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Tag: court rules

Evidence and Honesty By Braxton Mounteer

You have just decided to file for divorce. Or perhaps you have been served with divorce papers. At some point early on in the process you will likely think to yourself, “I have so many text messages that clearly prove my spouse is terrible,” or “I have videos of my spouse behaving badly.” You could be right. But do you know what kind of evidence is relevant and that the court finds persuasive? And have you considered the implications of what your “evidence” actually says about you? For every gotcha text message or video you have, does your spouse have similar dirt on you?

You may think to yourself, “I’ll just delete the messages that cast me in a bad light,” or “I’ll edit the videos a certain way to make myself look better” and engage in other cherry picking. This rarely works. Indeed, it often backfires. Manipulating the facts is a form of lying. And it’s not that hard to spot or expose.

Understand what kinds of evidence the court needs and what is useless to a court. The court’s jobs are clearcut: 1) end the marriage 2) divide the marital assets, 3) divide responsibility for marital debts, 4) deal with custody of the children (if any), parent-time, and child support, and 4) determine whether to award alimony, and if so, how much and for how long based upon the recipient’s need and the payor’s ability to pay. That’s it. It is not the purpose of the divorce court to settle scores between you and your spouse or to declare who’s worse than the other. While spousal or child abuse can be relevant in a divorce case, stories about shouting matches and squabbles are nothing new or compelling in a divorce case.

Take a businesslike approach to your divorce case. You have to work out your feelings in a divorce case, just not in court. Don’t dwell on your feelings too much when dealing with the court; it’s a waste of your time and energy.

What should you do, then? You need to face the truth and deal with the truth. Submit the relevant evidence and concede your flaws and faults along with it. Your credibility is more important than trying to put up a false front. Your credibility is easier to show and maintain when you’re honest. Courts are more sympathetic with honest people than with liars.

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

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Utah Divorce and Your Financial Declaration: Why it Matters, and How to Prepare It the Right Way

In every Utah divorce case, the parties must prepare what is known as a financial declaration. The parties to a divorce action are required by the rules of court to provide each other with their financial declarations.

With rare exception, divorce litigants struggle with preparing a complete, accurate, truthful financial declaration. We prepared this video (and an accompanying blog post) to help you 1) overcome procrastination, 2) understand the purpose of each part of your financial declaration, and 3) persuade you, we hope, not to give in to the temptation to lie on your financial declaration or try to hide anything from disclosure on your financial declaration.

  1. What is your financial declaration?

Concisely stated, your financial declaration is a document that provides information about income, assets, debts, and personal expenses.

The information in the financial declaration is used to analyze and determine questions of child support, alimony, division of marital property, and assigning responsibility for marital debts and obligations. as well as for determining an attorney’s fee or “for any other reason” (Utah Rules of Civil Procedure Rule 26.1(e)).

The specifics of what needs to be included in your financial declaration are outlined in URCP Rule 26.1. The acronym URCP means “Utah Rules of Civil Procedure,” and URCP 26.1 requires that you provide specific supporting documents with your financial declaration:

  • Your previous two years’ personal and business tax returns, including all the documents submitted with your tax returns and all documents used to prepare those tax returns
  • Pay stubs for the last 12 months before the petition for divorce was filed with the court.
  • Documents that verify the value of all real estate that the parties have an interest in (for example, your most recent appraisal, tax valuation, and refinance documents)
  • Bank statements for all financial accounts for the 3 months before the divorce was filed (this includes checking, savings, money market funds, certificates of deposit, brokerage, investment, retirement, regardless of whether the account has been closed including those held jointly, in your name, or as a trustee or guardian, or on someone’s behalf).

We also suggest that you provide documentation of your personal expenses going as far back as you can. If you don’t have this documentation, start compiling it.

  1. Is there a way to be exempt from preparing and producing a financial declaration?

No. We will not discuss this topic again. You must prepare a financial declaration, and you must prepare it within the time limits you are given to prepare it. You must give your spouse a copy of it. There is no way around it. If you refuse to provide a financial declaration, the court can and almost surely will sanction you severely. Here is what Rule 26.1 provides on that subject:

(f) Sanctions. Failure to fully disclose all assets and income in the Financial Declaration and attachments may subject the non-disclosing party to sanctions under Rule 37 including an award of non-disclosed assets to the other party, attorney’s fees or other sanctions deemed appropriate by the court.

(g) Failure to comply. Failure of a party to comply with this rule does not preclude any other party from obtaining a default judgment, proceeding with the case, or seeking other relief from the court.

  1. Do I have to give the court a copy of my financial declaration? Why?

You may be required to file a copy of your financial declaration with the court if 1) a hearing is scheduled on the subject of child support, spousal support, division of property, allocation of responsibility for debts, attorney fees awards and court costs, or 2) the court has ordered you to file it.

  1. Do I have to give my spouse a copy of my financial declaration? Why?

Yes, you do need to give your spouse a copy of your financial declaration. It is required by court rules. Rule 26.1(c), to be exact.

But the better question is why wouldn’t you give your spouse a copy of your financial declaration? Exchanging financial declarations with your spouse is a way of keeping both parties honest about income, assets, debts and obligations, and personal expenses.

There is an element of wounded pride and embarrassment associated with close examination of the details of a person’s finances. Being honest and pushing your pride aside is hard but is still better than misrepresenting or hiding your financial state.

  1. What will happen if I do not prepare and provide my spouse (and the court, when necessary or when ordered to do so) a financial declaration?

See paragraph 2 above.

And your attorney will likely withdraw as your counsel.

    1. You could be sanctioned for contempt of court. This can lead to fines, penalties, or even jail time.
    2. You could lose your rights and entitlements you would otherwise deserve when it comes to division of marital property, responsibility for marital debts and obligations, and the spousal support and child support awards.

6. Isn’t a financial declaration just busy work?

I hope that by now you can see that a financial declaration is plainly not busy work.

A clear, accurate, and complete financial declaration is one of the best ways to establish your honesty, character, and credibility overall.

A clear, accurate, and complete financial declaration is necessary to help you understand the reality of your financial situation now and what it will likely be post-divorce.

We get it. Taking a hard, honest look at your financials is scary and discouraging. But burying your head in the sand does you no good. Face up to it and get it done.

  1. I do not see the point of a financial declaration (you are lying; of course you see the point of a financial declaration).
  2. “Hey,” you may think, “I have a smart and original idea: I will lie on my financial declaration.” This is neither original nor smart.
    1. You are not the first and will not be the last person to believe that they can lie to your attorney, to the court and to your spouse and to your spouse’s attorney. People have been lying to the courts from the beginning. Sometimes it works. The odds, however, are against you.
    2. The moral thing to do is to tell the truth.
    3. If doing the right thing is not reason enough to be honest and forthright, then remember you are not as good a liar as you think, and you will be caught in your lies.
    4. Do you really believe that you are smarter than the opposing counsel, your attorney, and the court individually or combined? You can fool some of the people all of the time, all of the people some of the time, but you can’t fool all of the people all of the time.
    5. Lying can get you some big benefits if you get away with it. However, if you are caught lying, you will lose. The court can hold you in contempt, and even strike your pleadings outright and award default judgment to your spouse. If your main worry is your money, then you should disclose it. Getting caught in a lie or worse, lying under oath is usually more costly than being honest and forthcoming.
    6. Courts have seen liars lying on financial declarations forever. There is nothing new under the sun.
    7. Unless your lawyer is a crook, if you insist on lying on your financial declaration, your lawyer will be required to drop you as a client.

OK, so you’re now convinced there is no escaping the preparation of your complete and accurate financial declaration. How do I prepare my best financial declaration? Great question. Let’s start answering it by first addressing the wrong way to prepare a financial declaration.

  1. The wrong way to prepare your financial declaration
    • Guessing or estimating without 1) making it clear on your financial declaration form that you were making an estimate, and 2) making the most accurate guess/estimate you can and explaining the bases for your estimate.

Your spouse isn’t likely to cut you some slack if you guess or estimate incorrectly. No, instead your spouse will accuse you of lying. Don’t make wild guesses. Don’t make estimates without making it clear that your estimate is an estimate, not an unquestionable fact.

Sloppy guessing and estimating makes you look dishonest and/or ignorant. Courts don’t listen to liars and fools or take them seriously.

  1. Falsely claiming that you “don’t remember” and that you cannot find documents.

This is lying, and it doesn’t fool anyone. Anyone may honestly forget or misremember a few details. Sometimes documents get lost. It’s only human. But conveniently claiming “I don’t recall” and “I can’t find it” in response to crucial questions? Come on. You cannot even lie persuasively to yourself like that.

Claiming you can’t find documents doesn’t mean your spouse or your spouse’s lawyer can’t find them through other means.

  1. The right way to prepare your financial declaration.
    • The right way to fill out a financial declaration is to be as honest and thorough as possible to provide as complete and accurate a financial declaration as possible. Yes, it may hurt or embarrass you to be so honest about your financial situation, but it hurts worse to lie and be sloppy.
    • Do the necessary work. You can’t skip steps and take shortcuts and turn out a complete and accurate financial declaration. If you think you are an exception, you’re lying to yourself.
    • Don’t procrastinate. You cannot prepare a good financial declaration by waiting until the last minute. Procrastination does more damage to your ability to prepare a good financial declaration than any other bad habit. Procrastination needlessly and inexcusably makes it sadly and much harder to prepare your financial declaration.
    • Conquer procrastination. Conquer it by:
      • 1) committing to complete 3 pages per day, Monday, Tuesday, Wednesday, Thursday, and Friday. There are about 14 pages in a financial declaration form. Your attorney can prepare the first 2 pages for you. That leaves 11-12 pages you need to fill out yourself. If you complete 3 pages per day (and leave yourself an extra day or two to compensate for interruptions or snags you encounter along the way), you’ll have it done—and done well—in 5 days.

2) compiling your supporting documents. Start now. Make sure you contact your banks, credit unions, and other financial institutions, HR and/or payroll department, retirement benefits administrator, and credit card companies to get the documents you need to attach to your financial declaration:

  • Tax returns for the last two years
  • Pay stubs or other proof of income for the 12 months before the petition was filed
  • Loan applications for the 12 months before the petition was filed
  • Real estate documents. Deed, most recent appraisal, tax valuation, and refinance documents (if any).
  • Financial statements for the 3 months before the petition was filed. This includes, but is not limited to:
    • checking
    • savings
    • credit cards
    • money transfer apps
    • money market funds
    • certificates of deposit
    • brokerage
    • investment
    • retirement

It can take several days for the documents to be emailed or mailed to you, so contact the sources and request them now. Don’t be afraid to follow up if you haven’t received them by the time the sources estimate or promise you’ll have them.

  1. Garbage in, garbage out. If you wait until the last minute to prepare your financial declaration, odds are your financial declaration will be mediocre, and a mediocre financial declaration is dangerous. Frankly, if you prepare a half-baked financial declaration, you deserve the natural consequences of poor preparation.

iii. Work in and for your best interest.

  1. Do the work. Do it consistently. Do it on time. There is no other way to do it right.
  2. You cannot foist the preparation of a solid financial declaration on your attorney and his assistants. Really, you can’t. Don’t try. It won’t work. It cannot work.
  3. Your attorney and his assistants cannot do it for you. It is impossible. There is information and there are supporting documents only you can provide.
  4. Your attorney and his assistants do not know more about your financial situation than you do.

iii. Your attorney is there to help you get your financial declaration in ship shape, but you have to do the work and supply information and documents that only you can provide before your attorney can be of any help to you.

  1. There is no loophole. There is no magic wand. You will have to do the work and do it consistently in order to put your best foot forward. Time wasted or squandered cannot be recovered.
  2. Explaining each part of the financial declaration and what the court and the opposing party use it for:
  3. Paragraph 1. Statement of whether you are filing a copy of your financial declaration with the court. This paragraph is fairly self-explanatory. Unless there is a hearing on the subject of alimony, child support, or attorney’s fees awards scheduled, or unless the court has ordered you to file your financial declaration with the court, you don’t file your financial declaration with the court.
  4. Paragraph 2. The documents supporting your financial declaration. Your tax returns, pay stubs, loan applications, real estate documents, and financial statements verify the information you provide in the other paragraphs in your financial declaration.
  5. Paragraph 3. Employment. You identify whether you are employed, and if you are, who your employer or employers are, how you are compensated, how often you are paid, and how much you are paid.
  6. Paragraph 4. Gross Monthly Income. You identify all sources of your pre-tax income, whether earned or unearned, and how much you receive on a monthly basis from each income source. If you don’t receive income on a monthly basis, then you identify what the average annualized monthly amount is.
  7. Paragraph 5. Monthly tax deductions. You identify what taxes are deducted from your gross monthly income and how much is deducted.
  8. Paragraph 6. After Tax Income. This paragraph is fairly self-explanatory. In this paragraph you state what your net income is after you deduct the taxes withheld from your gross monthly income.
  9. Paragraph 7. Monthly Expenses. This paragraph is fairly self-explanatory. Here you identify what your monthly personal expenses are. If you have separated and your expenses have changed since separation, then you identify the differences between your “Current” monthly personal expenses and what your previous “Marital” monthly personal expenses are.

You don’t simply state your personal expenses in paragraph 7. You need to be able to verify and justify them too. To do that, you need to provide receipts documenting these expenses as real.

Providing receipts establishes your credibility. They demonstrate that you are transparent and honest about your financial situation. Providing receipts establishes accuracy. They ensure that you do not overstate or understate your financial obligations and they prevent the court from dismissing your personal expense claims as false or inflated. Providing receipts provide context and explanations for specific expenditures.

  1. Paragraph 8. Business Interests. A business could be a marital asset that has value to be divided in divorce. Or it could be separate property. This is why you provide the information about your business interests, who owns the business interests, and the value of business assets.
  2. Paragraph 9. Financial Assets. This is where you identify where your money is kept, as well as information on other financial assets such as stocks and bonds, insurance policies, and retirement accounts.
  3. Paragraph 10. Real Estate. This is where you identify your interests in real estate, such as the marital home, vacation property, rental properties, or other interests in real estate.
  4. Paragraph 11. Personal Property. In this paragraph you identify the personal property that you own, whether you acquired it before marriage or during the marriage. Must you list every shirt and sock you own, every knife, fork, and spoon? No. A fair rule of thumb for what to list in paragraph 11 is that anything valued around $500 or more goes on the list. You can identify things worth less if you want or if you feel it is important, of course.
  5. Paragraph 12. Debts Owed. In this paragraph you identify both your separate and marital debts and obligations. The type of debt, the account number (if applicable), who the debtors are, the balance owed on the debt, and what the minimum monthly payment is (if applicable).
  6. Supporting documents for your financial declaration must be in PDF format.

The court will not accept documents in any form other than PDF, so all supporting documents must be in PDF form. Here are ways to scan and save documents as PDFs:

  1. Scanner with built-in PDF-creation functionality. Most scanners come with built-in PDF-creation functionality, so you can scan a document and automatically save it in PDF format.
  2. All-in-one multifunction machines: All-in-one machines often have scanning capabilities that allow you to scan documents to PDF files.
  3. Smartphone Apps: There are several smartphone apps that enable you to convert a photograph of a document into PDF format. This is, however, the worst option of all the others. Scanning from a smartphone is time consuming, results in the lowest quality images, and makes it hard to scan multi-page documents. Use your own scanner or have someone else scan your documents into PDF format. You and your lawyer will be glad you did.

Once you gather your supporting documents together, save complete and legible copies of them in PDF format and then email them to your attorney to serve or file them with your financial declaration.

Thank you for watching. Thank you for reading. You’re better for having done so. Because you are now better educated and better prepared to complete your financial declaration fully, accurately, and on time. We hope that watching this video and reading the associated blog post has not only impressed upon you the importance of your financial declaration but has demystified what your financial declaration is and the purposes it serves. We hope you are better prepared and more confident going forward.

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

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The Father Just Paid Child Support, and Now He’s Asking the Mother of the Child to Start Showing Him Receipts. Do You Think He Is Right for Asking?

Absolutely.

No question about it.

Now, don’t confuse “he has every right to ask for receipts” with “he has every right to receipts”.

If a child support payor (known in some jurisdictions as the child support obligor) has reasonable articulable bases for suspecting that the child support payee (known in some jurisdictions as the child support obligee) is not responsibly spending the child support funds for the support of the child, then the payor has every right to raise the concern and to ask for proof to the contrary.

But if a child is hungry, mal-nourished, wearing clothes too small for him/her or wearing worn out clothing or wearing flip flops in the snow, has no blankets or even a bed to sleep in, etc. and yet the child support recipient parent is receiving hundreds (sometimes thousands) of dollars per month intended to meet those needs of the child, the child support payor has every right to raise concern with the court and every right to request that the court audit the payee and require the payee to prove that he/she is being a good steward of the child support funds.

In Utah, we have a statute on this very subject:

Utah Code § 78B-12-218. Accountability of support provided to benefit child — Accounting.

(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.

(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.

(3) The obligor may petition for the accounting only if current on all child support that has been ordered.

If this statute has ever been implemented in a child support case, I have yet to see it. Whenever I’ve asked a court to implement it, the courts’ are offended that my client would have the audacity to be concerned over child support payee malfeasance.

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

https://www.quora.com/The-father-just-paid-child-support-and-now-he-s-asking-the-mother-of-the-child-to-start-showing-him-receipts-Do-you-think-he-is-right-for-asking

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

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

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

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Can you get a post-judgment interest rate higher than the statutory rate?

Did you know you can request a post-judgment interest rate that is higher than the default statutory rate? 

It’s true.  

While the court does not have the discretion to lower, stay, or waive statutory interest rate, it does have discretion to exceed statutory interest if equity so requires. 

Please don’t make me regret sharing this by asking for crazy amounts of interest now.  

A judgment for child support arrearages is a “judgment” within meaning of statute providing that, unless otherwise specified by contract, judgment shall bear interest at rate of 12% per annum; thus, custodial spouse is entitled to statutory rate of interest on the judgment until paid in full; although trial court may, in its discretion under divorce statute, raise statutory interest if equity so requires, court does not have the discretion to lower, stay, or waive interest. Utah Code Ann. §§15-1-4, 30-3-5(1). Stroud v. Stroud, 738 P.2d 649 (Utah Ct. App. 1987), judgment aff’d, 758 P.2d 905 (Utah 1988). Osguthorpe v. Osguthorpe, 804 P.2d 530 (Utah Ct. App. 1990). 

Interest accruing to wife on monies due from husband in property division in divorce judgment was at statutory rate, rather than the lower rate ordered by trial court. U.C.A.1953, 15-1-4. Marchant v. Marchant, 743 P.2d 199 (Utah Ct. App. 1987).  

A higher interest rate than statutorily allowed may be equitably imposed in divorce action under where, “under the circumstances, that award is reasonable,” and, second, that an increase of 2% over the statutory interest rate imposed on the amount not paid to the receiving party within six months was not an abuse of discretion. Pope v. Pope, 589 P.2d 752, 754 (Utah 1978). In divorce action, trial court did not err in ordering that if husband failed to pay wife specified sum of cash within six months of trial court’s order that such amount would bear interest at the rate of 10% per year. Pope v. Pope, 589 P.2d 752 (Utah 1978).  

Section 15-1-4 provides the “minimum interest allowable.” Id. (emphasis added). The statute “does not preclude a District Court, under [section 30-3-5] from imposing an interest rate of more than [the statutory postjudgment rate] where, under the circumstances, that award is reasonable and equitable.” Wadsworth v. Wadsworth, — P.3d —-, 2022 WL 130617, 2022 UT App 5 (citing Stroud v. Stroud, 738 P.2d 649, 650 (Utah Ct. App. 1987) (quoting Pope v. Pope, 589 P.2d 752, 754 (Utah 1978)).  

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

https://www.quora.com/How-easy-is-it-to-change-your-child-s-last-name/answer/Eric-Johnson-311  

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What should I tell my lawyer who says that a motion to dismiss is not real?

What should I say to my lawyer who told me that a motion to dismiss isn’t really a thing so we cannot file one?

It may be that a motion to dismiss is in fact not possible (not permitted by the rules under the circumstances of your case) or not wise under the circumstances (possible, but a bad idea), even though you believe otherwise. a lot of people are familiar with certain legal jargon without knowing what it means, and they often throw it around ignorantly and inaccurately. 

I can’t tell you how many times clients have come to me believing they have rights to do this or rights not to do that, only to find out that their understanding was erroneous. 

A few examples: thinking you have a right to certain documents (or every document known to man) under the “Freedom of Information Act”, believing you don’t have to answer provide requested documents or answer certain questions in a deposition or at trial if they claim that the information sought from them is “private” or “confidential,” believing that because they know the truth/right thing to do, the court must agree with them. 

If you have an idea and your lawyer shoots it down without you understanding why, don’t be afraid to ask your lawyer to explain it to you. If your lawyer can’t do that, your idea may not be so bad (but instead your lawyer may not be up to the task). 

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

https://www.quora.com/What-should-I-say-to-my-lawyer-who-told-me-that-a-motion-to-dismiss-isnt-really-a-thing-so-we-cannot-file-one/answer/Eric-Johnson-311 

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Reform that reforms nothing

Commencing May 21, 2022, a new rule of the Utah Rules of Civil Procedure will be in force: Rule 100A. While I love the intention behind Rule 100A, reviewing the rule reveals it to be poorly structured, and I do not expect it to be followed strictly or even earnestly by most courts and attorneys. As a consequence, I do not expect Rule 100A to do much to expedite or otherwise improve the domestic relations case process.  

Here is the text of the rule:  

Rule 100A. Case Management of Domestic Relations Actions. 

(a) Case management tracks. All domestic relations actions, as defined in Rule 26.1, will be set for a case management conference before the court, or a case manager assigned by the court, after an answer to the action is filed. At the case management conference, the court or a case manager assigned by the court must determine into which of the following tracks the case will be placed: 

(1) Track 1: Standard Track. This category includes all cases that do not require expert witnesses or complex discovery. The court will certify a Track 1 case directly for trial. If the parties have not yet mediated, the court will order the parties to participate in good faith mediation before the trial takes place. 

(2) Track 2: Complex Discovery Track. This category includes cases with complex issues that require extraordinary discovery, such as valuation of a business. For a Track 2 case, at the case management conference the court will set a discovery schedule with input from the parties and schedule the case for a pretrial hearing. 

(3) Track 3: Significant Custody Dispute Track. This category includes cases with significant custody disputes, including custody disputes involving allegations of child abuse or domestic violence. For a Track 3 case, at the case management conference the court and parties will address: 1) whether a custody evaluation is necessary, and, if so, the form of the evaluation and appointment considerations; and 2) whether appointment of a private guardian ad litem is necessary, and if so, the scope of the appointment and apportionment of costs. The court will prepare and issue any resulting orders appointing a custody evaluator or guardian ad litem and schedule the case for either a pretrial hearing or a custody evaluation settlement conference. 

(b) The court may set additional hearings as necessary under Rules 16 or 101. Nothing in this rule prohibits a court from assigning a case to more than one track, at the court’s discretion, or otherwise managing a case differently from the above guidelines for good cause. 

My comment and critique follows below.  

    • After the answer to the complaint or petition for divorce is filed, the case will be set for a case management conference before the court, or a “case manager assigned by the court,” (as of the time this blog post is written we have no idea what “a case manager assigned by the court” is, what a “case manager” does, or who can qualify to be a “case manager”). Case management conferences usually go nowhere because nobody wants to be held to a deadline if he/she can avoid it, so nothing in Rule 100A gives me any reason to believe that a Rule 100A case management conference will be any exception to the current SOP. 
    • Moreover, because At the case management conference, the court or a case manager assigned by the court must determine on which track the case is: 
    • Track 1 cases are cases “that do not require” expert witnesses or complex discovery. Track 2 cases are cases with complex issues “that require” extraordinary discovery.  
    • How anyone would or could know whether a case requires expert witness or complex discovery at this early stage of the case the rule does not explain.  
    • While I acknowledge that many divorce cases are not complex, what careful attorney or litigant would want to forego the option of expert witnesses or extraordinary discovery without first conducting basic discovery? I wouldn’t.  
    • Track 3 cases are those that involve “significant custody disputes.” In actual practice, with rare exception, any case involving a dispute over the custody and parent-time awards involves “significant custody disputes.” Any disputed child custody case is going to qualify for Track 3. Adhering to Track 3 constitutes business as usual; it would do nothing to expedite or improve the domestic relations litigation process or experience.  
    • In my opinion, in light of A) far faster, more accurate and probative, and less expensive alternative to the conventional custody evaluation process; and B) the way custody evaluations are performed in Utah, virtually every custody evaluation is unnecessary; and  
    • Rule 100A does not articulate any criteria by which the question of whether a custody evaluation “is necessary” is resolved.  
    • As to determining “the form of the evaluation,” I have yet to have a court determine the “form” of the evaluation when I have proposed certain elements of the form and of the process to be followed. Most judges and commissioners avoid addressing the matter altogether by claiming (falsely) that the form and process of the evaluation is dictated by the evaluator (which is nonsense; while the evaluator certainly can request that the evaluation proceed under certain terms and conditions the evaluator proposes, nowhere in Utah Code of Judicial Administration Rule 4-903 (which governs the procedure for seeking and performing custody evaluations) does it give the evaluator absolute control over the “form of the evaluation”).  
    • As to “whether appointment of a private guardian ad litem is necessary,” rarely, if ever, have I experienced a guardian ad litem (GAL) adding value to the fact-finding in or the just resolution of a case. GALs are generally even less useful than custody evaluators. Where a custody evaluator and GAL are appointed, the result is wasted time and money, as well as confusion.  
    • I do not see why under tracks 2 and 3 a trial date is set and the other deadlines for the case determined by working backward from the trial date. Setting a trial date and then setting the other deadlines by working backward from the trial date appears to me to be an effective way of ensuring that the parties work more expeditiously than setting the trial date after the parties finally determine that there is nothing more to do (or claim that they need to do) pre-trial.  

I predict that Rule 100A will go down in history, as are most so-called improvement efforts of the court system, as a well-intentioned half measure, i.e., one that was neither crafted nor implemented well.  

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

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What is the basis for everything I have to do for my Utah divorce case?

What is the legal basis for all the hoops I have to jump through in my Utah divorce case?

This is a great question. It’s a question I often ask myself. Here is the answer. 

Why do I have to submit an “affidavit of jurisdiction and grounds”? 

See Utah Code § 30-3-1.  Procedure — Residence — Grounds. 

§ 30-3-1.  Procedure — Residence —Grounds.

(1) Proceedings in divorce are commenced and conducted as provided by law for proceedings in civil causes, except as provided in this chapter. 

(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action. 

(3) Grounds for divorce: 

(a) impotency of the respondent at the time of marriage; 

(b) adultery committed by the respondent subsequent to marriage; 

(c) willful desertion of the petitioner by the respondent for more than one year; 

(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life; 

(e) habitual drunkenness of the respondent; 

(f) conviction of the respondent for a felony; 

(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner; 

(h) irreconcilable differences of the marriage; 

(i) incurable insanity; or 

(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation. 

***** 

(d) In all actions the court and judge have jurisdiction over the payment of alimony, the distribution of property, and the custody and maintenance of minor children, as the courts and judges possess in other actions for divorce. 

 § 30-3-4.  Pleadings — Decree — Use of affidavit — Private records.

(1) 

***** 

(b) A decree of divorce may not be granted upon default or otherwise except upon legal evidence taken in the cause. If the decree is to be entered upon the default of the respondent, evidence to support the decree may be submitted upon the affidavit of the petitioner with the approval of the court. 

(c) If the petitioner and the respondent have a child or children, a decree of divorce may not be granted until both parties have attended the mandatory course described in Section 30-3-11.3 or 30-3-11.4, and have presented a certificate of course completion to the court. The court may waive this requirement, on its own motion or on the motion of one of the parties, if it determines course attendance and completion are not necessary, appropriate, feasible, or in the best interest of the parties. 

(d) All hearings and trials for divorce shall be held before the court or the court commissioner as provided by Section 78A-5-107 and rules of the Judicial Council. The court or the commissioner in all divorce cases shall enter the decree upon the evidence or, in the case of a decree after default of the respondent, upon the petitioner’s affidavit

 § 30-3-10.  Custody of a child — Custody factors.

(1) If a married couple having one or more minor children are separated, or the married couple’s marriage is declared void or dissolved, the court shall enter, and has continuing jurisdiction to modify, an order of custody and parent-time. 

Why do I have to submit an “affidavit of income verification and compliance with child support guidelines”?  

Why do I have to provide all of that information about me, my ex-spouse, and my children

§ 30-3-10.17.  Social security number in court records.

The social security number of any individual who is subject to a divorce decree, support order, or paternity determination or acknowledgment shall be placed in the records relating to the matter.

 § 78B-12-201.  Procedure — Documentation — Stipulation.

(1) In any matter in which child support is ordered, the moving party shall submit: 

(a) a completed child support worksheet; 

(b) the financial verification required by Subsection 78B-12-203(5); 

(c) a written statement indicating whether or not the amount of child support requested is consistent with the guidelines; and 

(d) the information required under Subsection (3). 

(2)  

(a) If the documentation of income required under Subsection (1) is not available, a verified representation of the other party’s income by the moving party, based on the best evidence available, may be submitted. 

(b) The evidence shall be in affidavit form and may only be offered after a copy has been provided to the other party in accordance with Utah Rules of Civil Procedure or Title 63G, Chapter 4, Administrative Procedures Act, in an administrative proceeding. 

(3) Upon the entry of an order in a proceeding to establish paternity or to establish, modify, or enforce a support order, each party shall file identifying information and shall update that information as changes occur with the court that conducted the proceeding. 

(a) The required identifying information shall include the person’s social security number, driver’s license number, residential and mailing addresses, telephone numbers, the name, address and telephone number of employers, and any other data required by the United States Secretary of Health and Human Services.

§ 78B-12-203.  Determination of gross income — Imputed income.

(4)  

***** 

(b) Each parent shall provide verification of current income. Each parent shall provide year-to-date pay stubs or employer statements and complete copies of tax returns from at least the most recent year unless the court finds the verification is not reasonably available. Verification of income from records maintained by the Department of Workforce Services may be substituted for pay stubs, employer statements, and income tax returns. 

Rule Allowing Affidavits 

Utah Rules of Civil Procedure, Rule 104. Divorce decree upon affidavit. 

A party in a divorce case may apply for entry of a decree without a hearing in cases in which the other party fails to make a timely appearance after service of process or other appropriate notice, waives notice, stipulates to the withdrawal of the answer, or stipulates to the entry of the decree or entry of default. An affidavit in support of the decree must accompany the application. The affidavit must contain evidence sufficient to support necessary findings of fact and a final judgment. 

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

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Cameras in court, cheap entertainment or a way to achieve justice?

Are cameras in the courtroom, a cheap form of reality television, or a better way to achieve justice?

This is a subject that is near and dear to my heart, both as a lawyer and as a news reporter. 

It’s not hard to understand why some people would feel uncomfortable having news reporters, including but not limited to video cameras and audio recording devices, in a public court proceeding. Rarely is a lawsuit something that the parties to the lawsuit want to become public knowledge. 

Still, there are at least two very good reasons for cameras in the courtroom that open the courtrooms to greater public access: fostering 1) court accountability; and 2) public education. 

“An educated citizenry is a vital requisite for our survival as a free people.” (author unknown) 

“The requirement of access is particularly important, in two senses. First, law should be epistemically accessible: it should be a body of norms promulgated as public knowledge so that people can study it, internalize it, figure out what it requires of them, and use it as a framework for their plans and expectations and for settling their disputes with others.” (Stanford Encyclopedia of Philosophy) 

And as Justice Brandeis so aptly stated: 

“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” 

These are the reasons why, with rare exception, court proceedings are open to the public. A public that has access to court proceedings are better informed about the legal system and the laws it administers. Denying the public access to court proceedings inherently both breeds suspicion and distrust and sows the seeds of corruption. 

If we don’t make the proceedings of our courts open to public oversight and scrutiny, then they can quickly devolve into star chambers where judges, juries, and lawyers could and would run amok, where justice could and would be perverted and outright denied. We develop and use technology to improve access to every good thing. Greater, easier access to public court proceedings through technology is not and cannot be an exception. 

After balancing the litigants’ and other participants’ desire for privacy against public oversight and scrutiny, if we must on one side or the other, public oversight and scrutiny wins, as well it should. The right of the public to know what goes on in the halls of government is the foundation for First Amendment freedom of the press. Bar the courthouse doors to the press, and you bar the court house doors to the public. 

And in an age when court proceedings are increasingly taking place via remote videoconference (and consequently with less frequency in physical court houses where the people can personally enter the court rooms to observe public court proceedings), the public needs to work harder than ever to ensure public access to public court proceedings is preserved. When members of the public can be excluded from public court proceedings with the simple click of a mouse or stroke of a key, I know from personal experience that many judges can’t or don’t resist the temptation to shut everyone out. There are all kinds of excuses judges will proffer for this undemocratic, unconstitutional, and dangerous behavior, but none hold water. 

As with any technology, cameras in the courtroom can be used for good or ill. But fear of cameras being abused in the courtrooms is no reason to impose an absolute prohibition against cameras and their responsible, beneficial uses in the courtrooms. 

Some try to argue that the mere presence of a camera in a courtroom can make witnesses nervous and self-conscious, thus discouraging them from being candid and forthcoming. The argument is weak. We live in a society where everyone carries a camera with him/her. You can go anywhere without a camera pointed at you in a store, in a parking lot, at school, at work, etc. Indeed, you’d be hard-pressed to find a courtroom of record that does not have at least one hidden camera and microphone in them for security purposes, if for no other reason. While the merits of surveillance culture are debatable, the fact is we are more accustomed to the presence of cameras than we ever have been in history (and that will only deepen over time). Thus, to suggest that the mere presence of cameras recording proceedings in the courtroom would disrupt the proceedings, adversely affect the administration of justice, and generally do more harm than good is simply disingenuous. 

The public not only deserves to know how its courts function, it needs to know how its courts function, if it is to ensure that the courts function properly for the public good. 

To put it more bluntly (but no less sincerely), unobtrusive cameras in the courtroom help keep courtroom proceedings honest. They preserve, even increase, public oversight and scrutiny of court proceedings, which is, on balance, a net benefit to the administration of justice for the public at large. 

It is crucial that the public have access to court proceedings so that the courts are subject to public oversight and accountability. It’s a right. Besides, he or she who would close the courthouse doors to the public would squander opportunities to educate and inform the public about the law and how it is administered properly (and improperly). To close the courthouse doors to the public is to show disrespect and contempt for the public, which can only breed public contempt for and distrust of the courts. 

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

https://www.quora.com/Are-cameras-in-the-courtroom-a-cheap-form-of-reality-television-or-a-better-way-to-achieve-justice/answer/Eric-Johnson-311  

 

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How do I find out what my divorce case number was, if I’ve forgotten it?

It’s easy if you know what you’re doing. And if you don’t know what you’re doing, it’s easy to find someone who does know what to do. 

In many jurisdictions, it’s difficult to find to look up online the telephone numbers and addresses for the courthouse where your divorce action was filed and/or where your divorce records are stored. People who are lawyers aren’t aware of the fact that there are many different kinds of courts. There isn’t just one courthouse where everything, including your divorce case, gets handled. There are different kinds of courts for different kinds of legal matters. Finding the court where your information can be found is difficult to find online.  

But you might as well take a stab and do an online search for a few minutes to see if you can find the telephone number and/or address you need. If you do, then the search is over. 

If, however, despite your online search efforts, you cannot find the courthouse you need to contact or go to, there is another way. Call a local divorce attorney and explain what you need. That attorney or that attorney’s office staff can help you get this information. They may charge you a small fee for this service, but that’s to be expected.  

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

https://www.quora.com/How-do-I-find-the-case-number-for-my-California-divorce-and-which-agency-do-I-contact/answer/Eric-Johnson-311

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What is a court order and its types?

Here’s the definition from Black’s Law Dictionary (11th ed. 2019): 

ordern. (16c) 1. A command, direction, or instruction. See MANDATE (1). 2. A written direction or command delivered by a government official, esp. a court or judge. • The word generally embraces final decrees as well as interlocutory directions or commands. — Also termed court order; judicial order. See MANDAMUS. 

“An order is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings.” 1 Henry Campbell Black, A Treatise on the Law of Judgments § 1, at 5 (2d ed. 1902). 

“While an order may under some circumstances amount to a judgment, they must be distinguished, owing to the different consequences flowing from them, not only in the matter of enforcement and appeal but in other respects, as, for instance, the time within which proceedings to annul them must be taken. Rulings on motions are ordinarily orders rather than judgments. The class of judgments and of decrees formerly called interlocutory is included in the definition given in [modern codes] of the word ‘order.’” 1 A.C. Freeman, A Treatise of the Law of Judgments § 19, at 28 (Edward W. Tuttle ed., 5th ed. 1925). 

What kinds of orders are common in a Utah divorce action? Again, I defer to Black’s Law Dictionary: 

- enforcement order. A court’s order issued to compel a person or entity to comply with a statute, regulation, contract provision, previous court order, or other binding authority. 

- ex parte order (eks pahr-tee) (18c) An order made by the court upon the application of one party to an action without notice to the other. 

- final order. (16c) An order that is dispositive of the entire case. See final judgment under JUDGMENT (2). 

- final judgment. (18c) A court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fees) and enforcement of the judgment. — Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order. 

– income-withholding order (1986) A court order providing for the withholding of a person’s income by an employer, usu. to enforce a child-support order. — Abbr. IWO. — Also termed wage-withholding order; wage-assignment order; wage assignment. Cf. attachment of wages under ATTACHMENT (1). 

- interim order. (18c) 1. A temporary court decree that remains in effect for a specified time or until a specified event occurs. 2. See interlocutory order. 

- interlocutory order (in-tər-lok-yə-tor-ee) (17c) An order that relates to some intermediate matter in the case; any order other than a final order. • Most interlocutory orders are not appealable until the case is fully resolved. But by rule or statute, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class-certification orders) to be immediately appealed. — Also termed interlocutory decision; interim order; intermediate order. See appealable decision under DECISION (1); COLLATERAL-ORDER DOCTRINE. 

- maintenance order. See SUPPORT ORDER. 

– support order (1948) A court decree requiring a party (esp. one in a divorce or paternity proceeding) to make payments to maintain a child or spouse, including medical, dental, and educational expenses. — Also termed maintenance order. 

- foreign support order. (1948) An out-of-state support order. 

- minute order. (1918) 1. An order recorded in the minutes of the court rather than directly on a case docket. • Although practice varies, traditionally when a trial judge is sitting officially, with or without a court reporter, a clerk or deputy clerk keeps minutes. When the judge makes an oral order, the only record of that order may be in the minutes. It is therefore referred to as a minute order. — Also termed minute entry. 2. A court order not directly relating to a case, such as an order adopting a local rule of court. • In this sense, the court is not a single judge acting in an adjudicatory capacity, but a chief judge, or a group of two or more judges, acting for a court in an administrative or some other nonadjudicatory capacity. 

- modification order (1936) Family law. A post-divorce order that changes the terms of child support, custody, visitation, or alimony. • A modification order may be agreed to by the parties or may be ordered by the court. The party wishing to modify an existing order must show a material change in circumstances from the time when the order sought to be modified was entered. See CHANGE IN CIRCUMSTANCES. 

- pretrial order (1939) A court order setting out the claims and defenses to be tried, the stipulations of the parties, and the case’s procedural rules, as agreed to by the parties or mandated by the court at a pretrial conference.  

- emergency protective order. (1976) A temporary protective order granted on an expedited basis, usu. after an ex parte hearing (without notice to the other side), most commonly to provide injunctive relief from an abuser in a domestic-violence case; esp., a short-term restraining order that is issued at the request of a law-enforcement officer in response to a domestic-violence complaint from a victim who is in immediate danger. • A victim of domestic violence can obtain an EPO only through a law-enforcement officer. There is no notice requirement, but the abuser must be served with the order. The duration of an EPO varies from three to seven days, depending on state law. — Abbr. EPO. Cf. TEMPORARY RESTRAINING ORDER. 

- permanent protective order. (1981) A protective order of indefinite duration granted after a hearing with notice to both sides; esp., a court order that prohibits an abuser from contacting or approaching the protected person for a long period, usu. years. Despite the name, permanent orders often have expiration dates set by state law. An order may also require the abuser to perform certain acts such as attending counseling or providing financial support for the protected person. — Abbr. PPO. 

– qualified domestic-relations order (1984) A state-court order or judgment that relates to alimony, child support, or some other state domestic-relations matter and that (1) recognizes or provides for an alternate payee’s right to receive all or part of any benefits due a participant under a pension, profit-sharing, or other retirement benefit plan, (2) otherwise satisfies § 414 of the Internal Revenue Code, and (3) is exempt from the ERISA rule prohibiting the assignment of plan benefits. • Among other things, the QDRO must set out certain facts, including the name and last-known mailing address of the plan participant and alternate payee, the amount or percentage of benefits going to the alternate payee, and the number of payments to which the plan applies. The benefits provided under a QDRO are treated as income to the actual recipient. IRC (26 USCA) § 414(p)(1)(A); 29 USCA § 1056(d)(3)(D)(i). — Abbr. QDRO. 

– restraining order (1876) 1. A court order prohibiting family violence; esp., an order restricting a person from harassing, threatening, and sometimes merely contacting or approaching another specified person. • This type of order is issued most commonly in cases of domestic violence. A court may grant an ex parte restraining order in a family-violence case if it is necessary to (1) achieve the government’s interest in protecting victims of family violence from further abuse, (2) ensure prompt action where there is an immediate threat of danger, and (3) provide governmental control by ensuring that judges grant such orders only where there is an immediate danger of such abuse. — Also termed protective order; order of protection; stay-away order. See ex parte motion under MOTION (1). 2. TEMPORARY RESTRAINING ORDER. 3. A court order entered to prevent the dissipation or loss of property. 

- scheduling order. (1959) A court’s order that sets the time deadlines for different procedural actions in a case, such as amending pleadings, filing motions, and completing discovery. 

- separation order. (1882) A court order granting a married person’s request for a legal separation. See SEPARATION AGREEMENT (1). 

- show-cause order. (1925) An order directing a party to appear in court and explain why the party took (or failed to take) some action or why the court should or should not impose some sanction or grant some relief. — Abbr. SCO. — Also termed order to show cause (OSC; OTSC); rule to show cause; show-cause rule. 

- supervision order. (1938) Family law. A court’s order placing a child or young person under the supervision of a child-welfare agency or a probation officer in a case of neglect, abuse, or delinquency. 

– support order (1948) A court decree requiring a party (esp. one in a divorce or paternity proceeding) to make payments to maintain a child or spouse, including medical, dental, and educational expenses. — Also termed maintenance order. 

- foreign support order. (1948) An out-of-state support order. 

- temporary order. (1808) A court order issued during the pendency of a suit, before the final order or judgment has been entered. 

– temporary restraining order (1861) 1. A court order preserving the status quo until a litigant’s application for a preliminary or permanent injunction can be heard. • A temporary restraining order may sometimes be granted without notifying the opposing party in advance. Cf. emergency protective order under PROTECTIVE ORDER. 2. See ex parte injunction under INJUNCTION. — Abbr. TRO. — Often shortened to restraining order.  

- visitation order (1944) Family law.1. An order establishing the visiting times for a noncustodial parent with his or her child. 2. An order establishing the visiting times for a child and a person with a significant relationship to the child. • Such an order may allow for visitation between (1) a grandparent and a grandchild, (2) a child and another relative, (3) a child and a stepparent, or (4) occasionally, a child and the child’s psychological parent. — Also termed access order. 

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

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How do you go about getting a copy of your divorce papers?

If you have a lawyer: your lawyer can and should give you a copy. 

If you don’t have a lawyer: 

  • go to the courthouse (if the courthouse is open and allowing members of the public to enter the building) and go to the clerk’s office to request a copy (for which you will likely be required to pay); or 
  • call or e-mail the court clerk’s office to request that a copy be mailed or emailed to you (again, don’t be surprised if you are required to pay for the copy, even if it’s emailed to you). 

If you don’t have the telephone number or e-mail address for the court clerk’s office, looking them up online can be hard, if you are not familiar with the precise name of the court where your divorce case was handled. 

So if you find it difficult to find this information, try calling a local attorney’s office, apologize for inconveniencing them, but explain that you are trying to get a copy of your divorce decree (or other documents from the court’s file), and see if that attorney’s office will give you the telephone number or e-mail address. 

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

https://www.quora.com/How-do-you-go-about-getting-a-copy-of-your-divorce-papers/answer/Eric-Johnson-311?prompt_topic_bio=1  

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My ex is a nut job. I was served with court papers for paternity, child support, and custody for unnamed yet to be born child #1 & #2. Problem is I’m not pregnant. What do I do?

Thanks for the laugh. 

In 25 years of family law practice I’ve never heard of a man seeking custody of children (plural) that do not exist, nor have I ever heard of a man seeking custody of a child (let alone children (plural)) that were never even conceived. 

To answer your question generally, and without knowing in what jurisdiction you reside or where the paternity petition was filed (consult an attorney in the applicable jurisdiction—don’t try to handle this by yourself), you should be able to dispose of the petition easily by what is known as a motion for summary judgment, after being ordered by the court to have you tested to determine whether you are pregnant and then having the court determine, based upon the court-ordered test, that you are not pregnant. 

A motion for summary judgment is won when there are no disputed material facts, thus making a trial unnecessary. A motion for summary judgment (or whatever process or name it may be known by in your jurisdiction) that establishes you are not pregnant would prove there is no basis for a paternity action in the first place is why and how the court would then rule in your favor without having to prepare for or even go to a trial. 

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

https://www.quora.com/My-ex-is-a-nut-job-I-was-served-with-court-papers-for-paternity-child-support-and-custody-for-unnamed-yet-to-be-born-child-1-2-Problem-is-I-m-not-pregnant-What-do-I-do/answer/Eric-Johnson-311  

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Does saying after an answer “I truly believe that”, “it truly is”, damage your credibility as a lay witness in court or is it better to don’t add this type of qualifiers?

First, whether you “truly believe” something or “find it hard to believe,” testifying to something you believe or don’t believe, as opposed to testifying as to something you know, is the first and biggest problem. 

Testifying about something you believe (but do not know) is inadmissible testimony. Testifying based upon belief (as opposed to personal knowledge)—whether you testify that you “believe” or “don’t believe” a thing to be true, is known in legal parlance as “speculative” and speculative testimony is objectionable and inadmissible. Speculation is no different than guessing, and it would be frightening unfair to decide a case based upon beliefs, instead of based upon facts. 

Second, and somewhat ironically, trying to qualify or bolster your statement to make it more believable may have the opposite effect. Adding qualifiers to your testimony may raise the question as to why you would add them. For example, if you were to answer a question with “To be honest, I do(n’t) know,” use of the phrase “to be honest” is unnecessary. So, one could (could, not must, but could) infer that someone who starts a statement with “to be honest” may often answer questions dishonestly as a general matter, which is why the person distinguishes between when he/she speaks honestly and when he/she does not. So why introduce the doubt as to your credibility at all when there is no need to do so? Better to say merely “I don’t know” and “yes” and “no” than to say, “To be honest, I do(n’t) know” or “To tell the truth, I do(n’t) know”. 

Many people have the linguistic tic or affectation of responding to questions with the phrase “I believe” when in fact such people are not guessing or speculating but know. Imagine a situation where when the witness left the office on a particular day is a crucial fact to be established. Imagine that the witness knows precisely when he/she left the office that day, i.e., 5:15 p.m. When such a person is testifying and says, in response to the question as to what time he/she left the office at the end of the day, “I believe I left the office at 5:15 p.m.,” then the witness is needlessly confusing the judge and/or jury. Saying, “I believe” before making a statement of fact changes that statement of fact into a statement of speculation, a guess. 

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

https://www.quora.com/Does-saying-after-an-answer-I-truly-believe-that-it-truly-is-damage-your-credibility-as-a-lay-witness-in-court-or-is-it-better-to-dont-add-this-type-of-qualifiers/answer/Eric-Johnson-311  

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Can an unemployed alienated parent be forced to help pay for a car for the child?

First, unless there is a statute or court order that requires a parent to purchase a car for a child, or that requires both parents to share the costs of purchasing a car for a child, it’s unlikely that a court could order a parent to purchase a car for a child or even to pay a portion of the costs of a car for a child.

In some jurisdictions, mine included, it might be possible, in the absence of an already existing statute or court order requiring a parent or parents to purchase a car for a child, to obtain a court order requiring that one parent or both parents purchase a car for a child, if it could be shown that the child needs a car to survive or perhaps to pursuant education and is unable to obtain that car without the parent(s) purchasing it.

You’ll notice to this point that I haven’t even mentioned the issue of parental alienation. This was intentional. And that is because 1) courts are reluctant to consider, much less acknowledge, the existence of parental alienation; and 2) even if a parent might be engaging in parental alienation, it’s hard to see how that issue could affect whether the child needs or does not need a car.

It may (may) be a valid argument that if a parent is alienating a child from the other parent, then it is fair to punish the alienating parent (or even the alienated child) by having the alienating parent bear all the costs of certain expenses for the alienated child (which punishment we also hope will motivate the alienating parent to stop alienating the child from the other parent and, under the right circumstances, motivate the child to stop giving the other parent the cold shoulder, i.e., if you want Mommy or Daddy to buy you things, then quit treating Mommy and Daddy like crap).

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

https://www.quora.com/Can-an-unemployed-alienated-parent-be-forced-to-help-pay-for-a-car-for-the-child/answer/Eric-Johnson-311?prompt_topic_bio=1

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The biological father of my child filed to establish paternity. He’s unfit and I haven’t been served yet. How can I handle this?

The biological father of my child filed to establish paternity. He’s unfit and I haven’t been served yet. How can I handle this? 

My answer applies to both mothers and fathers in this situation: 

  1. Start preparing for the showdown now. Don’t wait for trouble to find you. 
  2. Don’t try to handle this without a good lawyer (not just any lawyer, not an “affordable” lawyer, but a good lawyer, a lawyer who is skilled in the area of child custody litigation, of good character (someone who is honest and trustworthy), and diligent (works hard to get the job done right and without wasting your time and money)). If you fail to comply with the law and court rules and lose as a result, saying “I had no lawyer” is no excuse and “I had a bad lawyer” is almost never a winning argument. 
  3. The best way to win your case is with independently verifiable proof. The next best way to win is with highly persuasive evidence. The difference between proof and evidence. Proof is objective, absolute. Not in doubt. Evidence weighs on the balance of probabilities. Sometimes the evidence can be of such a nature that it is highly persuasive and convincing, but it always leaves the door open. 
  4. The riskiest way to win your case is on a “your word against mine” basis (and I would be dishonest if I did not mention that in my experience most courts tend to find the testimony of mothers far more credible than the testimony of fathers—it’s not fair, it’s sexist, but it happens nevertheless, and more often than not, in my experience). 
  5. Understand and accept that this process can take a long time and cost a lot of money and take a terrible toll on you emotionally and psychologically. Budget accordingly. Stay grounded. Watch you drug and alcohol intake. See a therapist and/or a minister for help with coping skills and a check on whether your emotions are clouding your judgment. Get some exercise, even it’s just a brisk walk each day. Don’t be afraid to lean on willing friends and family for moral support. 

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

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There is a proposal to make more Utah court records “private” that are currently public.

There is a proposal to make more Utah court records “private” that are currently public.

Here is the proposed amendment to Utah Code of Judicial Administration Rule 4-202.02 (Records Classification):

http://www.utcourts.gov/utc/rules-comment/wp-content/uploads/sites/31/2020/10/4-202-02-For-public-comment_financial-info-10-26-20.pdf

I do not see any ostensible sound public policy basis behind wanting to deem more and more court records “private”.

I understand the desire for privacy, but privacy is not an unquestionable good in all situations.

The details of litigation in taxpayer-funded courts whose proceedings are public record and open to the public are, with rare exception, subject to public access and scrutiny to ensure that the courts operate in the clear light of day A) as a check on corruption of: the legal process, of judges and court personnel, of lawyers, and of litigants and B) to maintain a real and substantive connection between the public/taxpayer and the administration of justice in society. When any branch of government operates in secret (and/or seeks to operate in secret more) that does nothing to foster or sustain public confidence in it.

The information this rule amendment would make private does not strike me as information that has done significant, if any, harm or any noticeable harm as a result of being public to this point. This proposal appears to be a solution that is not only in search of a problem, but a poorly analyzed and conceived “solution” at that.

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

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