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Tag: court

You Reap What You Sow.

I’m Braxton Mounteer, a legal assistant. I’ve written and talked about this problem before, but it’s a recurring problem and a serious one. It’s hard enough to muster the courage to hire a divorce lawyer and pay so much money to your lawyer to represent you in your divorce in the hope that your lawyer can protect you, guide you through the divorce process, help you make sense of what’s going on, and bring you to the end of the divorce process with an equitable outcome. So why do so many clients make it so difficult for their lawyers to help them? Why do so many clients procrastinate? Why do they ignore or put off until the last minute their attorneys’ requests for vital documents. Why do they evade or give incomplete or outright false answers to important questions? Why do so many clients act as though their wish is the lawyer’s command? Look, we know this is a hard process for you. We know it’s hard to manage all of life’s challenges without a divorce being added to the mix. We know you don’t like having to go through your financial records and share them with strangers. We know you don’t want to go over your criminal history, your infidelity, your substance abuse, and other examples of your bad judgment you’ve been trying to leave in the past and move on from and even forget. We know you don’t like what feels like intrusions into your privacy, your mental and physical health history, relationships between you and your spouse, between you and your children, between you and other members of your extended family and circle of friends. We know that you hate already being in dire financial straits before you had to start budgeting to pay for a divorce lawyer. We know you don’t like feeling ignorant of the legal system and all the terms getting thrown around as the lawyers and the courts discuss your fate. We know how tempting it is to believe if you simply bury your head in the sand all of this will go away. But it won’t. It’s tempting to fool yourself into believing that once you hire a divorce lawyer it’s all in your lawyer’s hands. But it’s not. If you have a house, some retirement savings, minor children, if you are facing the prospect of paying or receiving alimony, if there’s substantial marital debt, then you will almost surely benefit in the long run from investing in the services of a skilled divorce lawyer. The most effective lawyers work with a client, not merely for a client. Lawyers are called counselors for a reason; They confer with you, they advise you, but the choices are yours to make. Wouldn’t you rather have as many options and choices open to you? Wouldn’t you rather act instead of being acted upon? In a very real sense, how much your lawyer can help you depends upon how much you help your lawyer. You reap what you sow.

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Gaming Child Support as the Child Support Recipient

Many people complain (justifiably) about child support in this regard: parents who qualify to receive child support or to receive more child support by being unemployed, underemployed or who deliberately work lower paying jobs than they are qualified to do, and who then spend those support funds on themselves, not on the needs of the children.

It’s a very good point. We all know (and so do the courts) about child support recipients who (for lack of a better word) “embezzle” child support funds for their own personal use. It happens frequently, unfortunately. And it is hard to detect and to prove to a court. Even if one can prove that child support funds are being misspent by the recipient parent, most courts throw their hands in the air and say, effectively, “OK, so I agree that mom/dad is misspending the funds. What do you want me to do now? Order that you pay less child support? That will only result in the children having less, ‘cuz the recipient ain’t gonna have an epiphany and start spending the lower amount of support on the kids.” It’s a no-win situation for the innocents (children and payor alike).

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

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I Am 14 and I Want to Live With My Dad. My Parents Have Shared Custody, but My Mom Wants to Keep Me Her Alone (And She’s Not a Good Person). How Do I Stay With My Father Full Time?

I will answer this question in the context of Utah law because I am licensed as an attorney and practice divorce and family law in the state of Utah.

For the typical child in your situation, i.e., one who wants to obtain a modified order from the court changes the award of child custody from one parent to another, there is precious little that the child can do to affect this kind of change.

In fairness, there are some good policy reasons for why this situation arises. For example:

  • Young children often have poor judgment and may not know whether residing primarily with the parent the children wants to reside is in the child’s best interest.

–   A 9-year-old child may say he/she wants to live with a particular parent not because that parent is a fit parent but just the opposite, i.e., doesn’t ensure the child completes homework, chores, doesn’t ensure the child practices good hygiene, feeds the child junk for meals, imposes no discipline, etc.

–   A tween-age or teen-age child may say he/she wants to live with a particular parent not because that parent is a fit parent but because that parent lets the child run wild, skip school, drink, smoke, take drugs, be sexually active, etc.

  • Many young children can be too easily manipulated and/or intimidated into saying that they want what they don’t really want by way of the custody and parent-time schedule.
  • Some feel that seeking the input of children on the subject of the child custody and parent-time awards “traumatizes” (this word is grossly overused in family law) children by placing them in a position where they must favor or choose one parent over another.

These are clearly factors worth carefully considering if and when a child objects to residing with a particular parent or objects to a particular custody or parent-time schedule. But too often courts invoke these factors as a reason to utterly silence and to completely ignore anything a child has to say on. Why?

Is it because all minor children are clearly unable to be taken seriously because of their status as minor children? Obviously not. While some children may be too young or too immature to have sound bases for, or to make sound arguments for, their custodial preferences, plenty of children are more than sufficiently intelligent and mature and responsible to be credible witnesses on their own behalf. And we’ll never know whether a child is a credible or an incredible witness if we don’t inquire with the child first. Courts reject the testimony of lying and incompetent witnesses all the time (as well they should), yet many courts reject a child’s testimony without giving the child a chance to speak on the grounds that they might lie, that they might be coached, and/or that they might be too stupid or naïve to be taken seriously. That’s no different than convicting a defendant without a fair trial because he “might be” guilty.

Is it because asking a child to express his/her opinions is inherently and irreparably harmful to all children, or even to most children? Obviously not. If a child tells his/her parents and the court, “Don’t ask me to talk about this,” then it may be that honoring that child’s wishes is best. By the same token, however, if a child tells his/her parents and the court something to the effect of:

  • “I have a greater stake in the child custody and parent-time awards than anyone else involved in this case.”
  • “I have experiences, observations, opinions, and desires that deserve to be considered before the court makes these decisions that will affect my life for years to come as a youth and throughout my life as an adult.”

So why do some (most, though not all) courts refuse to hear from children about their custodial preferences and the reasons for those preferences? Why do some courts muzzle the children from the outset? Why do they refuse to weigh the credibility and evidentiary value of what the children who want to be heard have to say? In my opinion, it’s laziness disguised as “prudence” and “compassion”.

So, what does a child who wants and deserves a change of custody do? This may sound radical, but it’s really not: get your own attorney to help you. That’s the legal way to do it. And it’s easier said than done. You’ll be excoriated and mocked for trying. You may even be threatened. Be prepared for all this. There are all kinds of extralegal “self-help” methods that are easier and cheap or free by comparison, but that has never been an excuse to break the rules (unless the rules are inherently unfair or administered unfairly). I encourage children in your situation to work through the system even when it’s organized and administered to work against you.

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

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What does it mean when he tries to avoid a legal fight in court for child custody?

It could mean many things when a parent avoids a legal fight in court for child custody. To identify a few things, it could mean:

  • that the parent does not want custody of the child or doesn’t care to litigate the matter.
  • that the parent believes there is no hope that he/she can prevail in the case because of various factors, such as
    • being unable to afford a competent lawyer
    • the judge’s, guardian ad litem’s, custody evaluator’s, DCFS’s, and/or law enforcement’s, etc. insurmountable bias against and animus for that party
    • the opposing party taking a scorched-earth approach to the litigation that includes doing and saying anything to win without regard for truth, decency, and/or the child’s best interest.
  • that the parent agrees with the other parent’s position on what the child custody award should be.
  • that the parent is not aware that there is pending child custody litigation involving that parent.

There could be other reason, but these are the most common, in my experience.

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

https://www.quora.com/What-does-it-mean-when-he-tries-to-avoid-a-legal-fight-in-court-for-child-custody

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If You Are Separated and She Wants Her Money for Child Support and Alimony Early Payment for the Child Support, Can She Get It by Taking You to Court?

It appears that your question is: can child support be awarded to a parent even if a divorce or child support action has not yet been filed? If that is your question, then the answer is “yes” in many jurisdictions. You’ll want to verify whether that is the case in your particular jurisdiction.

In Utah, where I practice divorce and family law, one can obtain child support without a court order by obtaining an administrative order awarding child support instead. Here is how that process works (click this link): https://ors.utah.gov/child-support/establish-child-support-orders/

Can one obtain spousal support or alimony without a court order? I can’t say as to all jurisdictions, but in Utah the answer is: no. The only order that entitles one to spousal support or alimony is a court order. Spousal support can be ordered on a temporary basis during the pendency of a divorce action before the court issues its decree of divorce.

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

https://www.quora.com/If-you-are-separated-and-she-wants-her-money-for-child-support-and-alimony-early-payment-for-the-child-support-can-she-get-it-by-taking-you-to-court-Thats-what-she-did-before-we-was-divorced

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How Long Do Child Custody Cases Usually Last, if There Isn’t Anything Super Serious or High Stakes Going On?

Great question. I wish I had a pleasing answer to it for you.

I can’t speak for all jurisdictions, but in Utah (where I practice law and handle child custody disputes), a contested child custody case in which there is nothing terribly dramatic or sensational to be addressed and resolved will usually take one to two years before it is decided by the court after the trial. Some cases may be a little shorter, some cases may take a little longer. But on average? Between one to two years.

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

https://www.quora.com/How-long-do-child-custody-cases-usually-last-if-there-isnt-anything-super-serious-or-high-stake-going-on/answer/Eric-Johnson-311

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How Long Does a Child Custody Court Hearing Take?

rprise that it usually takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing the client won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks them. No witnesses are called to testify in hearing conducted by proffer; instead, their testimony is provided by affidavit or verified declaration.

If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.

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

https://www.quora.com/How-long-does-a-child-custody-court-hearing-take/answer/Eric-Johnson-311

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What Happens at a Trial Setting/Status Conference in Family Court?

Many things can happen in status conferences in family court proceedings. One kind of status conference is a conference held for the sake of setting the trial date or dates for a case that is ready for trial.

Generally speaking, the purpose of status conferences is to help ensure that cases proceed expeditiously and properly.

In the jurisdiction where I practice divorce and family law (Utah), courts and litigants can hold status conferences for many different reasons, many of which are identified in Utah Rules of Civil Procedure Rule 16(a):

  1. expediting the disposition of the action;
  2. establishing early and continuing control so that the case will not be protracted for lack of management;
  3. discouraging wasteful pretrial activities;
  4. improving the quality of the trial through more thorough preparation;
  5. facilitating mediation or other ADR processes for the settlement of the case;
  6. considering all matters as may aid in the disposition of the case;
  7. establishing the time to join other parties and to amend the pleadings;
  8. establishing the time to file motions;
  9. establishing the time to complete discovery;
  10. extending fact discovery;
  11. setting the date for pretrial and final pretrial conferences and trial;
  12. provisions providing for the preservation, disclosure or discovery of electronically stored information;
  13. considering any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production; and
  14. considering any other appropriate matters.

Other matters specific to divorce and family law proceedings that are often subject status conferences include:

  • monitoring and ensuring that the parties exchange their initial disclosures and financial declarations timely
  • monitoring and ensuring that the parties complete their divorce orientation and education courses timely
  • monitoring and ensuring that the parties schedule and hold mediation timely

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

https://www.quora.com/What-happens-at-a-trial-setting-status-conference-in-family-court/answer/Eric-Johnson-311

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In a Divorce, Why Do Courts Want to Know About Other Persons Living in the Home, Not Involved in the Divorce and Their Income?

There could be many reasons. Here are a few of the most common (not an exhaustive list, but a list of many reasons why a court may want to know about other persons (and/or their income) living in a spouse’s/parent’s home, even if such persons are not directly involved in the divorce action):

  • Do these persons (or does this person) share living expenses with the parent with whom they reside? This question may arise when determining what the child support or alimony awards will be.
    • If so, how much do such persons contribute toward the spouse’s/parent’s living expenses?
  • Do these persons (or person) pose a danger to the parties’ children (if the parties have minor children and there is a dispute over what the child custody award is and shall be)?
    • Are they violent? Do they have violent friends or associates?
      • Do they abuse the parent?
      • Do they abuse the children?
    • Are they pedophiles?
    • Do they engage in criminal activity? Do they have friends or associates who engage in criminal activity?
    • Are they drug or alcohol abusers or addicts?
    • Are they emotionally and/or psychologically abusive toward the parent and/or children?
    • Do they engage in needlessly dangerous or risky activities in the house and around the children?
    • Do such persons contribute to the household expenses? Or are they a drain on the parent financially or emotionally, causing the parent or children to suffering financial and/or emotional hardships as a result?
    • Do they set a bad moral example for the children?

These are common and highly relevant reasons why a court may be interested to know about who lives with a spouse or parent, what kind of people such persons are, whether such persons have an income, and if so, how much their incomes are.

 

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

https://www.quora.com/In-a-divorce-why-do-courts-want-to-know-about-other-persons-living-in-the-home-not-involved-in-the-divorce-and-their-income/answer/Eric-Johnson-311

 

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Should I intentionally botch my hair follicle test?

Would it be better to botch my hair follicle test so it reads nothing, or allow the judge and the world to see what I’ve been doing the last 6 months? 

First, learn the truth about hair follicle drug test accuracy. 

Second, reduced to its essence your question is, “Should I lie/deceive?” No, you should not. 

Third, when people try to lie and deceive to gain an advantage, those who are caught in their lies and deception cannot be trusted anymore, even when they tell the truth. 

See “The Boy Who Cried ‘Wolf’”https://etc.usf.edu/lit2go/35/aesops-fables/375/the-boy-who-cried-wolf/   

I know you don’t want to suffer for your wrongdoing. Few do. But it is part of the process of being accountable, responsible, and changing for the better. 

I know you fear (and with good reason) the punishment being excessive and unfair. But that doesn’t justify engaging in more wrongdoing. Two wrongs don’t make a right. 

If you are serious about being a responsible adult and changing for the better, you may, after conferring with a good (meaning not only a skilled but a decent) lawyer want to tell the court how you wrestled with this problem to show the court that you understand the difference between truth and lies, right and wrong, paying the price for one’s wrongs, and that you want no more and no less than for the punishment to fit the crime. 

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

https://www.quora.com/Would-it-be-better-to-botch-my-hair-follicle-test-so-it-reads-nothing-or-allow-the-judge-and-the-world-to-see-what-Ive-been-doing-the-last-6-months/answer/Eric-Johnson-311    

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Legal Luddites

Some of the courts where I practice divorce and family law are intent on abandoning the innovation and improvements that remote hearings have brought (and would have otherwise continued to bring) to the overwhelming majority of family law proceedings and participants (and yes, that includes evidentiary hearings and trials). We were forced by COVID-19 to learn how to conduct court proceedings without being physically present in the courthouse, to learn how to hold hearings over Zoom (Utah courts use WebEx, which is the same kind of platform), and you know what? We did it. We not only managed to make it work, we developed ways to make it work very well (and it’s only going to get better, unless we abandon it and dismantle it, which many in the court system are trying to do).

I went to a hearing yesterday that was scheduled for 10:00 a.m. I had to leave at 9:30 a.m. to get there on time, I then had to wait for an hour and 15 minutes for my hearing to start, and I was back at the office by 12:30 p.m. my client was permitted to attend the hearing remotely, but—inexplicably—I was required to be present in court for a proffer hearing. So I had to wait for an hour and 15 minutes until the hearing. I had to drive about 50 minutes round trip to and from court, so my client had to pay me for almost 3 hours for half an hour of substantive legal work. Had I been permitted to attend the hearing remotely, I would have only had to charge the client for half an hour of work. This is inexcusable on the part of the courts. Remote hearing attendance has been the greatest innovation promoting access to justice in the last generation, and some Utah courts are bent on eradicating it (and for no good reason). Legal Luddites aren’t doing public trust in the legal system any favors.

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

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How is a narcissist exposed in a court of law?

You’re not asking the best question. 

First, understand that many divorcing people see their spouses as “narcissistic” because at the time of divorce they tend to see the worst in everything about their spouses. Little personality quirks and foibles of a spouse are magnified in the eyes of the other spouse to help the other spouse feel better about themselves and their arguments for divorce. So before you set out to “expose” your spouse as a narcissist, be sure that it’s true.  

Second, there are varying degrees of narcissism. Someone who is self-absorbed, egomaniacal, and manipulative may be irritating to live and work with, but that alone isn’t a sufficient basis to entitle a spouse to more or less alimony or child custody or parent-time, for example. The condition alone is not a sufficient reason alone to deny a parent custody or parent-time. If a parent has a flaw or handicap, it’s not the handicap that’s inherently the problem, the problem is whether that flaw or handicap has done you or the marital estate real damage, whether the flaw or handicap renders a parent unfit to exercise care and custody of the children. It’s not the narcissistic personality disorder (NPD) itself that is a problem, it’s whether the NPD sufferer is behaving in a way that causes legally recognized and punishable harm to the spouse and/or children.  

See?  

The court doesn’t know (or usually care) what it means when you subjectively say, “My spouse is a narcissist.” But the court can understand and respond to objective, independently verifiable facts, i.e., here is the proof that my spouse: 

  • gambles away the rent money;  
  • beats the kids and me; 
  • gets drunk and passes out while the kids play in the traffic;
  • lies to get away with: 
    • breaking the law; 
    • physically injuring others; 
    • avoiding accountability and responsibility; and 
    • taking advantage of others  

If your spouse is so narcissistic that he or she is doing you or the kids real harm or putting you or the kids at risk of serious harm, then you must show the court, based upon independently verifiable proof (not just your word over that of your spouse) that the other spouse/parent has done wrong, is in the process of doing wrong, attempting to do wrong, or poses a serious danger of doing harm. Only when you can show the wrong first may the cause the why or how matter. With all that stated, I concede that some judges have an uncanny ability to see the worst in people, and to be duped. You would think they’d be especially attuned and on the lookout for the liars and con-men (and women), but that often not the case. Don’t let the court be charmed and taken in by lies, brown nosing, and alarmism either. Don’t let the court play favorites or come to hasty and biased conclusions. Call out the court if and when it puts subjective feelings over objective facts (or the lack thereof). 

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

https://www.quora.com/How-is-a-narcissist-exposed-in-a-court-of-law/answer/Eric-Johnson-311  

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Is it possible to get court transcripts for custody hearings?

Every jurisdiction is different regarding which court hearings are open to the public and whether recordings of their proceedings are available to the public or even to the parties’ themselves. 

Every jurisdiction is different regarding how court proceedings are recorded too. 

Not every jurisdiction makes a written transcript of court proceedings. 

Most jurisdictions make audio or video recordings of court proceedings at a certain level, and divorce and family law proceedings are on that level. 

In the jurisdiction where I practice divorce and family law (Utah), the court makes its own audio recordings of divorce another family law court proceedings. These proceedings are open to the court, and thus the audio records of the court proceedings are public record, meaning that they are available to the public. Utah courts do not, at the trial court level, make written transcriptions of court proceedings. 

If you wanted to obtain a transcript of Utah family law court proceedings, you would need to take the audio recording of those proceedings and have them transcribed. If you wanted to use the transcription for appeals purposes, you would have to have the record transcribed by a stenographer approved by the court. It might also be possible to make your own transcript and to utilize that, if the opposing party agreed that your transcript was a true and complete and accurate transcription of the proceedings. 

Generally speaking, if all you want is a written transcription of the recordings of court proceedings for your own personal use, there’s nothing to stop you from doing so. And with advances in transcription technology, the cost of transcription have plummeted from what they were just 10 or 20 years ago. There are online transcription services such as http://Rev.com or Otter.ai – Voice Meeting Notes & Real-time Transcription that don’t do a perfect job of transcription, but do a very good job of transcribing for very little money. These types of services make obtaining transcriptions of court proceedings easier and less expensive than ever before. 

Transcripts can be very useful in establishing certain facts that may have otherwise escaped the court’s attention had they not been recorded and transcribed. Judges hate listening to audio recordings, but are much more receptive to reading a transcript of the very same recording because it’s much easier to isolate those portions of the recording in the transcript that are relevant to the issues before the court.  

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

https://www.quora.com/Is-it-possible-to-get-court-transcripts-for-custody-hearings/answer/Eric-Johnson-311  

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

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

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

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

You appear to base your idea on several false assumptions: 

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

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

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

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Is staying with parents during pregnancy grounds for filing for divorce?

You don’t have to come up with creative reasons for getting a divorce anymore in the age of no-fault divorce (in the U.S.A.). 

You don’t have to find a reason to blame your spouse for seeking a divorce from your spouse. No-fault divorce literally means “no fault” need be shown as grounds for divorce. 

With these facts in mind, you almost don’t need to come up with an excuse a “good reason” to obtain a divorce anymore. I say “almost” because while it is true that you do not have to ascribe fault to your spouse as grounds for divorce, you usually have to give a legally recognized reason for the divorce, and in the jurisdiction where I practice divorce law (Utah), the no-fault basis that I’ve yet to have a court question or reject is “irreconcilable differences of the marriage”. Technically, a court could challenge one’s claims of irreconcilable differences and, if it determines that there are not, in fact, irreconcilable differences between the spouses, the court could deny the request for a decree of divorce and dismissed the divorce action, but I’ve never seen that happen in the 25 years I’ve been practicing law to date, and I doubt I ever will.  

Many would question the wisdom of no-fault divorce laws and their unintended consequences, but that doesn’t change the fact that no-fault divorce exists and exists in every state in the United States of America. 

So if you want a divorce, but you don’t have the typical fault-based grounds available to you, it doesn’t matter anymore. 

Now, to answer your specific question: if you sought a divorce purely on the grounds that your spouse lived with her parents during pregnancy, that would probably fail as grounds for divorce. However, if you were to allege that her separation from you for the duration of her pregnancy has caused irreconcilable differences, and you could prove that the marriage is irretrievably broken as a result, you’d win. You’d get a divorce. You might look like a heel for divorcing on those grounds, especially if your wife had good reason to need to spend most or all of her pregnancy in the presence and care of her parents (such as a high-risk pregnancy where she would need someone constantly with her in the event of an emergency or a sudden need to visit the hospital or doctor), but if you just couldn’t stand the fact that your wife stays with her parents during pregnancy and that cause you to give up on the marriage, the court would probably give you a divorce on the grounds of irreconcilable differences. 

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

https://www.quora.com/Is-staying-with-parents-during-pregnancy-a-divorce-cause/answer/Eric-Johnson-311

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How do you prove duress in a divorce?

I will answer your question in the context of Utah law because I practice divorce and family law in the state of Utah.  

First, here is how duress is defined in Utah: 

¶ 23 Under Utah law, duress exists when “a party’s manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative.” Andreini v. Hultgren, 860 P.2d 916, 921 (Utah 1993) (quoting Restatement (Second) of Contracts § 175(1) (1979)). Hence, two elements must be shown to exist in order to prove duress. First, there must be some improper threat made by the defendant. Second, that threat must leave the victim/plaintiff with no reasonable alternative but to consent to the contract. Neither element has been satisfied here. 

***** 

[Footnote 5] See Restatement (Second) of Contracts § 176(2) (1981), which states as follows: 

(2) A threat is improper if the resulting exchange is not on fair terms, and 

(a) the threatened act would harm the recipient and would not significantly benefit the party making the threat, 

(b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or 

(c) what is threatened is otherwise a use of power for illegitimate ends. 

(Boud v. SDNCO, Inc., 54 P.3d 1131 (Utah 2002)) 

This exact question, i.e., how do you prove duress, came up in the Utah divorce case of Sweet v. Sweet (138 P.3d 635, 2006 UT App 216): 

MEMORANDUM DECISION 

¶ 1 Respondent Melanie Sweet (Wife) argues that the district court erred when it denied her motion to set aside the stipulated divorce decree between her and her ex-husband, Petitioner James Sweet (Husband), pursuant to rule 60(b) of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 60(b). We affirm. 

¶ 2 First, Wife argues that the district court erred when it ruled that marital contracts are held to the same standard as any other contract. To support this assertion, she cites to the district court’s minute entry stating that to “set aside a stipulated [d]ecree of [d]ivorce, a party must, at a minimum, produce evidence that would constitute a defense to a common contract.” 

123¶ 3 In addressing the stipulated divorce decree between Wife and Husband, we first “acknowledge[ ] the general authority of spouses … to arrange property rights by a contract that is recognized and enforced by a court in the event of a divorce.” Reese v. Reese, 1999 UT 75, ¶ 24, 984 P.2d 987. And although the Utah Supreme Court has held that “contracts between spouses … are not necessarily judged on the same terms as contracts executed by persons operating at ‘arm’s length,’ ” we note that the court never set forth a different test or standard of review for such contracts. Id. Instead, the court has stated the general principle that “spouses … may make binding contracts with each other and arrange their affairs as they see fit, insofar as the negotiations are conducted in good faith … and do not unreasonably constrain the court’s equitable and statutory duties.” Id. at ¶ 25. In effect, the parties “are held to the highest degree of good faith, honesty, and candor,” and “agreements concerning the disposition of property owned by the parties at the time of their marriage are valid, so long as there is no fraud, coercion, or material nondisclosure.” Id. at ¶ 24 (quotations and citation omitted).  

4¶ 4 Wife ignores the entirety of the district court’s ruling and the context in which the challenged statement was made. More completely, the district court stated that 

[u]nlike [d]efault [j]udgments, [j]udgments reached pursuant to the [s]tipulation of the parties are given significant deference. In order to set aside a stipulated [d]ecree of [d]ivorce, a party must, at a minimum, produce evidence that would constitute a defense to a common contract. In order to show that the [s]tipulation was procured by fraud, [Wife] must show that she reasonably relied on a misrepresentation of a presently existing material fact. [Wife] failed to produce evidence which meets this standard. 

56¶ 5 After carefully weighing the evidence, the district court concluded that Wife failed to show the elements  necessary to establish coercion, fraud, misrepresentation, or duress. See Reese, 1999 UT 75 at ¶ 24, 984 P.2d 987; see also St. Pierre v. Edmonds, 645 P.2d 615, 619 (Utah 1982) (holding that “[d]uress and fraud are commonly held sufficient to vacate a property settlement in a divorce decree”). And a “district court … is vested with considerable discretion under [r]ule 60(b) in granting or denying a motion to set aside a judgment.” Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986) (per curiam). Specifically, the district court held that 

[Wife’s] testimony with respect to alleged misrepresentations [is] not credible…. Accepting all of [Wife’s] evidence as true, it nevertheless falls short of suggesting a lack of contractual capacity…. Accepting all of [Wife’s] evidence as true, the evidence falls short of establishing legal duress, or that [Husband] had inappropriately overcome her will. 

We find no error in the district court’s evaluation. 

789¶ 6 Second, Wife argues that the district court erred in finding that she failed to meet her burden of proof regarding her claims of fraud and duress. However, Wife failed to marshal the evidence supporting this finding. “In order to challenge a court’s factual findings, an appellant must first marshal all the evidence in support of the finding and then demonstrate that the evidence is legally insufficient to support the finding even when viewing it in a light most favorable to the court below.” Chen v. Stewart, 2004 UT 82, ¶ 76, 100 P.3d 1177 (emphasis added) (quotations and citation omitted); see also Utah R.App. P. 24(a)(9) (“A party challenging a fact finding must first marshal all record evidence that supports the challenged finding.”). 

¶ 7 Instead, Wife simply reasserts the evidence she presented to the district court and asks this court to reconsider the validity of that evidence. In fact, Wife’s arguments are “nothing but an attempt to have this [c]ourt substitute its judgment for that of the [district] court on a contested factual issue. This we cannot do.” Covey v. Covey, 2003 UT App 380, ¶ 28, 80 P.3d 553 (alterations in original) (quotations and citation omitted). 

¶ 8 Therefore, the district court did not err in denying Wife’s rule 60(b) motion to set aside her divorce decree. 

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

https://www.quora.com/How-do-you-prove-duress-in-a-divorce/answer/Eric-Johnson-311  

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How would my fiancé go about getting any sort of custody for his child?

That is an extremely broad question. The best way to start: find a good domestic relations lawyer (a good one, not just any) and schedule a consultation with him/her so that your fiancé can explain the situation to the lawyer, learn from the lawyer what your fiancé’s options may be, and ask what the lawyer might advise your fiancé to do. 

Free consultations are usually a “get what you pay for situation,” so forewarned is forearmed. And most “free consultations” are really sales pitches in disguise. Better to schedule a consultation that you have paid for. You will get more of the attorney’s attention and more likely will get an objective assessment of the case. 

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

https://www.quora.com/How-would-my-fiance-go-about-getting-any-sort-of-custody-for-his-child/answer/Eric-Johnson-311  

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What will happen if the child refuses to go with the custodial parent?

What will happen if the court ruled in favor of a mother to have the custody of her child but the child refuses to go with her and she prefers to stay with the father?

This situation (and this question) comes up a lot. I will answer the question as it applies in my experience to the jurisdiction where I practice divorce and family law (Utah). 

SHORT ANSWER: The general rule of thumb is that if the child is a teenager and has the guts and the will to defy the court’s custody orders, then that child is going to live with the parent with whom he or she wants to live because the court is essentially powerless to force the child to comply with the child custody order, i.e., the court finds it more trouble than it is worth to enforce a child custody order against a defiant teen. 

LONGER ANSWER: Technically, the child has no choice in the matter, once the court has issued its child custody ruling and resulting orders. In other words, just because somebody doesn’t want to follow court orders doesn’t mean that he or she is free to disregard them or to act as a law unto himself or herself. This proves to be true of court orders pertaining to adults. Child custody orders, and the children affected by them, however, are in reality a different matter. 

In the law we have two terms that help to describe the situation: de jure and de facto. De jure means that which is which applies as a matter of law. For example, as a matter of law, your child is ordered to spend most of his/her time in the custody of mother, with the father spending time the child on alternating weekends and a few odd holidays. De facto means that which is or that which applies as a matter of fact (in reality, and not as the court may artificially require). So while as a matter of law your child is required to live with mother, if in reality (as a matter of “fact”—this is where the “facto” in “de facto” comes from) the child refuses to live with mother and stays at the father’s house, that is the de facto child custody situation. 

When A) the de jure and de facto situations conflict in a child custody situation, and B) the child is old enough, strong enough, and willful enough to continue to the court’s custody orders, the court often (not always, but usually) feels that they are practicably powerless to force children to live with a parent with whom they do not wish to live. 

Normally, when an adult will not comply with the court’s order, One of the tools a court can use to enforce compliance is its contempt powers. Those powers include finding and jailing the noncompliant person. But with children, that power is, for all intents and purposes, nonexistent. Children usually have no money with which to pay a fine, and Utah does not allow courts to jail minors for mere contempt of court. 

Some courts try to get creative and impose sanctions on a noncompliant child by essentially ordering them “grounded”, but again, if the child chooses not to comply, there is little the court can do or feels is wise to do to the child. I’ve seen a court try to get a child to comply by ordering her barred from participating in her beloved dance classes and driver education courses (so that she can’t get her driver license unless she lives with the court ordered custodial parent) as long as the child refused to live with the court-ordered custodial parent. In that case, however, the child outlasted the court, i.e., she kept living with the noncustodial parent and stopped attending dance and driver’s ed. classes. Then the court found itself in the awkward position of preventing the child from getting exercise and driving to and from her job and other worthwhile, even necessary activities, so the court relented (both in the best interest of the child and to save face). This is a lesson that most courts learn when they try to use the coercive powers of the court against children to enforce child custody orders. 

Courts don’t want to dedicate their own resources and law enforcement resources to 1) literally dragging a child out of one parent’s home and literally stuffing the child into some other home; and 2) doing so repeatedly when the child refuses to stay put. It’s a waste of law enforcement resources and the fear is the child will eventually run away (and act out in other self-destructive and dangerous ways), if not allowed to live with the parent of his/her choosing. 

And courts don’t want to punish a parent for the misconduct of a child. Some courts have tried to punish noncustodial parent by holding them responsible for their children’s noncompliance with the court orders, but that doesn’t work when the noncustodial parent truly isn’t at fault. Courts realize that a noncustodial parent cannot simply, for example, 1) push the child out the door, lock it behind the child, and wish the child well in subzero degree weather; or 2) manhandle the child into the custodial parent’s car, then be charged with child abuse. And punishing the noncustodial parent often only serves to lead the child to be more determined to defy court orders. 

As you can imagine, a child’s “power” to choose where he/she lives usually does not arise until the child is old enough and strong enough and willful enough to exercise some degree of autonomy over which parent with whom he/she lives. That doesn’t usually happen until children reach approximately the age of 12 or 14, although some children may start younger. Children under that age are typically unable or too afraid to exert their own preferences and wills. 

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

https://www.quora.com/What-will-happen-if-the-court-ruled-in-favor-of-a-mother-to-have-the-custody-of-her-child-but-the-child-refuses-to-go-with-her-and-she-prefers-to-stay-with-the-father/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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Can I force my spouse to divorce me?

I know of no legal way to force your spouse to filed for divorce against you, but you may not be aware of the fact that your spouse cannot prevent you from divorcing him/her. 

Many people do not understand what no-fault divorce means. Some people mistakenly believe that no-fault divorce means, “My spouse cannot divorce me unless I am somehow at fault.” This is not true. 

No fault divorce means that one can divorce his/her spouse regardless of whether his/her spouse has committed any marital fault. 

What is marital fault, you may ask? each jurisdiction is a little different than another, but here is a basic list of what constitutes marital fault: 

  • Adultery 
  • Abandonment or desertion 
  • Bigamy 
  • Criminal conviction 
  • Cruelty 
  • Criminal conviction and/or imprisonment 
  • Culture, religion, and disease 
  • Financial backing 
  • Force or fraud in obtaining the marriage 
  • Impotence at time of marriage 
  • Insanity/Mental illness/Mental incapacity 
  • Marriage between close relatives 
  • Mental or physical abuse 
  • Willful neglect of spouse 
  • Refusing to engage in sexual intercourse with spouse 
  • Religious differences 
  • Sexual orientation 
  • Separation for an extended period of time 
  • Substance abuse 

Just because no-fault divorce exists does not mean you cannot still file for divorce on a marital fault-based ground or several fault-based grounds. 

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

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