Tag: change

Does it take time to move on after a midlife divorce?

For most people, generally yes. However one may define “move on,” the longer one is married (especially when the couple has lived together for the duration of the marriage and has had children), a divorce is a major upheaval in one’s life. Divorce after a long marriage brings with it changes in your life you may have expected, but many changes that you did not. With extraordinarily rare exception, there are adjustments to be made, it takes time to process its occurrence and effects. Some people are surprised to find out how hard it is to confront and adjust to divorce. 

A long but miserable marriage is one to which most people make many and many shocking subconscious accommodations. Like an addict, they suffer “withdrawal symptoms” as they detoxify, going through periods of doubt, regret, loss, grief, etc., even when they know in their heads that the divorce is the part of the “treatment,” some of the “medicine” they need to be healthy and whole again. 

Many people who divorce after a long marriage may be shocked to learn that their spouses and/or marriages were not the source or an aggravating factor regarding the malaise, dissatisfaction, or depression they are experiencing. It’s gut wrenchingly tragic when people divorce in the false/mistaken belief that divorce is the cure when their loving, supportive spouses were one of the best, if not the best, things they had going them. Fortunately, even those who foolishly, needlessly divorce can recover. Some people are fortunate enough to remarry their ex-spouse. Regardless, we all make mistakes in this life. Some big, some minor. But most are not wholly irreparable, thank goodness. Divorce need not be an exception. 

Utah Family Law, LC | | 801-466-9277  

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What are the significant changes to family law in the past two centuries?

What are the most important changes to the family law in the 19th century and 20th century up to today, and why?

In my opinion (and in no particular order): 

  1. No-fault divorce
  2. Abolition of the doctrine of coverture (femme couvert) 
  3. Tender Years doctrine (and the abrogation of the Tender Years doctrine) 
  4. Statutory child support 
  5. Same sex marriage 

We need to get one misconception out of the way immediately, and that is that wives were treated as the husband’s property in the past. They were not. 

This does not mean that women were treated differently than men and husbands under the law, but women were not treated as their husbands’ property and unmarried women could own property and enter into contracts. See Husband and Wife Are One–Him: Bennis v. Michigan as the Resurrection of Coverture (4 MIJGL 129, Amy D. Ronner Michigan Journal of Gender & Law) 

At common law, an adult single woman could own, manage and transfer property. She could sue and be sued. She could likewise earn money and enjoy it as her own. Once that same woman married, however, her status changed radically; coverture subsumed her legal identity into her husband’s. 

Blackstone described coverture status as follows: 

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an [sic] union of person in husband and wife, depend almost all the legal rights, duties and disabilities, that either of them acquire by the marriage. The coverture doctrine prevented a man from granting anything to his wife or from entering into a contract with her. Such actions would be futile because they would “suppose her separate existence . . . and to covenant with her, would be only to covenant with himself.” 

The coverture merger was not mere metaphysics, but imposed real disabilities on the married woman. For example, a wife relinquished the control of her real property to her “baron” and although he could not alienate the rents and profits, he was not obligated to account for them to her. Moreover, her husband enjoyed complete control of his wife’s interests, which meant that he could alienate them and unilaterally pocket the proceeds. All chattels that a woman owned at the time of marriage and those she acquired thereafter belonged to her husband. The suspension of a wife’s legal identity also meant that she could not sue or be sued at law unless her husband had joined in the action or “ha[d] abjured the realm, or is banished.” 

Coverture prohibited husband and wife from testifying for or against each other in trials “principally because of the union of person.” That is, such testimony would be irrebuttably presumptively self-serving or self-incriminating. In criminal law, a husband and wife could not comprise a conspiracy because one person could not conspire with himself. They also could not steal from one another because the property belonged essentially to only one–him. In other situations the wife was utterly divested of free will and viewed as “inferior to him, and acting by his compulsion.” For example, because certain criminal acts on her part, short of treason or murder, were viewed as if done under his “command,” coverture bestowed upon the married woman a specie of immunity. 

Utah Family Law, LC | | 801-466-9277  

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How easy is it to change your child’s last name?

I cannot answer this question as it applies in all jurisdictions, but I can answer the question as it applies in the jurisdiction where I practice divorce and family law (Utah): 

Here are the applicable Utah Code sections: 

42-1-1. By petition to district court — Contents. 

Any natural person, desiring to change his name, may file a petition therefor in the district court of the county where he resides, setting forth: 

(1) The cause for which the change of name is sought. 

(2) The name proposed. 

(3) That he has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 

42-1-2. Notice of hearing — Order of change. 

The court shall order what, if any, notice shall be given of the hearing, and after the giving of such notice, if any, may order the change of name as requested, upon proof in open court of the allegations of the petition and that there exists proper cause for granting the same. 

42-1-3. Effect of proceedings. 

Such proceedings shall in no manner affect any legal action or proceeding then pending, or any right, title or interest whatsoever. 

That seems fairly easy, right? I agree, it does seem easy (it deceptively seems easy), and if all you needed to do was go by what the Utah Code says is required of you to get a name change, you’d be right. But for reasons I do not understand, there are many “unwritten rules” governing a name change in Utah, whether for an adult or a minor child. Otherwise stated, if all you did was: 

  • file a petition in the court stating: 
    • the cause for which the change of name is sought; 
    • the name proposed; 
    • that you or your minor child have/has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 
  • schedule the hearing on the petition; 
    • prove three allegations that you were required to make in the petition; 
    • prove that there exists “proper cause” (whatever that means) for granting the petition for change of name;

that should be all you need to do, according to the Utah Code. But if that is all you did, there is a good chance your petition would be denied. So what are the “unwritten rules” you need to abide by to get a name change for yourself or your minor child? A good place to find out is here: 

Utah Family Law, LC | | 801-466-9277  

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Law from a legal assistant’s point of view, week 23: Injustice

By Quinton Lister, legal assistant

My blog post from this last week has got me thinking about the idea of injustice.  

So many issues in life are unfair. Even in a democratic republic like the United States of America, there has been a history of injustice and unfairness to so many despite the unparalleled freedom America provides and protects.  

But no system is perfect. That’s not just being trite, it is a profound reality. Externalities exist in this world because it is imperfect. Every good idea also has negative externalities or consequences.  

I do not deny bias and injustice exist. Even under the rule of law they still exist. But there is more and better justice than under the rule of a dictator or a tyrant.  

Still, how do we prevent and mitigate injustice? One way is to acknowledge injustice. We investigate it and we seek to understand it before we can take steps to resolve the problem itself. 

We also need to know what justice is and is not. We need to know the limits of earthly justice (and mercy).  

We need to be willing to change our beliefs and actions when they cause or foster injustice.  

We need to be people who desire justice and seek to be just ourselves, even when (especially when) justice may burden or injure us personally.   

In short, preventing injustice is a matter of personal responsibility. Only when people are committed to making a change in themselves can we hope that society (and the systems we have set up in society) will change. When people take responsibility to truly change for the better, society, which is the creation of the people, will have no choice but to follow. 

Utah Family Law, LC | | 801-466-9277

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Law from a legal assistant’s point of view, week 16: Self-awareness

By Quinton Lister, legal assistant

This new experience working in the legal field has been full of unexpected lessons. One is that it really does help to be self-aware. What I mean by that is that so often the things we struggle with are caused by ourselves. Therefore, in order to solve problems I often must look at myself and be willing to accept when I am causing problems. 

For instance, at my work if I am unaware of how to do something and I don’t have the first clue as to how to start I have to be willing to admit I don’t know where to start and I need help. I think the same is true in other aspects of life. If my relationship with my family is rocky, if I am having difficulty in my social circle, or whatever it might be I have to be willing to look at my part in the situation. This is not to say that I am always in the wrong, but I always have a part to play in my life because I am the one responsible for it. So, take that how you will but I did not expect to learn more about that when I took my current position, but life is funny like that. 

Utah Family Law, LC | | 801-466-9277

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Can I file for divorce and spousal support after being separated from my husband for 5 years?

This is an interesting question because if you have been financially independent of your spouse during your five year separation that implies that you don’t need financial support from your spouse.

Contrastingly, if for the past five years you have been destitute, have made requests of your spouse for financial support that your spouse has rejected, and have run up debts and other liabilities to meet your reasonable living expenses, then you would likely have a very strong basis for seeking alimony.

If, however, you have been separated from your spouse for five years and counting without having to rely for your financial support on a source other than your own income or other earnings in all that time, it is hard to imagine how you could make a compelling argument for deserving and alimony award.

One exceptional situation needs to be mentioned: if you have been self-supporting, but at a greatly reduced/lesser lifestyle, (i.e., you went from living at a certain level with your spouse because of your spouse’s affluence and ability to afford such a lifestyle to living more modestly on a modest income), then it may be possible for you to argue that you are entitled to alimony so that you can reach, or at least get as close as reasonably possible to, the lifestyle to which he became accustomed while married. One counter argument you could encounter (and I believe this argument would have merit) is that you have been self-supporting for so long — albeit at a lower level of income than you enjoyed before separation — that one can reasonably conclude that your change in lifestyle is no longer involuntary imposed upon you but a matter of your own personal choice.

And let’s and on a note of adding insult to injury: imagine that you had no choice but to pull yourself up by your own bootstraps after separation because your spouse refused to provide any financial support for you. Could you make some kind of argument that but for your spouse’s greedy neglect, you would have never needed to become self-supporting? In my legal opinion, the answer is: probably not. The court would not be looking to how or why you became self-supporting, and whether the circumstances under which you became self-supporting were “fair,” but only that you are now currently self-supporting.

Bottom line: if you have been living financially independent of your spouse for the past five years and counting, and if you are not living hand to mouth, it is unlikely that you will succeed in seeking and alimony award.

Utah Family Law, LC | | 801-466-9277

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Child refuses to leave noncustodial parent’s house. What happens now?

I am the noncustodial parent. Our child came to my house for parent-time and now refuses to leave because he wants to live with me. What happens now?

I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.

This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.

Now before some of you start licking your lips and scheming, thinking, “I’m the noncustodial parent, but I can change that by simply telling our child to choose to refuse to return to the custodial parent’s house,” you need to be aware of the realities.

If you’re the noncustodial parent and your child or children are under the age of 14 or so, and they claim that they don’t want to live with the custodial parent, there’s a very good chance that the court is going to believe that you are a puppet master who coached the children or otherwise induced or coerced them into claiming they want to live with you. That may not be true, but you’re going to be met with that kind of skeptical presumption. So if you are the noncustodial parent with young children who you assert claim they don’t want to live with the custodial parent, you have an uphill battle ahead of you. If you are the noncustodial parent and a father, you have an almost impossibly uphill battle ahead of you.

If, however, your children are 14 years or older, and you are the noncustodial parent with whom your children say they want to live, it will be harder for your ex and/or the court to presume that the children are lying and/or don’t have good reasons for wanting to live with you. Again, if you are the father making this claim, your claim will be met with more skepticism than if you were the noncustodial mother making such a claim. Why is this? Because there is a pernicious belief in the legal system that fathers are generally worse parents than our mothers, that fathers don’t want custody of their children, and that the only reason fathers would seek custody of their children is to avoid paying child support. As a result of these beliefs, fathers who seek custody of their children are met with not just skepticism, but often derisive skepticism. Forewarned is forearmed.

So, if you are a noncustodial parent who is good and decent, and your child honestly and sincerely comes to you saying, “mom/dad, I can’t stand living with the custodial parent anymore, and I want to live with you,” how do you proceed?

First, if the child refusing to live with the custodial parent because the child just wants to spend more time with you and/or less time with the custodial parent, and the custodial parent is not neglecting or abusing the child in any way, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge. At the same time, the custodial parent needs to acknowledge the child’s desires to spend more time with the noncustodial parent as being a legitimate concern that needs to be addressed and resolved, and that usually means the custodial parent agreeing to give the child and the noncustodial parent more time together. If the custodial parent refuses to do the right thing, you may ask whether it’s wise to petition the court for a modification of the child custody award, so that you and the child get more time together. Unfortunately, odds are that if you file a petition to modify child custody and the only basis for your petition is the child’s desire to spend more time with you, you will probably lose. While it is technically and conceivably possible to win such a petition, usually the courts in Utah require more than just the child’s desire as the basis for a modification. And what form does this “more” take? Typically, you would have to show that the custodial parent is neglecting and/or abusing the child to get a modification of the child custody award.

Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.

If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.

Utah Family Law, LC | | 801-466-9277

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An Honest Day’s Wages for an Honest Day’s Pay

An Honest Day’s Wages for an Honest Day’s Pay

Many professionals are encouraged to raise rates to the level that clients are willing to bear (and told this is the right thing to do), rather than charging what makes the professional’s services a true value for the client. It’s morally wrong and ultimately bad business to charge as much as the market will bear (it is not wrong to charge what your work/service is worth), but many professionals charge as much as they can get away with without even questioning why they do. If you are such a professional, ask yourself why you do that. Then repent and change.
Here’s an example of such a recommendation from a business consultant for attorneys. He’s not even trying to nuance or spin the idea:

Don’t Be Afraid to Raise Your Legal Fees

Utah Family Law, LC | | 801-466-9277

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Can I refuse visitation when a non-custodial parent refuses to take a child to school?

Can I refuse visitation when a non-custodial parent refuses to take a child to school?

In the jurisdiction where I practice divorce and family law (Utah), the answer is:

Unless you have a court order that allows you to refuse visitation (or “parent-time” as it is now called in Utah) if the other parent refuses to take the child to school, then NO. Utah law is very clear that the parent in your position cannot withhold or interfere with parent-time as a means of controlling or punishing the other parent.

But clearly your concerns about school attendance are valid ones. So what can you do about that? In Utah, you could:

  • file a motion with the court seeking to have the other parent who is failing/refusing to get the child to school held in contempt IF there is a court order already in existence that directs that parent to ensure the child gets to school on time on the mornings the child is with that parent.
  • If there is no court order already in existence that directs that parent to ensure the child gets to school on time on the mornings the child is with that parent, then you could file a petition with the court seeking to modify the child custody and/or parent-time award(s), alleging that because the other parent is failing/refusing to get the child to school the child custody and/or parent-time award(s) need to be modified to address and remedy this problem.

What you cannot do is take the law into your own hands and withhold or interfere with parent-time in response to the other parent failing to get the child to school.

Utah Family Law, LC | | 801-466-9277

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How can we change the court system in order to make divorces easier on the children?

How can we change the court system in order to make divorces easier on the children?

In my opinion:

  • Institute a “loser pays the prevailing party’s attorney’s fees” rule.
  • make divorce cases more litigant focused and tailored to meeting their needs and the needs of their family, instead of tailoring the cases for the convenience of the courts and lawyers;
  • focus making divorce cases take less time to work their way through the court system. This reduces anxiety and emotional distress, reduces costs, promotes just and equitable outcomes, and helps prevent other abuses of the legal system caused by delays;
  • require judges to make commendably detailed written findings of fact and conclusions of law to support their rulings on every issue in a divorce case;
    • rather than make the standard a negative one (i.e., the ruling stands unless it can be shown to be an abuse of discretion) require that they show that their rulings are as equitable as they could reasonably make them for the parties and their children under the circumstances;
  • subject to rigorous, forensic psychological examination and evaluation every litigant in a divorce case in which child custody is an issue and where accusations of any kind of physical, emotional/psychological, sexual, financial, or any other kind of abuse of spouse or children are made.
    • Find out whether the allegations are true
    • Find out if the accusations are sincere or motivated by malevolence and/or intent to defraud the court
    • Why? Because:
      • if you are falsely accused of abuse, it can too often be the seriousness of the allegations, as opposed to the substance of the evidence, that will determine how your judge rules.
      • far too often courts, when confronted with allegations of abuse, take the easy way out and err on the side of caution, the “better safe than sorry” approach (and thus treat those accused of being abusive as abusive) instead of having the guts to say, “the evidence is insufficient to support these abuse allegations, and so if you really are a domestic violence abuse victim, I can’t find as a matter of fact that you are.” That’s a gross miscarriage of justice when that happens, but it’s what some judges do in these circumstances.
  • All but mercilessly punish litigants and witnesses who lie to the court. The purpose of our justice system is to get to the truth and then apply the law based upon the facts as best we can know them. “Perjury is considered a serious offense, as it can be used to usurp the power of the courts, resulting in miscarriages of justice.

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Should I be nice to my spouse during a divorce?

That depends on what you mean by “nice”.

Do you mean “with kindness”? Not necessarily kindness, but certainly decency. You are morally obligated to treat your spouse with decency, but you don’t have to go out of your way to make the spouse you are divorcing happy. You don’t have to capitulate to your spouse’s unfair or unreasonable demands.

Do you mean “with honesty and fairness”? If so, then yes: you are morally obligated to be honest and fair with everyone, but again aren’t obligated to capitulate to your spouse’s unfair or unreasonable demands, nor are you in any way obligated to tolerate being treated unfairly by your spouse.

Do you mean “forgiving”? If so, then yes: you are morally obligated to forgive your spouse for the wrong’s he/she did you, but forgiveness does not mean “acceptance”. Forgiving the people who have deceived or betrayed me in the past does not require me to trust them in the future. I forgive them so that I don’t dwell on the hurt done to me, so that I don’t let the injury continue to harm me, so that the one who did me wrong is shown the mercy needed to give him/her the best opportunity to change for the better without eternal regret or shame hampering the repentance process.

Fighting fire with fire will only intensify the pain and misery. Being the better man (or woman, as the case may be), living up to your virtuous values and standards of conduct is the only way to move on with peace and happiness (and you can get back there). Easier said than done, yes, but the only way.

Utah Family Law, LC | | 801-466-9277

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What is the safest way to break up with an abusive partner?

What is the safest way to break up with an abusive partner? I heard many horror stories and afraid I might be next.

While there is no one “proper” way to break up with an What is the safest way to break up with an abusive partner,

Robert McQueeney’s answer on this thread is a good one:

The safest way? When the opportunity presents itself, never put material belongings over your life. Just leave. Don’t waste time packing everything, just take what you need and go, immediately. Grab any important papers, of course.

Ghost your way out of there. Change jobs, change locations, shucks, change states if you have to. Change your phone, ghost your way out of any social media.

Don’t say anything to him, get real devious with your life, it may well depend on it. Don’t try to get any satisfaction of telling your partner to their face that you are out of there. Just leave and do it quickly and expediently.

Furthermore, I’d add two things:

  1. Don’t expect the legal system to be much, if any, help to you in the process. The legal system was not designed to help you in this situation as well and as fast as you can help yourself. Don’t try to vindicate yourself through the legal system. Work out your problems without involving the legal system any more than you must. It’s slow, expensive, and not consistently fair. Don’t break the law, but don’t expect the legal system to help you. Help yourself.
  2. Be prepared to pay the costs associated with breaking free. You may have to leave personal property behind because it may prove too hard to slip away with the stuff that’s rightfully yours. If you have to change your job and residence, you may take a hit on your pay and end up in crappier lodgings as you re-build. Understand that this is for most the cost of freedom and peace of mind—and that’s worth the cost.

Utah Family Law, LC | | 801-466-9277

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What can we do about the laws that are outdated about taking custody of a child?

What can we do about the laws that are outdated about taking custody of a child?

  1. In a clear and concise manner write to A) your state legislators, and B) the judges in your state explaining what law(s) you want to see changed, why the change is warranted, and what you suggest the change be.
  2. Find out when your state legislature is in session, and when it is in session, attend the public hearings on proposed new legislation, giving your legislators 1) arguments as to why they should or should not support the proposed new legislation; and 2) suggested amendments that may improve upon the proposed new legislation.
  3. Form or join or support (with volunteer time and money) a group that advocates reforming and revising child custody laws that are unfair and/or out of date. One of the best is the National Parents Organization. They are a national organization that also sponsors local chapters. You can find them at https://nationalparentsorganizat….
  4. Find and support experts on child psychology and child development who can testify in court and in legislative sessions and show judges and legislators what the outdated notions of what is best for child are and what the truly good, rigorous science shows is best.

Utah Family Law, LC | | 801-466-9277

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