, and Form K-1, and supporting tax schedules and attachments filed by you and by any entity in which you have a majority or controlling interest.
Pay stubs and other evidence of all earned and un-earned income for the 12 months before the petition in this case was filed. For income that changes from month to month, calculate the annual total and divide by 12 months to list a monthly average.
All loan applications and financial statements prepared or used by the party completing the financial declaration within the 12 months before the petition in this case was filed.
Documents verifying the value of all real estate in which the party has an interest, including the most recent appraisal, tax valuation and refinance documents.
All statements for the 3 months before the petition in this case was filed for all financial accounts, including checking, savings, money market funds, certificates of deposit, brokerage, investment, and retirement.
Social Security Number
Monthly Tax Deductions. These are deductions required by law and which you do not make voluntarily. Gather documentation of claims, such as most recent pay stubs, federal and state tax returns for past 2 years, W-2 forms, or a work history report from the Department of Workforce Services.
Real Property. Attach evidence of items listed, such as mortgage statements, loan documents, most recent appraisal, basis of valuation, etc.
Personal Property. Gather evidence of items listed, such as receipts, loan documents, basis of current value, certificates of title, etc.
Financial Assets. Gather evidence of items listed, including last 3 months of bank statements, contracts, etc.
Bank or Credit Union Account
Stocks, Bonds, Securities, Money Market Fund
Certificates of Deposit
Retirement Account (Pension, 401(k), IRA, etc.)
Profit Sharing Plan
Money owed to you and/or your spouse
Debts. Gather evidence of items listed, such as credit card statements, loan documents, leases, bills, etc. that identify the name and address of creditor, the purpose of the debt (such as credit card, cash loan, installment payment, etc.), in whose name the debt was incurred, amount owed, monthly payments,
Monthly Expenses. Include amounts other than taxes withheld from your paycheck. For expenses that change from month to month, calculate the annual total and divide by 12 months to list a monthly average. Include amounts you pay for yourself and any children or other dependents in your household.
Rent or mortgage
Real property taxes
Alimony (from prior marriage)
Real property insurance
Child support (from prior order)
Real property maintenance
Food and household supplies
Laundry and dry cleaning
Extra-curricular activities (children)
Health care insurance premiums
Health care expenses
Other insurance (Describe)
Union or other dues
401K or other retirement or pension fund contribution
Savings plan contribution
Water, sewer and garbage
Paid television (Cable, Satellite, Etc.)
Consult a Good Divorce Lawyer Early On
I carefully chose each word in the heading above. I stated at the beginning of this article that there are plenty of shyster divorce lawyers. Yet divorce lawyers remain in business, and that’s because some of us provide a vital service. You may not need an attorney for your divorce, but you’d be a fool not to find out in advance, as opposed to discovering after the fact of going it alone that you should’ve hired counsel. Consult a divorce lawyer early on, and not just any divorce lawyer, a good divorce lawyer. Someone who practices divorce and family law exclusively or, if you must go to someone who doesn’t practice divorce and family law exclusively, someone who practices divorce and family law plus one (1) other practice area. Attorneys who claim to offer a broad range of legal services are spread too thin to do any single kind of job well.
Check your credit.
It is always a good idea to know where your credit stands. Request a copy of your credit report so you can take care of any outstanding collections or correct any errors now instead of trying to deal with them later. If you have joint credit cards with your spouse, discuss closing them to protect both of your credit scores.
Apply for your own separate credit card(s).
You may want or need to establish credit in your own name now, and having a credit card will help to do this. To build your credit but small or set expenses—such as gas—on the credit card and pay if off monthly so you have more credit available to you than you do debt.
Make a post-divorce budget.
Using the documents you gathered earlier, assess what your cost of living and income will be after divorce. Save as much as you can now to prepare for initial expenses you may have—such as apartment deposits and moving costs.
Do not leave the marital home without talking to an attorney first.
Whether you decide to proceed through the divorce process without a lawyer, you owe it to yourself to do no less than consult with a good (a good, not just any) divorce attorney before you start the divorce process. Understand for you’ll be up against. Understand what is required of you.
Leaving the home may result in alimony payments, or in your inability to collect alimony. If you leave, you may not be able to return until the divorce is finalized; a process that might take a year or longer. Of course, if you are in abusive situation your safety is more important so take the necessary steps to protect yourself and your children.
While these are a good start, they are by no means a complete list of preparing for your divorce.
You will probably not believe, and surely not like, but you learn about the divorce process and the way divorce law operates. There is no reason for you to reinvent the wheel. There is no reason for you to study at the school of hard knocks. There is no reason why you should engage in trial and error when there are experienced divorce attorneys who have been down this road hundreds of time before with people like you and the people whose experiences were far worse than yours.
To meet with a good lawyer from our office, give us a call we’ll meet with you over lunch at your convenience: 801-466-9277.
Do you need a divorce attorney but you’re not quite sure where to begin? Selecting an appropriate and qualified attorney can be crucial to the outcome of your divorce case. Here are some useful tips for selecting a divorce attorney that’s right for you and your situation.
Determine what type of attorney you will need. Do you have children? If so, you’ll want to select an attorney that specializes in family law or child custody issues. Do you own a home, have assets and investments, debt, etc.? Depending on your financial situation, you may need to select an attorney that is experienced in financial law. Also, consider how aggressive an attorney you might need. Does your spouse already have an aggressive attorney? You may need an attorney that can match that. Do you have an amicable relationship with your spouse? Perhaps an attorney skilled at mediation, who can negotiate a divorce decree suitable for both parties, might be right for you. If your spouse is abusive, you may need to find an attorney that specializes women’s rights or domestic violence. If you live in the state of Utah, the Utah State Bar directory offers a useful search tool, whereby you can search for attorneys based upon their area of expertise, location, etc.: https://services.utahbar.org/Member-Directory
Don’t wait until the last minute. If your situation permits, begin looking for an attorney early. Give yourself plenty of time to research and select an attorney with which you feel comfortable. Waiting until the last minute may result in choosing an attorney that may not be satisfactory to you.
Ask for recommendations. Asking people you know and trust for good divorce lawyer recommendations is a good place to start. You might begin by asking friends or family members who have recently gone through the divorce process. Therapists, financial advisors, CPAs, or other attorneys can usually refer you to reputable divorce lawyers as well. Be sure to ask several questions about the attorney that someone is recommending so that you can determine whether or not their experience or character is suitable for you and your situation – just because someone else had a good experience with a divorce attorney does not always mean they will be a good fit for you. Consider your own needs and/or your family’s needs.’
Be thorough. Before your initial consultation with a divorce lawyer, prepare several questions that you would like to ask them. You may want to ask them questions about their approach in settling a case, how long they’ve been practicing law (specifically divorce law), how much they charge (initial retainer fee, hourly fee, flat fee, etc.), what percentage of cases they have settled, do they have any particular areas of expertise (child custody issues, financial law, domestic violence, etc.), and any other questions that might pertain to you and your situation.
Think it through. After you have met with one or more attorneys, compare each of them. Consider their answers to the questions you asked them. Ask yourself whether or not you feel they would be suitable for you. Don’t be afraid to take your time while thinking it over. This is an important decision – after all, this is your life and your family.