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Erickson v. Erickson – 2022 UT App 27

THE UTAH COURT OF APPEALS

DEAN ERICKSON,

Appellee,

v.

JANICE ERICKSON,

Appellant.

Opinion

No. 20200193-CA

Filed March 3, 2022

Third District Court, Salt Lake Department

The Honorable Todd M. Shaughnessy

No. 174901105

Albert N. Pranno, Attorney for Appellant

Jordan M. Putnam, Attorney for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

FORSTER concurred. HAGEN, Judge:

¶1        During their thirty-four years of marriage, Dean and Janice Erickson acquired substantial assets, including a veterinary pharmaceutical business.[1] But, in anticipation of their divorce, Janice engaged in an intentional scheme to dissipate those assets and devalue the marital estate. Solely because of Janice’s misconduct, the district court appointed a receiver, ordered a valuation of the couple’s business, and sanctioned Janice with the obligation to pay all Dean’s attorney fees and costs.

¶2        Janice now contends that the court erred when it failed to deduct her personal goodwill when calculating the value of the couple’s business, excluded her rebuttal expert on valuation, and imposed sanctions against her that were greater than the injury her misconduct caused Dean. We affirm on the first two issues and remand on the third.

BACKGROUND[2]

¶3        Dean filed for divorce from Janice in early 2017. The couple’s marital estate consisted of substantial assets, including a veterinary pharmaceutical business, Meds for Vets, LLC (Meds). Meds “is a pharmaceutical compounding business with many employees.” The company “does the majority of its business online through its website” and sells “to customers throughout the country.” At the time of the divorce, Meds employed three pharmacists who held the necessary licenses to conduct the business. Janice was one of those pharmacists and held “the majority of the licenses.” Janice also functioned “as the sole manager and chief executive officer of Meds.”

¶4        Around the time Dean filed for divorce, Janice entered into a series of fake business contracts with a friend for the purpose of dissipating marital assets. Dean moved the court for a temporary restraining order, asking the court to appoint a receiver for Meds. The court denied the temporary restraining order but appointed a receiver for Meds in an effort “to prevent further irreparable injury/harm to the marital estate through waste/dissipation of marital assets.” At the recommendation of the receiver, Janice was allowed to continue her role in the company due to her “familiarity with the industry, regulatory environment and existing relationship[] with the customer base . . . so as to not disrupt [Meds’] operations and employees.”

¶5        In addition to the oversight of Meds, the receiver had authority to conduct an “investigation concerning whether and how the joint marital assets . . . were used or misused and how to effectively separate the parties and their marital estate in all business regards.” In its final report to the court, the receiver concluded that Janice had dissipated known marital assets totaling $2,247,274. Janice accomplished that feat, in part, by unilaterally entering into a fraudulent “business relationship which resulted in a substantial and ongoing dissipation of marital assets.”

¶6        The receiver was also charged with “perform[ing] a valuation of the normalized operation of Meds.” The final report included a business valuation placing Meds’ value at $1,560,000. The valuation report explained the different factors considered, including “whether or not the enterprise has goodwill or other intangible value.” Ultimately, the valuation did not include any amounts associated with goodwill.

¶7        The court scheduled a trial on December 2, 2019, the Monday after the Thanksgiving holiday, to determine the final division of the marital estate. The pretrial disclosure deadline was set for November 4, but Janice moved to extend the deadline. The court granted her motion, extending the deadline to Tuesday, November 26 at 5:00 p.m.

¶8        Just before 5:00 p.m. on November 26, Janice filed a disclosure that identified a valuation expert she intended to call as a rebuttal witness. But she did not serve the disclosure on Dean’s attorney until after the deadline had passed. In addition, she did not provide the expert’s report to Dean’s attorney until the afternoon of Wednesday, November 27—the day before Thanksgiving and less than five days before trial.

¶9        On the first day of trial, Janice asked to call her valuation rebuttal expert as the first witness because it was the only day he was available to testify. Dean objected to the admission of the expert’s testimony because it was untimely disclosed, giving Dean insufficient time to prepare. The court allowed Janice to call the expert out of order and reserved its ruling on Dean’s objection until after the expert testified. During his testimony, the expert opined that the receiver’s valuation had overstated Meds’ value as an ongoing business by improperly considering Janice’s personal goodwill.

¶10 The court ultimately excluded the expert’s testimony based on Janice’s untimely disclosure. See Utah R. Civ. P. 26(d)(4) (“If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.”) The expert had testified that it had taken him only a few weeks to prepare his report, but that Janice had not hired him until shortly before trial. Accordingly, the court found that Janice “had ample opportunity to seek an independent valuation of the marital businesses at her own expense” and noted that it had “addressed this issue with [Janice] several times.” The court further found that Dean had an “understandable inability to be able to fully address [that information] in the limited time that remained prior to trial.”

¶11 The court alternatively ruled that even if it had not excluded Janice’s valuation rebuttal expert as untimely, his testimony was unpersuasive. The court rejected the expert’s opinion, based on Janice’s own representations, that Meds’ value was dependent on Janice’s personal goodwill. The court noted that Utah case law generally associates personal goodwill with “sole proprietorships essentially run by one person” and that such businesses are not “comparable to the situation here with [Meds].” The court also found that it had “not been provided any evidence from which [it could] draw a conclusion that [Janice’s] presence at [Meds], given the point to which its grown, is essential for that business to continue, given the number of employees and the extent of the operations that it has.”

¶12 After trial, the court entered a supplemental decree regarding the division of marital assets. The court “affirm[ed] and accept[ed] all recommendations, valuations, findings, and conclusions contained” in the receiver’s reports, unless the decree stated otherwise, “and incorporate[d] them by reference” into the decree, including the receiver’s $1,560,000 valuation of Meds.

¶13 Due to Janice’s “intentional efforts to dissipate marital assets,” the court also assigned the cost of the receivership and Dean’s attorney fees to Janice as a sanction for contempt and other misconduct. The court found that Janice’s behavior was sanctionable because she “engaged in substantial dissipation of marital assets” that was, “in some cases, in direct violation of this Court’s orders.” Indeed, “the approximately $2.5 million [she] dissipated . . . was one of the largest, if not the largest, blatant dissipation of marital assets the Court ha[d] ever seen.”

¶14 With respect to Dean’s legal fees, the court found that Janice’s contemptuous conduct forced Dean to incur “extraordinary legal costs in enforcing Court orders and attempting to track down and preserve marital assets” and that a “substantial amount of additional work [was] required to address the dissipation issues in this case” because of Janice. The court found that it was therefore appropriate and equitable to assign all Dean’s attorney fees to Janice because “[t]he lion’s share of [Dean’s] legal costs were incurred in connection with issues surrounding the dissipation of marital assets and the nefarious conduct engaged in by [Janice] in this case.”

¶15 More than three months after trial, Janice filed a motion for new trial pursuant to rule 59 of the Utah Rules of Civil Procedure, arguing that there was irregularity in the trial proceedings, that there was insufficient evidence to support the valuation of Meds, and that the court erred in awarding Dean attorney fees. The court dismissed that motion as untimely without reaching the merits.

ISSUES AND STANDARDS OF REVIEW

¶16 Janice now appeals, raising three issues. First, she contends the district court erred in the value it assigned to Meds because it failed to exclude the value of her personal goodwill. A district court is “entitled to a presumption of validity in its assessment and evaluation of evidence, and we defer to the district court’s findings of fact related to property valuation and distribution unless they are clearly erroneous.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 10, 440 P.3d 757 (cleaned up).

¶17 Second, she contends the court erred in excluding her valuation rebuttal expert as a sanction for untimely disclosure. “We review a district court’s decision [to impose] sanctions under rule 26(d)(4) for an abuse of discretion.” Segota v. Young 180 Co., 2020 UT App 105, ¶ 10, 470 P.3d 479 (cleaned up). We will find abuse of discretion where there exists an erroneous conclusion of law or “where there is no evidentiary basis for the trial court’s ruling.” Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 15, 438 P.3d 25 (cleaned up), aff’d 2020 UT 59, 472 P.3d 927.

¶18 Third, she contends that the court erred when it ordered her to pay all Dean’s attorney fees and costs, rather than limiting the award to the amounts caused by her sanctionable conduct. “Both the decision to award attorney fees and the amount of such fees are within the sound discretion of the trial court.” Taft v. Taft, 2016 UT App 135, ¶ 86, 379 P.3d 890 (cleaned up).

ANALYSIS

I. The Valuation of Meds

¶19      In her challenge to the district court’s valuation of Meds, Janice argues that the court failed to consider the value of her personal goodwill.[3] “When valuing a business in marriage dissolution cases, district courts must consider whether goodwill is institutional or personal to one spouse.” See Marroquin v. Marroquin, 2019 UT App 38, ¶ 15, 440 P.3d 757. Goodwill is personal when the business “is dependent for its existence upon the individual who conducts the enterprise and would vanish were the individual to die, retire or quit work.” Stevens v. Stevens, 754 P.2d 952, 956 (Utah Ct. App. 1988). Personal goodwill is based on an individual’s “reputation for competency.” Marroquin, 2019 UT App 38, ¶ 15. And unlike institutional goodwill, personal goodwill is not subject to distribution in the marital estate. Id.

¶20      Janice contends that the district court erred as a matter of law by failing to consider whether the value of the business depended on goodwill that was personal to her and thus not divisible. We disagree. The district court did consider goodwill in valuing the business, but specifically found that there was no personal goodwill associated with Meds. Unless the court clearly erred, we presume this assessment is valid and we defer to its findings. See id. ¶ 10.

¶21      In finding that there was no personal goodwill associated with Meds, the court rejected Janice’s contention that Meds was comparable to a sole proprietorship and that her “personal goodwill, as opposed to entity or enterprise goodwill,” should have been excluded in valuing the company. The court concluded that Meds was unlike “sole proprietorships essentially run by one person”—where the value of the company rests primarily on the work and professional reputation developed by the proprietor—“given the number of [Meds] employees and the extent of its operations.”

¶22 On appeal, Janice claims that the court failed to consider the personal goodwill engendered by her own “management and licensure role” in Meds. Before the receiver’s appointment, Janice “had acted as sole manager and chief executive officer of the company,” but there was no evidence to suggest that placing someone else in that role would diminish the value of the company. Indeed, the court specifically found that it had not been “provided any evidence from which [it could] draw the conclusion that her presence at the business, given the point to which it’s grown, is essential for that business to continue given the number of employees and the extent of operations it has.” Janice has not demonstrated that those findings were clearly erroneous.

¶23 As evidence of her personal goodwill, Janice cites the receiver’s report that some Meds employees “attributed the company’s declining revenue, in part, to [Janice] being distracted by the divorce.” But the decline in Meds’ revenue during this period does not suggest that the company’s value was dependent on Janice being in a management role. To the contrary, the court found that Janice’s continued involvement was detrimental because she “continue[d] to take steps to harm and devalue” Meds, even after the appointment of the receiver. In other words, Meds’ declining revenue during that time was caused not by Janice’s inattention to her management role, but by her deliberate efforts to devalue the company.

¶24 Janice also points to the fact that the company used her licenses to operate in multiple states. The court found, however, that Meds holds the necessary pharmacy licenses among three pharmacists. And there was no evidence that Janice’s licenses could not be obtained by the other pharmacists already on staff or that Meds could not hire a replacement pharmacist with those licenses. Thus, the fact that some licenses were historically held by Janice does not undermine the court’s finding that the value of Meds as an ongoing business did not depend on Janice’s involvement.

¶25 In sum, the record shows that the court considered and rejected Janice’s contention that her personal goodwill was included in the valuation of the business, and Janice has not shown that those findings were clearly erroneous. Therefore, there is no basis on which to disturb the court’s valuation of Meds.

II. Excluding Janice’s Rebuttal Expert

¶26 Next, Janice challenges the court’s ruling excluding her valuation rebuttal expert based on her untimely disclosure. Expert disclosures are governed by rule 26 of the Utah Rules of Civil Procedure. Under that rule, proper disclosure of an expert witness requires the timely disclosure of “(i) the expert’s name and qualifications, . . . (ii) a brief summary of the opinions to which the witness is expected to testify, (iii) the facts, data, and other information specific to the case that will be relied upon by the witness in forming those opinions, and (iv) the compensation to be paid for the witness’s study and testimony.” Utah R. Civ. P. 26(a)(4)(A). “If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.” Id. R. 26(d)(4). “Thus, Utah law mandates that a trial court exclude an expert witness disclosed after expiration of the established deadline unless the district court, in its discretion, determines that good cause excuses tardiness or that the failure to disclose was harmless.” Solis v. Burningham Enters. Inc., 2015 UT App 11, ¶ 21, 342 P.3d 812 (cleaned up); see also Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 22, 438 P.3d 25 (“[I]f a party fails to disclose or supplement a discovery response, the evidence or testimony may not be used.”), aff’d 2020 UT 59, 472 P.3d 927.

¶27 Janice does not dispute that the disclosure of her valuation expert and his report was untimely. The question is whether Janice established an exception to the otherwise mandatory sanction of exclusion under rule 26(d)(4). We conclude that the district court did not exceed its discretion in rejecting Janice’s claim that her untimely expert disclosure was either harmless or justified.

¶28 First, the record amply supports the court’s conclusion that the untimely expert disclosure was not harmless. The court enlarged Janice’s time to serve her disclosures, extending her deadline from November 4 to November 26 at 5:00 p.m.—a mere six days before trial. On November 26, “shortly before 5:00 p.m.” Janice filed her expert disclosure with the court, but she did not serve that disclosure on Dean’s counsel until after the 5:00 p.m. deadline. Moreover, she did not serve the expert report until the following afternoon, the day before Thanksgiving. The timing left only the holiday weekend for Dean’s counsel to review the expert report and prepare to meet that testimony before the trial began on Monday. On the first day of trial, Janice called her rebuttal expert witness out of order, depriving Dean of any additional time he might have had to prepare during the course of the trial. The purpose of rule 26 is to eliminate unfair surprise and provide the opposing party with a reasonable opportunity to prepare for trial. Drew v. Lee, 2011 UT 15, ¶ 28, 250 P.3d 48. Here, the late disclosure deprived Dean of a reasonable opportunity to prepare to rebut the newly disclosed expert’s testimony. Under these circumstances, the district court acted well within its discretion in concluding that the late disclosure was not harmless.

¶29 Second, the record also supports the court’s determination that Janice had no good reason to delay disclosing her expert and his report. The court found that it gave Janice “months” to “call an expert to dispute the valuation that was done by the court-appointed receiver,” yet she waited until “a couple weeks” before trial to hire her valuation rebuttal expert. Moreover, the court found that Janice’s excuse for not hiring an expert—that she was waiting because she wanted the marital estate to pay for the expert—“carrie[d] no water with [the court]” because the court had made clear, at least since the previous August, that Janice had to pay for her own rebuttal valuation expert. Under these circumstances, the district court did not exceed its discretion in finding that the delay was unjustified.

¶30 We conclude that the district court did not abuse its discretion in finding that Janice’s untimely disclosure was neither excused for good cause nor harmless to Dean. Therefore, the district court correctly applied the automatic sanction dictated by rule 26(d)(4) and excluded the expert’s testimony.

III. Sanction of Attorney Fees and Costs

¶31 On appeal, Janice does not challenge the court’s finding that she engaged in sanctionable conduct and acknowledges that “the bulk of the court’s award of fees and allocation of costs were within the court’s authority.” Instead, she argues that the award was excessive because it included some attorney fees and costs not attributable to her sanctionable conduct. Because we cannot determine whether the attorney fees award exceeded the costs that Dean incurred as a result of Janice’s sanctionable conduct, we remand to the district court for further proceedings.

¶32 “[W]hen a court imposes an award of fees or costs as a sanction, its award must be limited to the amount actually incurred by the other party” as a result of the sanctionable conduct. Goggin v. Goggin, 2013 UT 16, ¶ 36, 299 P.3d 1079. In Goggin, the district court awarded the former wife all her attorney fees and costs after finding that they were “largely due to [her former husband’s] untoward and contemptuous behavior.” See id. ¶ 38 (cleaned up). Our supreme court reasoned that “this language implies that [the former wife] may have been awarded at least some attorney fees and out-of-pocket costs that were not caused by [the former husband’s] contemptuous behavior.” Id. (cleaned up). The supreme court therefore held that the district court had exceeded its discretion by awarding costs and fees in excess of the amount attributed to the sanctionable conduct. Id.

¶33 Here, it is not clear whether the district court limited the award to the fees and costs that Dean incurred as a result of Janice’s sanctionable conduct. In assigning the entire cost of Dean’s attorney fees and expenses to Janice, the court found that Dean had incurred “extraordinary legal costs in enforcing Court orders and attempting to track down and preserve marital assets” and that a “substantial amount of additional work [had been] required to address the dissipation issues in this case.” Yet the court also found that Dean’s legal fees and costs “incurred in connection with issues surrounding the dissipation of marital assets and the nefarious conduct engaged in by [Janice]” merely constituted the “lion’s share” of Dean’s legal fees. Like the district court’s use of the term “largely” in Goggin, the use of the term “lion’s share” here suggests that a portion of Dean’s fees and costs were not the direct result of Janice’s sanctionable conduct. To the extent that the attorney fees award included such additional costs, it exceeded the district court’s discretion.

¶34 Accordingly, we vacate the attorney fee award and remand for further proceedings. On remand, the district court should either make findings to support the determination that all Dean’s legal expenses were caused by Janice’s sanctionable conduct or modify the award to exclude any amounts not caused by that conduct.[4]

CONCLUSION

¶35 Janice has not shown that the court failed to consider goodwill in valuing the business or that it clearly erred in finding that there was no personal goodwill associated with Meds. Nor has she shown that the court exceeded its discretion in determining that her untimely expert disclosure was not harmless or justified. However, to the extent that the attorney fees award exceeded the costs Janice’s sanctionable conduct caused Dean to incur, the court exceeded its discretion in granting that award. Therefore, we remand for further proceedings on that issue consistent with this opinion.[5]

—————————————————————-

[1] As is our practice when parties share the same last name, we refer to each by their first names, intending no disrespect to either party.

[2] “On appeal from a bench trial, we view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard, and we present conflicting evidence to the extent necessary to clarify the issues raised on appeal.” Nakkina v. Mahanthi, 2021 UT App 111, n.2, 496 P.3d 1173 (cleaned up).

[3] Janice also argues that there was “[i]rregularity in the proceedings” because the receiver “hire[d] a business valuator who is . . . a partner with the receiver at the [same] firm.” But this issue was not preserved. See Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968 (explaining that for an issue to be preserved “(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (3) a party must introduce supporting evidence or relevant legal authority” (cleaned up)). Janice did not challenge this alleged irregularity below. It appears that Janice may have attempted to raise the issue in a motion pursuant to rule 59 of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 59(a)–(a)(1) (providing that “a new trial may be granted to any party on any issue” because of “irregularity in the proceedings of the court, jury or opposing party, or any order of the court, or abuse of discretion by which a party was prevented from having a fair trial”), but the district court properly refused to consider that motion as untimely, and the issue is therefore unpreserved for appeal, see Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 30, 163 P.3d 615 (holding that an issue raised in an untimely posttrial motion was not preserved for appellate review where district court “properly refused to address the” untimely motion).

[4] Dean argues that even if the district court awarded attorney fees and costs not attributable to Janice’s contemptuous behavior, that error was harmless because a mathematical error resulted in Janice not paying the intended award. If the district court determines that “a clerical mistake or a mistake arising from oversight or omission” has occurred, the court may correct the mistake on remand. See Utah R. Civ. P. 60(a).

[5] “Although [Dean] requests attorney fees on appeal, because the trial court awarded [him] attorney fees only as a sanction for [Janice’s] conduct during litigation, we deny that request.” Liston v. Liston, 2011 UT App 433, ¶ 27, n.6, 269 P.3d 169.

Erickson v. Erickson – 2022 UT App 27

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

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What is a costly part of divorce that almost no one thinks of ahead of time?

Every aspect of divorce. Every single one. 

Two cannot live separately and divorced for less than they did together. 

Litigation is mind-bogglingly expensive and protracted. 

Even an uncontested divorce can result in tremendous expenditures incurred to get divorced, a substantial loss of one’s net worth as a result of the division of the marital estate, and years of future financial obligations in the form of child support and alimony. 

And: 

  • Clients are often shocked by the cost of the court filing fee 
  • Clients are often shocked by the cost of service of process 
  • Clients are often shocked by how much of their time a divorce action take up. It can feel like it takes up or even actually takes up as much time as a second job 
  • Clients are often shocked by the emotional toll divorce takes 
  • Clients are often shocked by the cost of attorney’s fees 
  • Clients are often shocked by the cost of expert consultants 
  • Clients are often shocked by the cost of the child custody evaluator (which is doubly shocking because child custody evaluations are such an obscene waste of time, money, and effort, given their comparatively minimal probative value) 
  • Clients are often shocked by how much child support they will pay or how little child support they will receive. 
  • Clients are often shocked by both 1) how much alimony they will pay or how little alimony they will receive, and 2) for how long 
  • Clients are often shocked to learn that their pensions and retirement savings accrued or acquired during the marriage are divided equally with their spouses when they believed that they would get to keep all of the pension and retirement funds in their own individual name for themselves. 
  • Clients are often shocked to learn that their house is not worth nearly as much as they thought 
  • fathers are often shocked to learn that there is an undeniable bias against them when it comes to making the child custody award. 

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

https://www.quora.com/What-is-a-costly-part-of-divorce-that-almost-no-one-thinks-of-ahead-of-time/answer/Eric-Johnson-311

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Law from a legal assistant’s point of view, week 20: Lawyers

By Quinton Lister, legal assistant

My boss at the law firm where I work (Utah Family Law, LC) has informed me more than once that, “divorce lawyers are, with few exceptions, terrible people”. I am still not sure how I feel about assigning this description to all divorce lawyers (my boss is a divorce and family lawyer, after all, and he’s not a terrible person; he didn’t pay me to say that either), but I have definitely started to see some of the things that would lead my boss to come to this conclusion in my short time as his assistant. 

For instance, the process of divorce cases could be much shorter, but for the problems the lawyers cause, needlessly. So often the case drags out over a span of years. This costs people tens of thousands of dollars. I have learned that a case rarely, if ever, must drag out so long, so what factors ensure that it does when it does? One of the factors is that divorce attorneys generally make more money the longer a case drags on. If the legal profession and court system want more respect and trust, they need to address and mitigate the incentive bad lawyers have to make a profit by doing their clients a disservice in this manner. 

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

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How to Avoid Hiring the Wrong Divorce Lawyer

So you’ve paid your divorce attorney $10,000 or so, it’s been 6 months, and essentially nothing’s getting done. What went wrong?

It could be many things. If you have a bad lawyer (and that’s highly possible) you have my sympathies. Know you’re in good company. So many people choose lawyers the wrong ways. If you realize you picked a bad lawyer, fire and replace that lawyer as soon as you reasonably can, then please share your experiences with as many people as you can, so that they don’t make the same mistakes and suffer as you have.

Most people who hire the wrong lawyer do so by:

1. hiring due to unrealistic fears and expectations which opportunistic lawyers exploit to get people to write such lawyers a blank check (or if not a blank check, a way too big check).

2. hiring too fast (without doing enough searching to find the best lawyer they can afford).

3. hiring too cheap (choosing a lawyer based upon the “lowest bidder” is a recipe for disaster because cheap lawyers are, with rare exception (“so rare it’s not worth so much as hoping for”) lawyers who are incompetent in one way or more. Usually, cheap lawyers are sloppy, lazy, stupid, and/or crooked. That stated, it is not true that the more one pays for a lawyer the better the lawyer will be. You have to find the sweet spot: best value for the money.

a. Good lawyers don’t come cheap, period.

b. A case is rarely won fast and thus rarely won on the cheap.

4. hiring based upon a recommendation. Unless the person who recommended the lawyer to you is someone you know to be so much like you, who has needs and interests, a situation, and a personality so much like you as to be practically indistinguishable from you, taking another’s recommendation on who to hire as an attorney is usually a bad move. **By all means, seek recommendations and seek opinions as to which lawyers to avoid**, **but **make up your own mind by doing your own research and by interviewing the lawyers yourself. Case in point: the lawyer who kicked your best friend’s butt may be the perfect lawyer to kick your spouse’s butt, but your best friend is not likely to tell you that because your best friend likely harbors a grudge against that lawyer.

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

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Why Not Have the Judge Interview the Children About Child Custody?

Why Not Have the Judge Interview the Children About Child Custody?

Why Appoint a GAL or Custody Evaluator When the Judge Can Interview the Children?

This post is the first in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

I can imagine a case in which ordering a custody evaluation and/or appointment of a guardian ad litem may be warranted, even necessary, but generally guardians ad litem and custody evaluations are an obscene waste of time and money and effort. They don’t just fail to justify their costs; they spectacularly fail to justify their costs. Instead, in the overwhelming majority of child custody disputes, the court can and should interview the children directly. The Utah Code expressly provides for this. Section 30-3-10(5), to be exact. Yet in 24 years of practice I have never had a judge agree to interview a child in a child custody dispute. Not once. And I submit that’s ridiculous. In the posts that follow we will discuss why judges interviewing children is clearly superior to appointing guardians ad litem and/or custody evaluations for the vast majority of child custody dispute cases.

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

 

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How Much Will My Divorce Cost? How Long Will It Take?

Good for you for coming here. You’re grabbing the bull by the horns. You’re lancing that boil.

Let’s get right to what you want to know.

When contemplating a divorce, you realize you’re entering uncharted territory. You want to get educated fast and correctly. Two of the most burning questions are, rightfully, “What will it cost?” and “How long will this take?”

When people call me up and ask these questions I give them the truth. Many of them hang up on me in disgust.  But there’s no avoiding it. Go ahead and deny it, if you want, but fooling yourself won’t do you any favors.

Here’s the truth: odds are it will cost far more than you think (to do it right) and more than it should, and it will take much longer than you think and longer than it should.

How long? Impossible to predict how long in each particular case. It is possible for a divorce to be settled in as little as a month or so, and possible for a divorce case to drag on for years before a decree is finally issued. Here are the Utah courts’ own statistics for how long divorce cases last:

https://www.utcourts.gov/performancemeasures/pending.html
Breakdown on how long divorce cases are pending in Utah courts

 

“Ah,” you say, “how encouraging. 81% of divorce cases take a year or less!” Looks can be deceiving. Of course your divorce can be disposed of in 30 days or less, but basically you’ve got a 17% chance. And odds are your case will take up to a year. Few, if any, cases should be litigated for a long time, yet here I am, still doing business as a divorce lawyer.  That’s because no matter how reasonable you are, if your spouse isn’t, then you’ll either have a fight on your hands (and spend boatloads of time and money fighting) or you’ll fold like a cheap suit (and lose boatloads of money and rights getting shafted). The moral of the story: be prepared for your divorce case to take a while.

How much? Impossible to predict how long in each particular case. It is possible for a divorce to cost no more than the cost of the court’s filing fee ($318), and there’s no limit on how much a divorce can cost. But for an estimate of the average costs and duration of divorce cases nationwide, scroll down to the bottom of this post. 

Here are the reasons why divorce is often so needlessly expensive and time-consuming, in my opinion (not in any particular order):

  • ignorance of how divorce law actually works and/or refusal to accept how divorce law actually works

– so clients dig their heels in on losing arguments, and A) waste a lot of time and money and B) get frustrated and anxious in the process;

  • most clients don’t do enough of their own work on their cases and/or don’t do good work on their own cases,

– which leads to clients leaving the work they could do themselves for the lawyer to do–and bill for;

– this also leads to important opportunities lost, and that costs you too;

  • many divorce lawyers charge clients as much as they can (I’d say “most divorce lawyers,” but then someone would accuse me of making statements I cannot prove, even though I am giving you my honest opinion), as opposed to charging what is needed;
  • clients (being human) are fickle and will drag their feet as they undergo the unpleasant task of divorce, then complain when the case is moving more slowly than they wish;
  • clients hire lawyers who make them feel good about hiring them because these lawyers told the client what they want to hear, i.e., “I’ll do this cheap, I’ll do this fast, and I’ll do it well.” That’s just not realistic, despite being ever so appealing. Has a divorce ever been done cheap, fast, and well? Yes, every now and then. Is that likely to be what happens in your case? No.
  • Clients (and many lawyers) confuse “my case is done” with “my case turned out exactly the way I wanted.” Most people, when the settle their divorce cases, settle on terms they could live with, but not on terms they loved and, frankly, not on terms they thought were all that fair.

It should come as no surprise that divorce usually (not always) is made much more miserable if one or both of the spouses are afflicted with mental illness or abuse drugs and/or alcohol. So if there are no mental illness or substance abuse issues, divorce usually (not always) costs less and takes less time:

  • the less time the couple has been married (argument for alimony is weaker, fewer grudges built up over time);
  • the less property the couple has acquired while married (argument for alimony is weaker, fewer assets to fight over, costs of litigating often outweigh the value of the assets fought over);
  • if the couple has no children (no issue of child custody and child support to fight over)

If you have been married a long time, have a house, cars, retirement accounts, debts, and children, the risks of your divorce being expensive and time-consuming are much higher. Even if you don’t want to fight, if your spouse does want to fight then you may spend substantial time and money just defending yourself.

If you think a divorce will cost you $5,000 or less and take 3 months or less, the chances of your case ending this way are slim to none.

Here are some national statistics about costs and time involved in divorces, for comparison:

https://www.lawyers.com/legal-info/family-law/divorce/divorce-without-children.html

https://www.lawyers.com/legal-info/family-law/divorce/divorce-without-children.html
Martindale-Nolo infographic

 

https://www.nolo.com/legal-encyclopedia/ctp/cost-of-divorce.html

https://www.nolo.com/legal-encyclopedia/ctp/cost-of-divorce.html
Nolo.com infographic

 

https://www.nolo.com/legal-encyclopedia/ctp/cost-of-divorce.html
https://www.nolo.com/legal-encyclopedia/ctp/cost-of-divorce.html

 

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

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Why do we allow attorneys to profit from the harm of children?

Look, I love you, brother, but this isn’t really a question, it’s a lame lament, and I will show you why.

First, there are plenty of horrible lawyers out there who shamelessly exploit innocence and misery for their gain, but that doesn’t inexorably mean that lawyers profit from harming children. I’m the last guy who will praise lawyers[1] (and I am one myself), but your complaint that “attorneys profit from the harm of children” rests of several false assumptions.

Second, no parent involved in a child custody dispute must hire a lawyer. No law requires you to hire a lawyer to represent or assist you in your child custody dispute. You can go through the custody case representing yourself, all the while never utilizing the services of a lawyer.

Third, with rare exception the fight over child custody is what harms children, not merely the involvement of an attorney or attorneys in the fight.

Fourth (and also with rare exception), studying to ace a test is hard, effective exercise is tiring, high quality usually commands a commensurate price, etc. No pain, no gain is true of most child custody disputes. A defensive war can be devastating, but where the foe is bent on your destruction, the war must be fought before things can or will ever get better. Blaming the soldiers for the miseries of war is grossly unfair.

Fifth, if you find yourself in a custody battle and you’re on the side of the angels, yet outmanned and outgunned, the help of a good attorney can be the difference between victory and defeat. That kind of servant is worthy of his hire.

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

——————

[1] After 21 years in practice, I could not honestly defend every (or even a lot of) divorce and family lawyers as paragons of any virtue. There are good, honest, industrious, decent people who are also divorce lawyers, but they are harder to find than they should be.

https://www.quora.com/Custody-battles-harm-children-almost-always-Why-do-we-as-a-society-allow-attorneys-to-profit-from-the-harm-of-children

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Guide to Reducing the Time and Costs of Divorce in Utah

Guide to Reducing the Time and Costs of Divorce in Utah

1.  If you are the victim of serious or escalating domestic violence, get help and get to safety first.

You cannot think clearly or focus on getting a divorce if you are preoccupied with fear for the life or safety of yourself or your children.

  • If you are tempted to accuse your spouse falsely of child and/or spousal abuse to get a leg up in a divorce case, the truth is that usually works, especially if you are a woman. Courts are extremely risk averse, and in most cases if they so much as worry there may be a threat of physical violence, they will “shoot first and ask questions later” by issuing protective orders and supervised parent-time/visitation orders out of caution, even when there’s no proof. These protective orders and supervised parent-time orders can set the tone for the entire case and often solidify into permanent orders, if the party against whom the orders are issued cannot disprove the allegations of abuse.
  • So does this mean you should lie to obtain these kinds of orders? No. Is it because you risk being caught? Not in my opinion. Frankly, there is rarely a penalty for being caught lying about these things. So why be honest? Because it’s the right thing to do, and I do believe in the Golden Rule and in karma. “That’s pretty weak,” you might say, and you’d be right.
  • So if you are the one who is falsely accused of abuse, prepare to spend a lot of time and money to make things right, and get a very good lawyer. Your odds of vindicating yourself without a very good lawyer’s help are slim to none. Just ask around and you’ll see.

2. Advance Planning, If You Have That Option.

If you were served with a divorce summons before you read this, then advance planning is not in the cards for you. You will, however, still benefit from reading this article, including this advance planning section.

I know for many of you, preparing for divorce and planning for it “behind your spouse’s back” makes you feel guilty or dishonest. Good for you. It shows you have a conscience, and as long as you continue to let your conscience be your guide you need not and will not feel guilty or dishonest about trying to make the best of a bad situation.

If your idea of planning for a divorce includes opening secret bank accounts to hide assets, running up big credit card balances, persuading your husband to pay for facelift and breast augmentation as a “gift” to him, draining your savings and retirement, or arranging to get “fired” to avoid alimony and child support, and other such underhanded shenanigans, you are not planning for divorce, you are plotting against your spouse (Matthew 12:26).

The good and right kind of advance planning for divorce is this kind:

Before you do anything else:

  • Reset your phone to factory defaults to ensure that there’s no software on your phone that enables your spouse to spy on you and your phone and Internet usage.
  • Change the password on ALL of your email and social media accounts.
  • Password protect ALL of your computers and phones that you use exclusively.
  • Don’t use phones and computers that are accessible to your spouse and other family members to research divorce, transfer money, set up new accounts, or to discuss divorce.
  • Make sure the new passwords aren’t something your spouse can easily guess.
  • Copying or take possession of family computer hard drives, removable storage, and cloud-stored data.
  • DON’T go snooping around your spouse’s computers, e-mail, and social media accounts without first consulting a lawyer and private investigator to know how to do it right, if it can be done at all. You don’t inadvertently want to violate any state or federal privacy and wiretapping laws.
  • If you have any financial accounts in your name only (and that your spouse doesn’t use historically or routinely for family expenses), but you have authorized your spouse to access the balance information or make withdrawals from the account, remove the authorizations. Protect the account from being drained by your spouse.
  • Get a post office box. Ÿ Get another e-mail address for divorce purposes exclusively
  • Your post office box and new e-mail address are where you can have communications sent to you that you don’t want your spouse to know about, such as correspondence between you and your lawyer, your private investigator, and other professionals you may be consulting.
  • Open a new checking and savings account in your name only. You want to have your own account accessible only to you, so that you have funds available when you need them, without worrying about whether your spouse will try to block access or withdraw all the money from a joint account.
  • Open a new credit card account in your name only. A credit card in your name, like a checking and savings account, helps you have access to credit in an emergency and helps you build credit in your own name too. Open the account before you file for divorce if you wouldn’t qualify for a credit card without taking your household income into account; if your income and credit history is scanty, you may qualify on your own.
  • Think about changing your will and living will/medical directives. While in Utah you cannot completely disinherit a spouse (while you’re married), you can take steps to ensure your soon to be ex-spouse does not inherit through your will or through intestate succession if you die before your divorce is finalized.
  • If you have minor children who have passports, make sure they are secure, so that your spouse cannot leave the country with the children.

Next:

  • Make an appointment to meet with an excellent divorce lawyer now.
  • Even if you decide against seeking a divorce, talk to an excellent attorney now (not just any attorney, an excellent attorney; talking to any old attorney is just chancing it), while time is on your side. Learn about how divorce works. Dispel all the myths and lies you’ve been told by well-meaning friends and family members or by your self-absorbed/abusive spouse. Learn where you may be vulnerable and how to use time to strengthen yourself and your case.
  • Don’t settle for interviewing 2 or 3 divorce lawyers. Interview 6 or more. Seriously. Lots of divorce lawyers are mediocre, and if you don’t shop around earnestly, you’ll end up settling for (and wasting your precious money and opportunities on) a lawyer you don’t particularly trust, like, want, or who can do the job you need done. Don’t be afraid to pay a consultation fee either. “Free consultations” are anything but. Attorneys cannot afford to give free consultations, so the good ones charge for their time and advice. Many of the bad ones simply tell you at the end of your “free” consultation that—surprise, surprise—need to hire them.
  • Nail down the facts. And how do you do that? See paragraph 3, below.

3. Gather in one place the information needed to prepare your divorce case, and keep a backup copy.

Keeping everything together in one place helps ensure that you do not overlook the facts, assets, debts, and issues involved in the divorce case. Once you get all of this information down on paper and on a couple of hard drives, your attorney will be much better prepared to answer your questions and advise you on how to proceed in your specific divorce case.

  • Gather and keep current identifying, asset, debt, and other financial information on yourself.
  • Gather and keep current identifying, asset, debt, and other financial information on your spouse. This may be even more important than gathering the information on yourself, because once the divorce process starts, your spouse may start to hide or destroy this information to prevent you from having complete and accurate information.
  • Gather and keep current important information about you and your spouse’s business or employment. Know the name, supervisors, address, and contact information for you and your spouse’s employer. If you or your spouse has/have his/her own business, find out what assets, liabilities, and accounts the business has. Gather the information necessary to value your spouse’s business rule and get your own business appraised. Report all business earnings, expenses, and losses properly; don’t “cook the books” or engage in any illegal or even suspicious business activities. That’s easier to discover and unravel than you might think. Don’t pay personal expenses or your lawyer’s fees from your business. Mixing personal and business expenses can risk your business being penalized by the government and considered a marital asset.
  • To make sure you are gathering a complete list of important documents, keep track of the mail when it arrives at your house, so that you know what bills you have, what financial, investment, retirement accounts, and insurance policies there are. Record account numbers, balances, addresses, names, and contact information. If mail is also addressed to you or to you and your spouse, make copies of these documents for future reference and to review with your attorney.
  • Gather together as many of these documents as you can possibly find (it may be hard, but the law will require it of you):
    • FINANCIAL AND ASSET DOCUMENTS
      • tax returns going back as many years as you can (but not less than the last three years of filed or prepared returns);
        • The tax returns need to be complete federal and state income tax returns, including Forms W-2 and supporting tax schedules and attachments, filed by or on behalf of that party or by or on behalf of any entity in which the party has a majority or controlling interest, including, but not limited to, Forms 1099 and Form K-1.
        • pay stubs for and other evidence you and your spouse of all earned and un-earned income for the at least 12 months before your complaint for divorce is filed, or a work history report from the Department of Workforce Services;
        • all loan applications and financial statements prepared or used within at least the 12 months before the complaint for divorce is filed;
        • any and all documents verifying the value of all your real estate interests, including, but not limited to, the most recent appraisal, tax valuation and refinance documents, mortgage statements, loan documents, etc.;
        • your bank, credit union, and checking account statements, contracts, and other evidence of your financial assets going back at least three years;
        • any and all statements for at least the 3 months before your complaint for divorce is filed for all financial accounts, including, but not limited to checking, savings, money market funds, certificates of deposit, brokerage, investment, retirement, regardless of whether the account has been closed including those held in your name, jointly with another person or entity, or as a trustee or guardian, or in someone else’s name on that party’s behalf;
        • credit card statements, loan documents, leases, receipts and billing statements to verify your household expenses and your personal expenses;
        • certificates of title to your house, your vacation timeshare, your cars, trailer, motorcycles, watercraft, major equipment, etc., and evidence of these items, such as receipts, loan documents, etc.);
        • creditor statements regarding your debts and liabilities, such as credit card statements, your student loan statements, home equity line of credit, etc.
      • Start keeping track of all of your expenses by keeping your receipts and jotting down expenses for which you don’t have receipts in a ledger.
  • Keep all your receipts for EVERYTHING you purchase. Start keeping track of all of your expenses by keeping your receipts and jotting down expenses for which you don’t have receipts in a ledger.

You need to prove to the divorce court what your needs and expenses are. Keep the register tape when you buy groceries. Keep receipts for gasoline. Keep copies of your utility bills, clothing purchases, extracurricular activities, business and employment-related expenses, gift purchases, donations, EVERYTHING. When I say everything, I mean, literally, everything. Every expense of yours. Use your credit card to help track purchases. If you purchase something from a merchant who does not normally give you a receipt, ask for one. If you cannot get a receipt, write down the expense in a ledger you keep with you at all times for this purpose.

Do not reduce your spending, if you can manage it. If you think that being frugal before and during the pendency of your divorce case is the responsible thing to do, think again. Being frugal and economical in your spending is one of those “no good deed goes unpunished” situations. Suppose you gross $6,500 per month, and have a net income of $4,000 per month. Suppose your lifestyle pre-divorce filing had you spending $4000 per month on your housing and food and clothing and even your hobbies and entertainment. Suppose that you then decide to reduce your spending by $1000 a month so that you could afford to hire a divorce lawyer. The problem is that the divorce court and your spouse will almost certainly conclude that your lifestyle costs you $3000 per month, not $4,000 (because you will not always be paying for a lawyer every month for the rest of your life). So now the court and your spouse will say you have an extra thousand dollars every month you don’t spend, and your spouse can now claim you should pay that to him or her as alimony, or on your kids in the form of extra child support.

So even though you might think saving money on your lifestyle will help you make divorce more affordable, it could actually cost you in the long run by resulting in the court concluding you have extra money to pay alimony and other family expenses for years to come.

  • Get a copy of your credit report, and monitor your credit report, and monitor your credit report.
  • Make sure your spouse is not running up debt in your name or spending marital funds on a lover. Use your credit report to determine the amount of debt you and your spouse have incurred and see if there are debts that were hidden from you. If you worry your spouse might run up debts, try to borrow money in your name, or try to damage your credit, then enroll in a credit monitoring service to notify you of any suspicious activity. You might also call the credit reporting agencies report fraud on your credit report. (No, I do not profit from these links in any way.)
    • To obtain a copy of your credit report, click on the following link: Annual Credit Report
    • To report fraud on your credit report, click any of these links:
  • To enroll in credit monitoring, click any of these links (no, I do not profit from this link in any way):
  • To enroll in identity theft protection, click on the following link:

(If you were wondering, no, I do not profit from these links in any way.)

  • Keep track of your outstanding and ongoing bills and obligations. If your spouse has historically been the one who kept track of and paid the household bills, that may change once a divorce is filed. Don’t assume that the bills will still get paid on time or in full. Money gets tight, and your spouse may stop paying the bills, bills for which you are jointly liable. Even if a temporary court order requires your spouse to pay some or all of the bills, that does not prevent your creditors from pursuing collection actions against you. Partial payment or non-payment of bills can damage your credit rating, making life after divorce difficult if you apply for a new credit card, a car loan, or a home loan.
    • If your home or other real estate is mortgaged, make sure the payments get made in full and on time for the sake of protecting your credit. Tell the lender that you need a statement sent to your new address. Monitor the monthly payments online, and if payments fall behind, tell your lawyer immediately.
    • If your car is financed, make sure the payments get made in full and on time for the sake of protecting your credit. Tell the lender that you need a statement sent to your new address. Monitor the monthly payments online, and if payments fall behind, tell your lawyer immediately. If your car is title or lease in your spouse’s name, prepare yourself for the possibility of borrowing a car, purchasing, or leasing a car of your own, to ensure you can still get to work and have transportation to meet your personal needs.
  • Inspect, inventory, and document your personal property.It is common for spouses to remove stuff from the home and then to hide it, give it away, sell it, or even destroy it just to be spiteful. To get a complete, detailed inventory of the personal property in your house and in any shed or outbuilding on your property, go through your house room by room with a video camera and a friend. Make sure the camera records the time and date of the inventory. Identify the furniture in every room. Film each wall to show the artwork on the walls and the crystal chandelier on the ceiling. Open closets, pull out the contents and get a good shot of each item in it. As you go, take a regular camera and get still shots of everything too (Make sure the camera records the time and date of the inventory). Should your spouse later claim that things have mysteriously gone missing, you will have rock-solid proof to the contrary.
    • Secure big ticket items and property that has sentimental value. If you fear that cars, boats, motorcycles, watercraft, paintings, coin or gun collections and other big ticket items may be taken, sold, given away, or otherwise disposed of during your divorce, take them some place safe and secure them. You will eventually have to disclose where they are, but you won’t get in trouble for keeping them safe from your spouse selling or stealing them out from under you.
    • If you transfer any property, then after you transfer the property, have your attorney notify your spouse or your spouse’s attorney of the transfer immediately.

OTHER DOCUMENTS AND EVIDENCE THAT MAY PERTAIN TO YOUR DIVORCE

  • family photographs and videos
  • drug and alcohol screenings (if you get screened at work) to show you aren’t the drunk or junkie your spouse accuses you of being
  • police reports and records of criminal convictions, if you’ve been the victim or perpetrator (or accused perpetrator) of violence or other criminal behavior
  • evidence of your and your spouse’s ability to earn income
  • evidence of your efforts to be a good and engaged parent; evidence that your spouse is not a good and engaged parent
  • Identify by name, address, and contact information witnesses to your good character, treatment of your spouse and children, your parental fitness, etc. Also identify witnesses to your spouse’s misconduct, abuse, infidelity, etc.

Once you’re safe, have met with an attorney, and have all your documents gathered, then:

4. Familiarize yourself with the divorce process.

Talk to an attorney (you don’t have to hire one, just pay for a consultation or two or three) who a) focuses his/her practice on divorce and b) who is willing and eager to help you understand the laws and the procedures involved in a divorce, so that you are not constantly surprised, anxious, or frustrated by ignorance of the process.

Educate yourself. The more you know, the less money you’ll spend paying an attorney to educate you or get you out of the mess you unknowingly created.

Start by reading the divorce statutes in the Utah Code. State with Chapter 3 of Title 30 of the Utah Code (this is the Divorce section of the Code), then read Chapter 12 of Title 78B of the Utah Code (the Utah Child Support Act) if you have minor children. Even you don’t fully understand it all, at least you know where this information is and what it covers.

Go to your local library and browse the books in the “divorce” section. Check out those titles that interest you.

Our website, divorceutah.com also has some of the best, clearest, most useful information about Utah divorce. Scouring divorceutah.com will dramatically improve your confidence, your sense of purpose, your effectiveness, and your efficiency in interacting with your lawyer and negotiating with your spouse.

Other links you may want to browse online include:

5. Save up some money for your divorce battle.

Even a simple divorce can be expensive, and unexpected expenses are, well, to be expected.

You’ll need money for the court filing fee. You may miss a few days of work to be in court or in a deposition or examination. You may need to hire a babysitter on those days too.

Then there’s the cost of a lawyer. I know you don’t want to pay for a lawyer, but don’t trip over dollars to pick up dimes. If you think divorce law is simple and straightforward, by all means please try to do it yourself. There’s no better way for you to learn how wrong that is. Once you have determined that a good lawyer pays for himself or herself, find the best lawyer you can afford. If the best lawyer you can afford is incompetent, don’t hire that lawyer. Incompetent lawyers cost you money.

Don’t run out and hire a divorce lawyer unless you can afford to go the distance. If that means sticking around in the marriage a while to save up some lawyer fee money, complete your education, get a good job, etc., so be it.

Of course, if you are in an abusive marriage where staying put risks your life or safety, that’s a different matter; if comes down to your money or your life, spare your life and worry about money later.

6. Consult a financial advisor.

I know you’re not made of money and consulting professionals is expensive, but I’m telling you that if you can, you should avail yourself of sound advice. It pays for itself.

A good financial advisor and a good accountant will help you identify and plan for the tax and credit consequences of divorce as you refinance or sell your house, divide retirement, investments, and business assets. Your advisor(s) can help you understand how divorce affects Social Security health, and life insurance benefits. A good financial advisor or accountant can also help you prepare a financial plan and a budget during the divorce action and for life as a newly single person again.

7. Play it cool and play it smart.

The fight or flight instinct is pushed to its limits in divorce. The tendency to overreact is strong; you alternate between feelings of utter helplessness and the desire to “take no prisoners” as your case drags on. Your goal (and best course of action) is to stay in control. It’s hard, but well worth it, and far better than spiraling out of control. Don’t fall prey to conduct that can be used against you in court. Conduct yourself with dignity, grace, and class (and the fringe benefit is that nothing will drive your spouse crazier than you staying cool, no matter what he/she throws at you).

8. Clearing the skeletons out of your closet (or at least Get Your House in Order, if you don’t have any skeletons):

  • Stay away from drugs, alcohol, pornography, gambling, and any other addictive behavior. Divorce can drive almost anyone to drink, smoke, snort, snack—anything to ease or dull the pain. Don’t start. So call your mom or your best friend instead (every day, if you have to until you’re back in control). Take a brisk walk. Read your scriptures. Pray. Join a softball or bowling team. Volunteer at a school or hospital. Focus on picking the best lawyer you can afford. Take the focus off yourself—it works (and don’t tell me it doesn’t until you try it). It keeps you out of trouble, it helps you get your perspective back, and it lets the sun peek through the clouds of doom just a little bit more.
    • If you abuse alcohol or drugs, if you have a gambling, overeating, or pornography problem, etc., change course immediately. Being branded a drunk, an addict or a reckless, irresponsible libertine is the last thing you need in a divorce. Get professional treatment, if needed. You’ll not only be improving your own well-being, but also showing the divorce court that you deal with trials and adversity in a mature, productive manner.
    • If you are an alcoholic or abuse pain medication or other drugs, get clean and sober and fast, or you will likely kiss your kids goodbye in divorce.
    • If you’re having an extramarital affair, break it off and keep it off. If your spouse discovers the affair and confronts you about it, come clean immediately, no more no less (don’t beat yourself up over it or try to “buy” your spouse’s forgiveness by offering damn fool concessions as fast as your lips can move or your hands can type or sign extortionate agreements).
  • If you’re a petty criminal, stop committing crimes, now.
  • If you like porn, stop viewing it. Yes, I know it’s legal (except kiddie porn), but it’s more trouble than it’s worth in divorce. Don’t think you can fly under the radar. Your spouse will find out and thus, so will the court. Again, pornography is legal, but that’s not the point. Viewing pornography makes you a sitting duck for allegations that you’re a dirty old man (or woman) who might molest the kids. I know that sounds crazy to some, but that’s the perception. Don’t fight it, just dump the pornography and get in the clear.
  • If you actually are a dirty old man or woman who has a pornography addiction, get into treatment now. You don’t have to shout the fact from the rooftops. You can keep this kind of thing to yourself, but do get treatment before you hurt yourself or your family.
  • If you have gambling debts or have been engaged in other shady dealings, set things right, stay away from bad influences, don’t fall back into bad habits and start running with the wrong crowd again;
  • Get acquainted with your children’s teachers and coaches at school, at church, in Cub Scouts/Girl Scouts and in other extracurricular activities. Get to know your children’s friends and the parents of their friends. Find out what your children like to do, what they like to watch on TV, to read, what video games they enjoy, etc.
  • If you haven’t been a good neighbor in the past, now is the time to make amends and to straighten up and fly right;
  • If you have been physically or emotionally abusive toward your children and/or spouse:
  • Stop abusing;
  • Seek counseling and/or therapy (even if you don’t think you need it, the judge will look upon it favorably);
  • Ask your counselor for a reading list of books and articles about being a less violent/critical spouse and parent, then buy them and read them and mark them up to remember what they taught.
  • Go back to church (as long as you’re sincere about it)
  • If you are a spendthrift, get your spending under control, vow never to return to your profligate ways, and practice fiscal discipline;
  • If you don’t know what to do or where to start, try one (or several) or these free offerings:
  • If you are a tightwad, loosen the purse strings and do right financially by your spouse and/or children
  • Keep a detailed, honest account of your time spent caring for the children and interacting with them. This will become important when a child custody award is made. Keep a calendar and make notes of every hour you spend with the children. Keep movie and game ticket stubs, copies of homework you helped with. Take some candid photographs when you’re out with the kids. If your account doesn’t make you look like a very good parent, then work on being a better parent, immediately. Don’t fake good parenting, but don’t be afraid to improve as a parent now. It can’t hurt.
  • Do not move out of the house, if you can avoid it.Moving out of the marital home is ill-advised, unless you have overriding interests, such as avoiding domestic violence. In that case, protect yourself first. You’re no good to your children if you are dead or hospitalized due to domestic violence. As you can imagine, if you are not living with your children on a daily basis, but your spouse is (and in the family home to boot), your claim to being a primary caregiver or the primary caregiver is substantially, if not fatally weakened. If you move out, your spouse can accuse you of “abandoning” the family. If you have already moved out of the house, move back in if you can do so without causing trouble for your spouse or the children.

9. Hope for the best, but prepare for the worst.

  • Avoid the very appearance of evil. Your spouse may be the type who will cast everything you do in a bad light. If you exercise, you’re a narcissist. If you work hard, you’re ignoring your family. Are you frugal?  No, you’re a miser!  Are you generous?  No, you’re a spendthrift!  Stay the night at a friend’s house and you’re gay. ‘Love spending time with your kids?  Well, that’s just creepy  . . . The point is this:  keep your nose clean and don’t do anything—even if it’s totally innocent—that can raise suspicion. Act as if your every move is being watched and recorded to play back for the court. Yes, it’s unfair, but it’s smart and a heck of a lot cheaper than having to defend yourself against cheap accusations and innuendo.
  • So keep a regular, detailed record of your day-to-day activities.
    • Make sure you can account for where you went, who was with you, what you did (what it cost), and for how long. If you have children, keep track of when you see or call them, what you do with them when you’re together, and what you talk about (do not coach them or disparage your spouse to them, but do keep notes on how they’re feeling, what makes them happy or sad, how they’re doing in school, what they’re thoughts of the future are).
    • Note each potentially negative rumor or fact, then consult candidly with your attorney as to what steps you can take to mitigate any possible damage.
    • If child custody is an issue, document the good you do and the bad your spouse does. Be honest and don’t exaggerate the good or the bad, just keep a record that reflects who takes care of the kids and in what ways.
  • Become a model citizen. Just as staying away from drugs, alcohol, pornography, gambling, and any other addictive behavior keeps you out of trouble, it also makes you look good to the court. Even if it sounds cynical to you, go to your church, synagogue, or mosque. Take time to help the less fortunate by donating your time and money (within reason). Coach your kids’ team. Volunteer at school and with the Boy or Girl Scouts. Make friends with those in your religious organization and in the good causes you support, so they can be character witnesses for you. Feel good because you are doing good and being good. And document your good works.
  • If you can’t say anything good about your spouse, don’t say anything. Tearing your spouse down does not build you up in the eyes of the judge. Disparaging, defamatory remarks about your spouse—even if based in fact—usually boomerang and draw negative attention you. When you sling mud, it not only ends up dirtying your own hands, but you lose ground too.
  • As I’ve noted above, if you have some skeletons in your closet, clean them out. For those indiscretions and faults you cannot dispose of or fix up, don’t draw unnecessary attention to them. If you are confronted with them, do not lie to cover them, just don’t start singing like a canary about them either. Good P.R. is a useful tool in divorce.
  • Keep a low profile in other areas. Don’t antagonize your spouse, and don’t rise to his/her bait. In a divorce setting, your spouse is not happy with you, and discussion between you will likely not be pleasant or on pleasant subjects. So limit contact with your spouse. Don’t give him/her the silent treatment, just avoid confrontations. Stay calm. Be courteous to your spouse no matter how hard that may be. It keeps you from being branded the bad guy, and helps build good will for settlement. Let your lawyer be the bad cop where necessary. And while few things can match the pleasure of a good zinger, rubbing your spouse’s nose in misfortune (even if it’s well-deserved) will come back to bite you, oft times repeatedly. If it’s you who is being insulted and smeared, don’t fight fire with fire. For reasons I still do not fully understand, it always seems that the court punishes your reaction, not your spouse’s bad acts that led you to react. Don’t attract attention to yourself by getting into or causing trouble.
  • Control your temper. Do not engage in violence or threats of violence. Any violent act you commit against your spouse, no matter the circumstances (self-defense included), can and likely will reflect badly on you. If your spouse is coming at you with a knife, and you have the option of standing and defending yourself or running away to safety, consider running away to safety. Justifying any physical harm to your spouse by claiming it was self-defense is a hard argument to make stick, even when true.

11. Explore the Potential Benefits of Flat Fees, Limited Scope Representation, and Using a Lawyer Consultant.

Paying an attorney by the hour is handing your lawyer a blank check. It’s not required by law, it’s just what lawyers and clients have gotten used to. I recommend hiring a lawyer who charges flat fees, also known as fixed fees. That way you know in advance you’re your costs will be. You can budget for your divorce. You have greater control.

Limited scope representation allows you to utilize the services of a lawyer when you want or need to use an attorney, rather than hiring an attorney on full-time basis. Limited scope may in some cases let you communicate with spouse and opposing counsel more by making it harder for them to erect barriers to communication and impose costly wastes of time or busy work. Don’t get me wrong, some divorce cases are so acrimonious and complex that you may need a full-time attorney’s assistance, but for simpler cases, or in situations where you simply cannot afford full-time representation, limited scope representation allows you hire a lawyer when you want. For example, if you want to prepare your own documents, but want a lawyer to appear in court to make your arguments, you can do that. Or if you want a lawyer to help draft your documents without appearing in court, you can do that too.  There are many other options with limited scope representation. It’s not the best option for everyone, but it’s worth exploring.

11. Seek Second Opinions and Advice at Every Turn.

Determine your objectives, and stick to them, being flexible enough to change when change is needed.

You do your worst thinking when contemplating divorce or going through it. I’m not telling you to second-guess yourself at every turn, but remember when you’re going through divorce your perceptions of reality can—and likely will—get warped. If that weren’t enough, what you believe divorce law is and how it actually functions are two very different things. Ensure that you are making informed and sensible decisions when your reasoning and willpower are compromised. Ask for and listen to advice. Don’t be afraid to question your lawyer and seek second opinions (good lawyers aren’t afraid of this). Be willing to rethink your positions. Bounce your ideas off of people who aren’t as close to your divorce as you are. Seek out expert analysis and recommendations.

12. Let Time Work for You.

Time lost is never found, so knowing how to manage time and use it wisely is key. Whether it means being patient or being the one with your foot on the gas, understand how time affects your case and how to make it work for you, in your favor. Preparing yourself as outline in this article will enable you to leverage your limited time and resources for maximum benefit.

13. Stay Engaged and Persevere.

“When you’re going through hell, keep going.” – Winston Churchill

Most divorces are hard. Even divorces that are relatively amicable and quick take their toll. It’s emotionally and even physically exhausting. It is oh so tempting to just say “to hell with it” and give up, give in. Don’t. You can’t make a bad deal now and expect to come back a few months or years later and “renegotiate”. That’s not the way divorce law works. Court orders or final, and can only be changed in rare situations where you can show material and substantial changes in circumstances necessitate a modification of your decree of divorce. Harsh though it may sound, when you give up you deserve your fate. A quitter never wins. And by “win” I don’t mean that a winner gets total and unconditional surrender, I mean that a winner comes out of divorce treated fairly; you may not be completely satisfied, but you didn’t let the divorce process steamroller you. The court will not look out for you when it comes to getting fair treatment in divorce. You have to fight for and defend your rights, and you have to do so vigilantly from beginning to end. The more you prepare by staying engaged and involved, the better you’ll fare.

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

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