BLANK

Tag: attorney

What Are the Options for Someone Who Has Been Served Divorce Papers by Their Spouse Who Has Moved Away and No Longer Wants to Be With Them?

If you want to know your options and have the time to exercise them, then you need to meet with an attorney immediately to find out what the law requires of you, so that you don’t default (“default” means that you failed or refused to answer or defend against the divorce petition or complaint filed against you in court) and end up having judgment entered against for your default. You have a limited amount of time to respond to the petition/complaint for divorce before you will be in default. Choosing to procrastinate is not an option that would do you any goodGo consult with an attorney immediately. Bring the divorce papers you were served with to the appointment.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://motherinlawmysteriesandconflicts.quora.com/What-are-the-options-for-someone-who-has-been-served-divorce-papers-by-their-spouse-who-has-moved-away-and-no-longer-wan-8

Tags: , , , , ,

My attorney withdrew as my counsel in my divorce case. What do I do now?

I received a notice from opposing counsel that looks (or contains) something like this:

“You are hereby notified of your responsibility to appear personally or appoint counsel.”

What does this mean? What do I do now?

First, let’s explain to you and to other readers what a withdrawal of counsel is.

“Withdrawal of counsel” means that your attorney no longer represents you, that your attorney does not work for you anymore. Your attorney can “quit” in the middle of a case, and there two common scenarios when they do: 1) when the client cannot pay the attorney’s fees and/or 2) when the attorney and client don’t see eye to eye on how to proceed with the case. As long as no motion is pending or a hearing or trial has not been set, an attorney may withdraw by simply giving his/her client, the opposing attorney or party (if the party is not represented by an attorney), and the court a written “Notice of Withdrawal of Counsel” (a copy of which is filed with the court). If a motion is pending or a hearing or trial has been set, an attorney may not withdraw except upon motion and order of the court. See Utah Rules of Civil Procedure Rule 74.

Rule 74 further provides:

(c) Notice to Appear or Appoint Counsel. If an attorney withdraws other than under subdivision (b), dies, is suspended from the practice of law, is disbarred, or is removed from the case by the court, the opposing party shall serve a Notice to Appear or Appoint Counsel on the unrepresented party, informing the party of the responsibility to appear personally or appoint counsel. A copy of the Notice to Appear or Appoint Counsel must be filed with the court. No further proceedings shall be held in the case until 21 days after filing the Notice to Appear or Appoint Counsel unless the unrepresented party waives the time requirement or unless otherwise ordered by the court.

(d) Substitution of counsel. An attorney may replace the counsel of record by filing and serving a notice of substitution of counsel signed by former counsel, new counsel and the client. Court approval is not required if new counsel certifies in the notice of substitution that counsel will comply with the existing hearing schedule and deadlines.

If your attorney has withdrawn as your counsel and you either can’t find a new attorney or Licensed Paralegal Practitioner (LPP) to take his/her place, or if you choose to represent yourself (which is known as proceeding pro se) from that point, you are required to provide the opposing attorney or party (if the party is not represented by an attorney), and the court with a written “Notice of Personal Appearance OR Notice of Counsel’s or Licensed Paralegal Practitioner’s Appearance” (a copy of which is filed with the court). A form you can use for this purpose has been prepared by the Utah Courts and is available on their website here: Notice of Personal Appearance OR Notice of Counsel’s or Licensed Paralegal Practitioner’s Appearance (utcourts.gov)

This page on the Utah Courts website may also be helpful to you if you are proceeding pro se: Going to Court (utcourts.gov)

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , , ,

Can anyone recommend a good attorney for father’s rights?

Many fathers and those who care about them ask this question. It’s no wonder why. But beware. “Father’s Rights Attorney” is, for the most part, a scam. Don’t misunderstand me: fathers unquestionably get treated unfairly in child custody disputes. And there are a few attorney’s out there who may legitimately make focuses solely (and expertly) on defending and preserving and advancing father’s rights in child custody disputes, but generally, the “Father’s Rights Attorney” is just a marketing ploy. Have you ever wondered why you don’t see any “Mother’s Rights Attorney” advertising? Because men have more money than women (generally), so the “Father’s Rights Attorneys” play upon the fears of fathers by convincing fathers that “we specialize” and “we care” and “we know what it takes to get fathers JUSTICE!!!!!” Stuff like that to get fathers to open their wallets.

If you are a father and you are concerned that you will not be treated fairly or you are not being treated fairly by a biased judge, you’re likely not looking for a “Father’s Rights Attorney”; what you’re looking for is a skilled, knowledgeable, diligent, honest attorney who will first tell you whether he/she believes you have a fighting chance, and if so, will help you prepare and argue your case, so that you and the children are dealt with fairly when it comes to your involvement in your children’s lives.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , ,

Some hard truths about divorce litigation in Utah.

To those of you who ask, “How did I lose that argument in my divorce case? The judge couldn’t say why he/she believed my witness(es) over my spouse’s witness(es)!”:

A district court “may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

To those of you who ask, “How could the court dismiss the opinions of my expert witness?”:

“Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified).

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , , , , ,

I’m a US citizen. I got divorced overseas. I have a child custody from an overseas country. What should I do to legalize the overseas court order in the US?

Confer with an attorney in the jurisdiction where you and/or the other parent now reside who has knowledge and experience with registering foreign divorce and child custody orders in the jurisdiction where you and/or the other parent now reside.

(48) I’m a US citizen. I got divorced overseas. I have a child custody from an overseas country. What should I do to legalize the overseas court order in the US? – Quora

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , ,

Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 4:

Your attorney cannot do what only you can do. Your attorney cannot answer questions posed to you until you provide your attorney with the information and facts needed to answer the question. Your attorney cannot produce your documents requested in the discovery process without you first producing those documents to your attorney.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , ,

Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 2:

If your attorney calls you, it’s important. Take the call, and if you can’t take the call, then call back ASAP (meaning same day, and not at 4:47 p.m.). Hours can often make the difference between winning and losing. If your lawyer is desperately trying to get in touch with you in the morning and you don’t respond until later that day, or worse, days later, it may be too late. Really. No, really.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , ,

What Does It Mean When Your Partner Hires an Attorney and Says He/She Is Going to Fight for Custody of the Children? How Likely Is It That They Will Get Sole Custody of the Kids?

Merely hiring an attorney does not give one an automatic advantage in a divorce and/or child custody case.

It can, but it’s not guaranteed. Why? Because some attorneys are incompetent. Being represented by a really bad attorney might even be worse than having no attorney representing you at all.

While there are some attorneys who will do anything to win at all costs for the client (which usually entails billing the client tremendous amounts of money to do so) and who may be able to win custody for a parent who otherwise not win custody that parent not hired the “win at all costs” lawyer, the law does not base child custody award decisions solely or even chiefly on whose lawyer is the more skilled or persuasive.

The purpose of child custody laws and their application is to ensure the child custody award first subserves the best interest of the child without infringing upon the parental rights of either parent any more than may be necessary to subserve the best interest of the child.

How likely a parent is to win sole custody of a child or children can often depend on how ruthless and unscrupulous a parent (and his/her attorney, if represented by ruthless and unscrupulous attorney) are, but fortunately most (most, not all) judges try not to be taken in by sneaky lawyer tricks and sensational stories that have little to no basis in any independently verifiable facts.

That stated, if the other parent hires a skilled attorney or a skilled AND unscrupulous attorney, your odds of succeeding in the case without you also being represented by an attorney who is at least as skilled aren’t good.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-does-it-mean-when-your-partner-hires-an-attorney-and-says-he-she-is-going-to-fight-for-custody-of-the-children-How-likely-is-it-that-they-will-get-sole-custody-of-the-kids/answer/Eric-Johnson-311

Tags:

What Are the Benefits of Hiring an Experienced Family Law Attorney for Your Divorce and Custody Matters Instead of Representing Yourself?

I am a divorce lawyer. You may believe, consequently, that my response to your question is going to be self-serving and that I am going to tell you that you should hire an experienced family law attorney. You are wise and prudent to be skeptical.

That stated, you can ask those of your circle of friends and family members whom you trust and who are as wise as or wiser than you whether hiring an experienced family law attorney for your divorce and custody matters instead of representing yourself. They will tell you, unequivocally and without question, that the answer is “yes.”

That stated, the benefits of hiring a divorce attorney are not as great as they were a generation ago. There are still many benefits to hiring a divorce attorney these days, but much of what an attorney—and only an attorney—could do for you in the past (due to the specialized knowledge your attorney, and only your attorney or other attorneys like him/her, is now possible to obtain and enjoy through sources other than an attorney. Almost any family law question can be answered by some diligent Internet research (be warned, however: there’s infinite supplies of misinformation, myths, and mindless drivel on the Internet too, so conduct your research with a careful and discriminating eye).

If you’re willing to put in the time and effort, you could become a fairly formidable pro se (meaning “self-represented”) family law litigant. Many jurisdictions are also starting to permit people other than lawyers, such as specially certified or licensed paralegals, to practice some limited scope legal services in family law cases. Candidly, when you opt to represent yourself or hire a non-lawyer, it should come as no surprise that you almost always get what you pay for. Otherwise stated, the amount of money you “save” by not hiring a skilled attorney is usually “paid” in the form of excessive amounts of time and effort you have to expend to gain the benefits equivalent to simply hiring a skilled attorney. There’s no free lunch, there are no shortcuts.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-the-benefits-of-hiring-an-experienced-family-law-attorney-for-your-divorce-and-custody-matters-instead-of-representing-yourself/answer/Eric-Johnson-311

Tags: ,

How Much Is a Family Attorney?

The American Bar Association has general rules on fees you can find here: ABA Model Rules of Professional Conduct Rule 1.5.

I will answer this question as it applies in the jurisdiction where I practice divorce and family law (Utah). Each jurisdiction has its own rules governing the fees attorneys charge.

According the Utah Rules of Professional Conduct Rule 1.5 (Fees):

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

(2) a contingent fee for representing a defendant in a criminal case.

(e) A licensed paralegal practitioner may not enter into a contingent fee agreement with a client.

(f) Before providing any services, a licensed paralegal practitioner must provide the client with a written agreement that:

(1) states the purpose for which the licensed paralegal practitioner has been retained;

(2) identifies the services to be performed;

(3) identifies the rate or fee for the services to be performed and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation;

(4) includes a statement printed in 12-point boldface type that the licensed paralegal practitioner is not an attorney and is limited to practice in only those areas in which the licensed paralegal practitioner is licensed;

(5) includes a provision stating that the client may report complaints relating to a licensed paralegal practitioner or the unauthorized practice of law to the Office of Professional Conduct, including a toll-free number and Internet website;

(6) describes the document to be prepared;

(7) describes the purpose of the document;

(8) describes the process to be followed in preparing the document;

(9) states whether the licensed paralegal practitioner will be filing the document on the client’s behalf; and

(10) states the approximate time necessary to complete the task.

(g) A licensed paralegal practitioner may not make an oral or written statement guaranteeing or promising an outcome, unless the licensed paralegal practitioner has some basis in fact for making the guarantee or promise.

———————-

COMMENT

Reasonableness of Fee and Expenses

[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (a)(1) through (a)(8) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.

Basis or Rate of Fee

[2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer’s customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding.

[3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters.

Terms of Payment

[4] A lawyer may require advance payment of a fee but is obligated to return any unearned portion. See Rule1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client.

[5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client’s interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client’s ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.

Prohibited Contingent Fees

[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.

Disputes over Fees

[7] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the Bar, the lawyer must comply with the procedure when it is mandatory, and, even when it is voluntary, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer’s fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.

[8] This rule differs from the ABA model rule.

[8a] This rule differs from the ABA Model Rule by including certain restrictions on licensed paralegal practitioners.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-much-is-a-family-attorney/answer/Eric-Johnson-311

Tags: ,

Can You Win a Custody Battle Without an Attorney?

Can you? Meaning: is it possible? Of course it’s possible.

Likely? That depends.

I had written over 500 words in my first draft of the answer to this question when I realized I could state the answer clearly with fewer words.

Here is one way of analyzing the question. There is generally an embarrassingly obvious and high level of sexual discrimination against fathers in child custody cases. In my experience, this is what I’ve noticed, if the child custody award is an all-or-nothing proposition*:

All things being equal, the mother’s odds of success are higher than those of the father.

If the father is represented by an attorney but the mother is not, the mother’s odds of success are still higher than those of the father.

If the mother has a history of substance abuse but the father does not, the mother’s odds of success are still higher than those of the father IF the mother gets in to treatment and gets favorable progress reports from the treatment provider before trial.

If the mother has a history of child neglect, child abuse, and/or other violence, but the father does not, the mother’s odds of success are still higher than those of the father IF the mother gets in to treatment and gets favorable progress reports from the treatment provider before trial.

If the mother is homeless, but the father is not, the mother’s odds of success are still higher than those of the father IF the mother gets the court to believe she now has decent housing for her and for the child.

—————

*When a child has two fit and loving parents who live in close enough proximity to make equal physical custody not merely possible or feasible but easily and pragmatically implemented, then the “best parent” is both parents. How could it be otherwise? Children of two fit, loving parents deserve to spend as much time in the care and under the tutelage of both parents, and that means the child custody award must be an equal legal and physical custody award.

Utah Family Law, LC | divorceutah.com | 801-466-9277

(10) Eric Johnson’s answer to Can you win a custody battle without an attorney? – Quora

Tags: , ,

What advice would you give to someone who has just started a divorce?

What advice would you give to someone who has just become one of the parties in a divorce proceeding?

#1. Know this: divorce law and the divorce process are almost surely not what you think they are. They are scarier, more complex, more confusing, more time-consuming, more expensive, more disappointing, and more discouraging than you can imagine. Ignore my words at your peril. 

#2. Don’t sign anything your spouse asks you to sign without reviewing it with a good divorce lawyer. Don’t let what your spouse tells you about “how it’s gonna be” upset or worry you. Don’t believe him/her when he/she says, “My lawyer says you must ______” or “I have the best lawyer in town.” Most of what your spouse tells you will be lies meant to intimidate, coerce, and dupe you. 

#3. Don’t take friends’ and family members’ advice as as substitute for the advice of a good attorney. Your friends and family members usually mean well, but have no idea what they’re talking about. 

#4. Keep an eye on your valuable things and information. They tend to disappear once a divorce is filed. Secure: 

  • your financial accounts against your spouse draining them; 
  • your important documents (this is not an exhaustive list): 
    • tax records 
    • loan/debt records, loan and credit applications 
    • appraisals/valuations 
    • bank/financial institution records 
    • insurance records 
    • birth certificates 
    • Social Security cards 
    • passports (for you and the kids) 
    • pay stubs 
    • account statements 
    • certificates of title 
    • estate planning records 
    • business records 
    • medical and health care records (for every member of the family) 
    • photographs 
    • your prenuptial or postnuptial agreement, if you have one 
    • etc. 

Inventory everything (take videos and photographs of it all) that you own (both jointly and separately); 

  • make sure your password-protected accounts (e-mail, cell phone, social media, credit cards, bank/financial institution accounts, bills to pay, financial accounts, credit cards, etc.) cannot be accessed by your spouse without your advance knowledge and consent; 
  • route your personal mail to a P.O. Box to which only you have access; 

#5. Don’t act out of fear or anger or revenge. If you do, you may do your case irreparable damage. Keep a cool head. Get a good divorce attorney’s advice. 

#6. Talk to a good divorce lawyer (not just any lawyer, not just any divorce lawyer, but a good divorce lawyer) now. Right now. Not next week. Now. Right now. Pick up the phone and make an appointment with a good divorce lawyer right now. Timing can and usually is crucial in divorce. 

  • The longer you put off speaking with a good divorce lawyer the more you lose (possibly forever) the benefits of knowing what you can and should be doing right now to protect and preserve your interests and those of your children (if you have minor children). 
  • Notice that I did not write “hire a good divorce lawyer right now.” If you can hire a good divorce lawyer right now, do it. The sooner you get competent legal representation the better. No exceptions. 
  • But if you do not have (or falsely believe you do not have) the money to afford a good divorce lawyer, scrape together enough money to meet and confer with a good divorce lawyer for an hour. It will be one of the best investments you ever make. 
    • A good divorce lawyer is not a bulldog. A good divorce lawyer is not a shark. a good divorce lawyer is not someone who is effective at cheating ( as the old Bosnian proverb goes, “He who will lie for you will lie to you.”) A good divorce lawyer is someone with experience, skill, and decency. These kinds of divorce lawyers exist, but are very hard to find. But they are worth finding. If you want your divorce to be less expensive, less time-consuming, and less miserable, find this kind of good divorce lawyer. 

#7. Unless you are young, penniless, childless, and convinced your spouse won’t or can’t hang you out to dry in divorce, don’t go the DIY route. Hire a good divorce lawyer, if at all possible. 

  • If you: 
    • earn money or receive money from other sources 
      • are self-employed 
    • own property of any kind 
    • have money in the bank, investment accounts, or tied up in a pension and/or retirement accounts 
    • have debts and obligations 
    • are financially dependent upon your spouse 
    • have a spouse who is financially dependent on you (in full or in part) 
    • have minor children 
    • are married to a malicious or crazy-malicious person 
      • have been accused of abusing your spouse or children, 

then odds are high that trying to divorce without a good lawyer’s representation throughout the divorce case is going to be absolutely miserable. 

https://megcartersspace.quora.com/What-advice-would-you-give-to-someone-who-has-just-become-one-of-the-parties-in-a-divorce-proceeding-3  

 Utah Family Law, LC | divorceutah.com | 801-466-9277   

Tags: , , , , , , , , , ,

Do attorneys ever have to represent relatives?

Do attorneys ever have to represent relatives or is that a conflict of interest?

I will give my personal opinion (as a lawyer, but not as a lawyer giving anyone any particular legal advice) as it applies in the jurisdiction where I practice divorce and family law (Utah).  

There is no inherent conflict of interest in an attorney representing a relative simply by virtue of the client being a relative. There is no inherent conflict of interest in an attorney representing a relative against another relative either simply by virtue of the client being a relative.  

If you learn that the opposing party’s attorney is a relative of that party, that is not a conflict of interest that would disqualify that attorney from representing that party.   

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Do-attorneys-ever-have-to-represent-relatives-or-is-that-a-conflict-of-interest/answer/Eric-Johnson-311  

Tags: , , , , , , , , ,

My question to Utah Office of Recovery Services (ORS):

Good morning, 

I am a divorce and child custody lawyer. I have a question that all of my clients ask me that I don’t have the answer to: 

“Why does ORS and/or the court need my child’s Social Security Number in a child support case? I can see why they would need the Social Security Numbers for both parents, but why for the kids?” 

It’s a good question. Do you know the answer why (other than “it’s in the rules”), and if you don’t, can you point me in the direction of who knows the answer? 

We are unable to answer this question on behalf of the courts, but can provide you some of the reasons why ORS needs a child’s Social Security Number.  

When ORS establishes legal paternity for a child, we are required to report the paternity establishment to vital records, and this process requires the child’s Social Security Number to be sent with the child’s other information (name, date of birth, etc.).  On the enforcement side, ORS is required to enforce medical insurance in conjunction with enforcing child support.  As part of this process we send the parent’s employer the National Medical Support Notice ordering the child to be enrolled in insurance. The form includes the child’s Social Security Number, because it is required to enroll the child in insurance. This is a federal form all child support agencies are required to use.   

Thank you for your time and email. 

Customer Service 

Office of Recovery Services 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

Tags: , , , , , , , ,

How much should you trust your lawyer? Part 2

This blog is in response to a comment made to a  video entitled How much should you trust your lawyer?

“The biggest problem I’ve encountered with attorneys isn’t legal competence but the “to a hammer, everything looks like a nail” problem. Emotions not motions is often the answer.”

I hear that frequently. And it is a good point, but 1) it means different things to different people and 2) it’s not as good a point an many people (particularly clients of lawyers) think.  

Yes, there are attorneys who stir up trouble and litigate either because they know no other way or because it’s lucrative for them. But there are also attorneys who aren’t afraid to get their hands dirty and do the necessary and difficult work of making the sausage once a dispute is submitted to the court’s for resolution. Many clients find they don’t have the stomach for seeing how the sausage is made. They come to realize they didn’t understand just how difficult, time-consuming, and costly litigation is. Rather than admit that they made a mistake, they will often claim that the lawyers and the legal system are the problem.* 

Many clients want to believe that “if we’d just talk it out, the opposing side and I could work it out.” This is true in some, but not all, cases. If “we can work it out between us ourselves, without involving attorneys and the courts” were true, most people who hire lawyers wouldn’t hire lawyers because they would have no reason and no need to hire lawyers.  

The fact is that many people can’t or won’t resolve their differences voluntarily between them. They take positions that they feel are irreconcilable, and when that happens, one or both of them resorts to litigation. 

Subsequently, the clients who hire lawyers get frustrated (and many times justifiably so) with how needlessly and/or inexplicably expensive, slow/inefficient, and nerve wracking the legal process is. That’s often when the parties on both sides of the dispute suddenly “see the light” and “wonder why” they are engaged in litigation when all they need to do is speak from the heart.  

Experiencing the miseries of litigation often motivates the parties to believe it’s better for them to settle out of court. Somehow they come to see that a dispute that the parties thought was irreconcilable becomes something they can and should quickly and simply compromise.  

*I personally believe that many court procedures and systems are either outright designed or at least administered in such a way as to make the process miserable, so that the parties will settle their case out of court (thus relieving the burden on the legal system). This is wrong, but that doesn’t mean it doesn’t happen.  

Utah Family Law, LC | divorceutah.com | 801-466-9277  

From: https://www.quora.com/How-much-should-you-trust-your-lawyer/answer/Eric-Johnson-311  

Tags: , , , , , , ,

How much should you trust your lawyer?

The more power to be entrusted, the higher the stakes, the less I trust anyone under such conditions. 

Many of us find or will find ourselves in a situation where we must retain an attorney’s services. Essentially, it must be done, we have no real choice. Not retaining an attorney is worse than going it alone. 

Even then, hiring a lawyer does not relieve you of responsibility for your own case, of responsibility for protecting/advancing your interests. A good lawyer is a means of improving and augmenting your ability to do this, but only as long as you remain vigilant personally. If you don’t understand what your lawyer is doing or advising you to do, but “trust” that your lawyer is doing right by you, you’re just being lazy. If and when you fail to make informed decisions, you’re needlessly risking disappointment and failure, and that’s on you. You are responsible to find the best lawyer you can. I consider a good lawyer to be someone who is as honest and fair as he/she is skilled as a jurist and litigator. Don’t hire a mercenary, a shark. This calls to mind the proverb “He who will lie for you will lie to you.” 

Remember: a lawyer you can and should trust is not a lawyer who is infallible. Even the most trustworthy, skilled attorney cannot control the opposing parties, witnesses, law enforcement and court personnel, or the judge(s). Sometimes an attorney’s best advice fails. Any choice as to how to handle a legal matter is not without trade-offs and risks. That’s not a matter of how trustworthy your lawyer is. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/How-much-should-you-trust-your-lawyer/answer/Eric-Johnson-311

Tags: , , , , , , , , ,

Is it illegal for a lawyer to charge their ex client for a copy of their case file?

Is there anything illegal about a previous lawyer wanting to charge their ex client for a copy of their case file?

I can’t answer for all jurisdictions, but in Utah the answer is: 

  • If you were previously given your case file or previously given a copy of your file—and lost those—so now you want another copy of your file (and assuming your lawyer still has a copy of your file), then it’s fair for your former lawyer to charge you a reasonable fee for the cost of making you another copy of your file. You’re not entitled to a free copy or copies. 
  • If you were not previously given your case file or previously given a copy of your file, then Rule 1.16(d) of the Utah Supreme Court Rules of Professional Practice – Rules of Professional Conduct provides: “The lawyer must provide, upon request, the client’s file to the client. The lawyer may reproduce and retain copies of the client file at the lawyer’s expense.” Thus, if you have not requested a copy of your file, you are entitled to your file (not a copy, the file itself). 
    • How long must your attorney keep your file after representation terminates? I’ve been told no less than three and no more than five years. Rule 1.15(a) provides, “[O]ther property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.” So if representation terminated more than 5 years ago, your old lawyer is not required to keep your file any longer, and so if you want a copy of your file then, you are likely out of luck. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-there-anything-illegal-about-a-previous-lawyer-wanting-to-charge-their-ex-client-for-a-copy-of-their-case-file/answer/Eric-Johnson-311  

Tags: , , , , , , , ,

Would the divorce rate drop if the parties had to see a psychologist first?

What do you think would be the rate of divorce in marriages if psychologists were to be consulted in court by couples before proceeding to see the lawyer for divorce?

Your intentions are good, your proposal won’t work. 

Short answer: forcing people to consult a psychologist as a prerequisite to obtaining a divorce would A) likely cause no appreciable reduction in the divorce rate and B) would surely not justify the costs associated with it. 

You appear to base your idea on several false assumptions: 

  • First, that professionals are infallible. They are not. That includes psychologists. Merely consulting a psychologist does not mean you will get competent care or advice from any and all psychologists. And the purpose of psychologists isn’t to talk people in or out of anything anyway, so forcing people to speak with a psychologist with the goal of reducing divorce likely would present some ethical conflicts that would cause many psychologists to balk. 
  • Second, that nary a professional (including psychologists) is motivated by self-interest. Plenty are. Some psychologists know that if they advocate for more psychologist involvement in the court systems, then that means more work for psychologists through the court systems. And so they do and say what they need to do and say to keep the work flowing, regardless of whether they feel that what they do and say is what is needed or warranted. 
  • Third, that most divorces are due to mental illness or other mental or emotional pathologies or disorders. While many divorces can be traced to mental and/or emotional problems in one or both spouses, not every divorce can be. Thus, requiring everyone who files for divorce to consult a psychologist would be a waste of time, money, and resources. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-do-you-think-would-be-the-rate-of-divorce-in-marriages-if-psychologists-were-to-be-consulted-in-court-by-couples-before-proceeding-to-see-the-lawyer-for-divorce/answer/Eric-Johnson-311 

Tags: , , , , , , , , , ,

Is the percentage of married people getting a divorce still about 50%?

Is the percentage of married people getting a divorce still about 50%, or is it now higher?

It’s actually a bit less than 50% currently and for the past few years. This is likely not because fewer people are divorcing as it is because fewer people are marrying in the first place. 

Addendum: I’ve seen claims that the COVID-19 pandemic has caused a spike in divorce filings. That makes sense, but I haven’t seen it personally. That may be due to the bulk of the spike consisting of divorcing couples handling their divorces without a lawyer. I don’t know, but that makes sense too. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-the-percentage-of-married-people-getting-a-divorce-still-about-50-or-is-it-now-higher/answer/Eric-Johnson-311 

Tags: , , , , , , ,

Law from a legal assistant’s point of view, week 48

Law from a legal assistant’s point of view, week 48: Personal Statement for Law School 

By Quinton Lister, legal assistant  

My time as a legal assistant to attorney Eric Johnson has served the exact purpose I was hoping it would. I wanted to gain experience in the legal field before starting law school. I have now been accepted to Arizona State University Sandra Day O’Connor College of Law and will be attending starting this fall. In honor of that, my blog post this week will be my personal statement I used for my law school applications: 

The serenity prayer, attributed to Reinhold Niebuhr, says, “God, grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to know the difference.” I have needed each part of this prayer at different times in my life. As I have applied the three elements of this prayer, I have found healing for myself, and I know that other people deserve to experience the same. I can help bring this healing to others by practicing law. 

First, “grant me the serenity to accept the things I cannot change.” This was difficult for me to accept because I did not like to think I could not change certain things. I am an American, and I have been taught from my youth that my choice is paramount in everything I do. And I believe that I have the power to make whatever choice I want. However, I have had to learn that even though I always have my choice, I cannot eliminate the consequences of my choices. For instance, I regret not playing hockey when I was younger. I love hockey, and I am one of the few American boys born in the 90s whose favorite athlete was Joe Sakic and not Michael Jordan. I cannot go back and choose to play hockey now and accepting that helps me change my mindset. Instead of dwelling on what could have been, I can now focus on enjoying things like acting, singing, and dancing. Things I did as a youth, and that enhance my life now. That acceptance brings healing, and I think that by helping people see they cannot always change the consequences of the law, I can bring this essential healing as a lawyer. 

Second, “courage to change the things I can.” To me, this means I have responsibility when I want to see a change in my life. For instance, when I served a two-year mission for my church in Hungary, I did not speak Hungarian well at first. I would say that I was like a child, but even Hungarian children can communicate with words instead of pointing and acting out what they mean to say. Despite the struggle, and because of my love for my faith and the people of Hungary, I did everything it took to improve my language skills throughout my mission. I worked at it every day and persevered until I could confidently hold a real conversation with any Hungarian I met (even the children). The work I put in to get better at the Hungarian language helped create closer relationships with others and built my confidence. These things are examples to me of the healing that comes when I accept responsibility for what I can do for myself. People need good lawyers to help them do what they can for themselves in a lawsuit, and I can offer people this necessary healing through practicing law. 

The final principle of the serenity prayer, “and wisdom to know the difference”, has been crucial to me in my relationships with others. I have learned that I cannot control how other people react to me or what they think about me, but sometimes I forget that I cannot control these things and I need wisdom to keep myself from trying to manipulate other’s reactions and emotions. For instance, I used to work with my brother at a company he started in college. We did not have the healthiest dynamic as kids and I could tell this was playing out in our professional lives together. I had to quit, but I was scared to tell him because I thought he would “freak out.” I needed wisdom to tell him I was quitting while allowing him to have whatever reaction he wanted. It turned out, he felt the same way I did, and it helped bring healing to our relationship. A good lawyer helps their client find the same healing by helping them exercise wisdom to know how they should or should not act, and that’s why I want to pursue the law as a career since I know other people would benefit from that. 

The serenity prayer has been a guiding influence in everything I do, and I have been blessed with healing by choosing to follow these principles in my life. I am immeasurably grateful for this healing, and I want to share this with others because it will help them. I know these principles paired with law degree can help me be a “healer” for other people in my own way. 

Utah Family Law, LC | divorceutah.com | 801-466-9277 

Tags: , , , , , , , ,
Click to listen highlighted text!