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Tag: dirty tricks

Why You Should Always Order Audio Recordings By Braxton Mounteer

You may be asking yourself, why should I order from the court a copy of the audio recordings of my court hearings? Shouldn’t the court’s own notes in the written record be sufficient? Can’t I just make my own recordings? Not in Utah.

First, the “written record” that the court keeps is more like meeting minutes and is not a word-for-word record of everything that was said by the parties, the lawyers, and the court during a hearing or trial.

Second, Utah does not allow you or your attorney to make your own recordings of your own court proceedings. Such a rule makes absolutely no sense and imposes undue costs and wait times on parties and their attorneys, but it’s the rule nonetheless.

Third, and most importantly, you should order the audio recording of your hearings and other court appearances to ensure that the orders that come out of those proceedings are accurate and complete–to ensure they are faithful to what was actually said and ordered. Most people cannot keep it all correctly remembered in their heads.

When there is a back and forth between the parties and their counsel over the specifics of a judgement or recommendation that was handed down months or years or even days ago, knowing exactly what was said is vitally important. You wouldn’t want a decision in your favor to be forgotten or misstated. Nor would you want to be mistreated due to someone imposing a harsher penalty on you than the court issued simply because no one could remember what the evidence was, what the testimony was, and what the court’s decisions were.

In Utah, you need to pay $15.00 and fill out and submit to the court clerk a form to request an audio recording. It is fast and easy. Your lawyer or opposing counsel may say “You don’t need to do that, I remember the hearing”; do not believe him/her. Human memory is fallible. Lawyers have the reputation that they have for a reason. Do yourself a favor and spend the five minutes that it would take to fill out and pay for an audio recording. Don’t leave your fate to faulty memories.

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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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Mandatory Lethality Assessments on Domestic Violence Calls. In Other Words: Pandora’s Box

The Utah State Legislature passed this into law an amendment to Utah Code § 77-36-2.1, which was effective May 3, 2023. The newly amended code section now requires police officers to conduct “lethality assessments” in response to domestic violence calls under certain circumstances.

My immediate reaction to this news was: Oh, no, but I didn’t share that on my blog because I wanted to ensure I didn’t come to any hasty, erroneous conclusions. Now that I’ve had time to reflect on the subject, my reaction is: Oh, no.

While I have no doubt that the intention behind lethality assessments is sincere, I worry about whether lethality assessments will be conducted to protect domestic violence victims or conducted to protect the police.

If you’re a law enforcement officer who doesn’t want to be blamed for failing to protect a victim or potential victim, then what reason would you have not to “err on the side of caution” when you conduct lethality assessments? Essentially, the thinking goes: “I don’t want to be blamed for failing to protect someone from domestic violence. I don’t want to be accused of being insensitive to the vulnerable. So, if the mere allegation of domestic violence arises, I will punish the accused and I 1) won’t look like I’m soft on domestic violence and 2) will appear to be preventing crime (even if there is no crime).”

I’m concerned that lethality assessments can be abused by those who report domestic violence and those who respond to reports of domestic violence, that lethality assessments, which are intended to be a shield to the vulnerable, would be abused as a weapon against innocent people who aren’t violent and/or who don’t pose a threat of violence.

As a divorce lawyer, I am particularly concerned about the potential for lethality assessments to be abused by spouses and parents who are plotting a divorce or child custody action and who make false allegations of domestic violence to gain an advantage over the other spouse or parent in the divorce and or child custody action. Then, not only do we have to worry about police officers who might err on the side of caution when conducting lethality assessments, but we also have to worry about judges who would do the same (“I have my doubts about the credibility of that lethality assessment in the record. But if I say I don’t believe it, then I might appear indifferent to domestic violence. Or if it turns out that the accused is violent, then I’ll be blamed for ‘ignoring’ the lethality assessment. Better for me to err on the side of caution.”).

I am also worried that, following the mandate to conduct lethality assessments, the domestic violence hustlers will “discover” a raft of domestic violence “risk” or “danger” that had heretofore gone “undetected” based upon the lethality assessments data, and that it will be offered as proof that lethality assessments “work”. I’m worried that people will claim that the self-proclaimed domestic violence victims are proof that they are domestic violence victims because of the lethality assessment, which is nothing other than a record of one’s subjective claims of being a victim.

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

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What Can I Do if Ex-spouse Wants to Pay/Receive Less Child Support by Misrepresenting His/Her Income?

I will answer this question in the context of Utah law because Utah is the jurisdiction where I practice divorce and family law. It could be that other jurisdictions have similar laws or rules, but you will need to inquire with a lawyer who is licensed to practice law in your particular jurisdiction to be sure.

In Utah, the legislature and courts are aware of and wise to 1) those who would try to avoid paying child support 2) those who would try to obtain excessive child support by “self-impoverishing”, i.e., claiming to earn or being able to earn less than they actually do or can. This is why there are code sections and court rules to enable a party and the court to dig into the income history of the opposing party.

For example, the Utah Rules of Civil Procedure provide means by which opposing parties can conduct what is known as “discovery”, which is simply a legal term for the ability to obtain and the process for obtaining documentation and other forms of evidence relevant to the legal action. Through discovery a party can obtain bank, credit card, and other financial institution records of the opposing party. Through discovery a party can obtain business records, titles, can inspect land and buildings, require an opposing party to submit to a physical examination and income-potential evaluations, etc. in an effort to find out the extent of the opposing party’s income or reasonable ability to obtain income, if that party is currently unemployed.

That is not all. The Utah Rules of Civil Procedure also provide that each spouse in a divorce action or each ex-spouse in an action to modify child support must exchange a financial declaration form, with supporting documents. See Utah Rules of Civil Procedure Rule 26.1; parties must, in the financial declaration:

  • identify their employer(s) and rate of pay or annual salary
  • report their gross monthly income
  • calculate their monthly tax deductions and net, after tax income
  • identify in detail their monthly expenses for each party and and any spouse, children or other dependents in the household
  • business interests and valuation of the business(s)
  • financial assets
  • real estate interests
  • personal property (Such as vehicles, boats, trailers, major equipment, furniture, jewelry, and collectibles)
  • debts owed
  • and provide:

o    For every item and amount listed in the Financial Declaration, excluding monthly expenses, copies of statements verifying the amounts listed on the Financial Declaration that are reasonably available to the party.

o    For the two tax years before the petition was filed, complete federal and state income tax returns, including Form W-2 and supporting tax schedules and attachments, filed by or on behalf of that party or by or on behalf of any entity in which the party has a majority or controlling interest, including, but not limited to, Form 1099 and Form K-1 with respect to that party.

o    Pay stubs and other evidence of all earned and un-earned income for the 12 months before the petition was filed.

o    All loan applications and financial statements prepared or used by the party within the 12 months before the petition was filed.

o    Documents verifying the value of all real estate in which the party has an interest, including, but not limited to, the most recent appraisal, tax valuation and refinance documents.

o    All statements for the 3 months before the petition was filed for all financial accounts, including, but not limited to checking, savings, money market funds, certificates of deposit, brokerage, investment, retirement, regardless of whether the account has been closed including those held in that party’s name, jointly with another person or entity, or as a trustee or guardian, or in someone else’s name on that party’s behalf.

o    If the foregoing documents are not reasonably available or are in the possession of the other party, the party disclosing the Financial Declaration must estimate the amounts entered on the Financial Declaration, the basis for the estimation and an explanation why the documents are not available.

By way of another example, here is an excerpt from 78B-12-203 (Determination of gross income — Imputed income):

(5)

(a) When possible, gross income should first be computed on an annual basis and then recalculated to determine the average gross monthly income.

(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.

(c) Historical and current earnings shall be used to determine whether an underemployment or overemployment situation exists.

(6) Incarceration of at least six months may not be treated as voluntary unemployment by the office in establishing or modifying a support order.

(7) Gross income includes income imputed to the parent under Subsection (8).

(8)

(a) Income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held and the judge in a judicial proceeding or the presiding officer in an administrative proceeding enters findings of fact as to the evidentiary basis for the imputation.

(b) If income is imputed to a parent, the income shall be based upon employment potential and probable earnings considering, to the extent known:

(i) employment opportunities;

(ii) work history;

(iii) occupation qualifications;

(iv) educational attainment;

(v) literacy;

(vi) age;

(vii) health;

(viii) criminal record;

(ix) other employment barriers and background factors; and

(x) prevailing earnings and job availability for persons of similar backgrounds in the community.

(c) If a parent has no recent work history or a parent’s occupation is unknown, that parent may be imputed an income at the federal minimum wage for a 40-hour work week. To impute a greater or lesser income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.

(d) Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:

(i) the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;

(ii) a parent is physically or mentally unable to earn minimum wage;

(iii) a parent is engaged in career or occupational training to establish basic job skills; or

(iv) unusual emotional or physical needs of a child require the custodial parent’s presence in the home.

(emphasis added)

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

https://www.quora.com/What-can-I-do-to-protect-my-rights-if-my-ex-husband-wants-to-pay-less-child-support-by-just-saying-he-makes-less-money-last-year-without-actual-proofs-Can-I-make-him-provide-his-income-and-bank-statements-every

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Can someone legally move out without notice and turn off utilities?

The judge finalized our divorce a month ago. My ex-husband decided to move out without any notice and then he turned off all utilities service. Can he legally do that without saying anything?

It depends upon 1) the rules and statutes that apply in your jurisdiction; and 2) the provisions in your decree of divorce (and related orders, if in your jurisdiction divorces end with multiple orders, as opposed to all of the orders in one “Decree of Divorce” document). 

For example, in the jurisdiction where I practice divorce and family law (Utah), there is no law that specifically prevents a divorced spouse from canceling the accounts for the household utilities.* Indeed, if, in a divorce proceeding, the house is awarded to one of the spouses and the other spouse must now move out, many such divorced spouses have good reason for canceling the accounts for the household utilities, and that is to ensure they are no longer billed and held liable for utilities for a house in which they no longer reside.  

If the provisions in your decree of divorce (and related orders, if in your jurisdiction divorces end with multiple orders, as opposed to all of the orders in one “Decree of Divorce” document) prohibit one’s ex-spouse from canceling or otherwise interfering with the other’s utilities, then the affected ex-spouse could move the court to hold the offending ex-spouse in contempt of court and seek to have the offending ex-spouse sanctioned for contempt.  

Now clearly there are usually better ways of handling the situation than secretly closing the accounts notifying the ex-spouse after the fact or not telling the other spouse at all and letting him/her discover it on his/her own, but just because it’s ill-mannered does not make illegal. And if there is no provision in the decree of divorce or related orders that don’t expressly prohibit you and your ex from canceling the utilities that are presumably in your joint names (because you presumably open the accounts when you were married to each other), there may be nothing (and their likely is nothing) that you could do through the courts to punish your ex-spouse for his/her actions.

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*If a divorced couple has minor children, it might be possible to argue that cutting off the utilities to the house could constitute child abuse under Utah Code § 76-5-109. If the couple has a disabled child, one might argue that canceling the utilities account(s) is abuse or neglect of a disabled child. § 76-5-110 (Abuse or neglect of a child with a disability). I don’t know if one could argue that canceling the utilities to the house could be construed as “criminal mischief” as defined in Utah Code § 76-6-106(2)(b)(i)(A) or (B) or (ii). 

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

https://www.quora.com/The-judge-finalized-our-divorce-a-month-ago-My-ex-husband-decided-to-move-out-without-any-notice-and-then-he-turned-off-all-utilities-service-Can-he-legally-do-that-without-saying-anything/answer/Eric-Johnson-311  

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What are legitimate ways to contradict a witness in the court?

If you are asking whether there are “legitimate” ways to make truthful witness look inaccurate or dishonest (meaning there are ways to do it that won’t get you in trouble), there are tricks that may and often do work to bring about such a result. Damn you to hell if you employ any such tricks, but here are some that I am aware of (which I share with those of you who are about to be questioned by unscrupulous attorneys and/or judges who are trying to discredit you—forewarned is forearmed): 

When cross-examining the witness: 

  1. Overstate, understate, and otherwise outright misstate the witness’s testimony in your questioning (put words in the witness’s mouth), yet make it seem to the witness that you are simply trying to summarize or rephrase the testimony accurately. This way you mischaracterize the witness’s testimony yet you may dupe the witness into “agreeing” that your summary/rephrasing is accurate. 
  2. Ask questions that embarrass, humiliate, and upset the witness, so that the witness responds rudely and by arguing with and insulting you. Imply that the witness is bigoted and a hypocrite. Either way or both ways, you hope that the judge and jury will reject the witness’s testimony on that basis, not on the basis of whether the witness is honest. 
  3. Ask the witness bogus questions that sound as though they are plausibly based upon truth but that you know the witness will deny as false. Done “well”, this technique of eliciting repeated denials creates the false impression that the witness must be lying about something because the lawyer cross examining the witness couldn’t possibly be asking so many questions without the witness acknowledging at least some of them to be true.

 

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

 

https://www.quora.com/What-are-legitimate-ways-to-contradict-a-witness-in-the-court/answer/Eric-Johnson-311  

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“It’s pretty awful, but do you have a better alternative?”

“It’s pretty awful, but do you have a better alternative?”

I was asked the following question in response to this answer I gave to a question on Quora.com:

https://www.quora.com/What-are-some-dirty-secrets-a-lawyer-wishes-they-could-tell-us-but-can-t/answer/Eric-Johnson-311

Here is my response to that question:

First, do not engage in dirty tricks. it’s tempting, but wrong. Very few people are able to make false allegations stick. They may get a momentary advantage from them, but few enjoy long-term benefits from lying and deceiving. Now I’m not going to claim that some dirty tricks are easy and effective, but that doesn’t make them any more right or justifiable to engage.

Second, live an upstanding life, ESPECIALLY once you become convinced your marriage is headed toward divorce.

Third (and very important, even though easier said than done), to the extent you reasonably can, ensure that you have independently verifiable proof that you are not any of the things of which you could be falsely accused in divorce.

Fourth (and very important, even though easier said than done), fight false accusations with everything you have. Some courts seem to believe a false allegation more the more the false allegation is made and/or the worse the false allegations are.

Fifth, regardless of whether you are falsely accused or not, when you or your spouse file(s) for divorce, get the best attorney you can afford. Divorce law and procedure and the legal system are not what you think they are, and if you don’t know what you’re doing, they can and likely will ruin you before you’re even aware of it or can do anything about it.

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

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What are the dirty tricks your spouse can do to attack you during a divorce?

What are the dirty tricks your spouse and his/her lawyer can do to attack you during a divorce?

Understand that while the tone of this answer to your question is a little—a little—tongue in cheek, it’s still true.

Dirty tricks that often work whether you are a man or woman:

  • falsely accuse your spouse of substance abuse (drugs, alcohol)
  • falsely accuse your spouse of being mentally ill
  • falsely accuse your spouse of having an extramarital affair
  • falsely accuse your spouse of child abuse (both physical and sexual)
    • this works best for women, but it’s starting to gain ground with men too

Dirty tricks that work mostly for women:

  • falsely accuse your spouse of spouse abuse, both physical and sexual (virtually nobody will ever believe a wife abuses a husband unless a busload of nuns with time and date-stamping video cameras witness it too and testify to it)
  • falsely accuse your husband of “pornography addiction”
  • falsely accuse your spouse of never being home, being an absentee parent, never caring for wife and children, you get the idea
  • falsely accuse your spouse of being “controlling” (whatever that means, but it works, so who cares what it means, eh?)
  • falsely accuse your spouse of 1) failing to provide you and your children of adequate financial support and 2) never giving you access to spending money and 3) wasting, dissipating, and diminishing marital assets

Dirty tricks that work mostly for men:

  • falsely accuse your spouse of parental alienation (this rarely works, but when it does, it works better for men than for women; falsely accusing a father of parental alienation doesn’t get much traction)

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

https://www.quora.com/What-are-the-dirty-tricks-your-spouse-and-his-her-lawyer-do-to-attack-you-during-a-divorce/answer/Eric-Johnson-311

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I recorded my husband telling me that he wants to hit me. Will this help me obtain custody of our child?

Question:

I’m going through a divorce. A day ago, I recorded my husband telling me that he “wants to hit me in the face.” Will this evidence help me obtain full legal custody of our child?

Answer:

Good grief! Your question, when translated, reads as follows: “I’m going to get a divorce, now how do I game the system?”

I hate the games people play or try to play in divorce. Let me count the ways.

While the gamesmanship that goes on in so many divorce cases makes them unnecessarily confusing and unfair to innocent people (including, but not limited to the children), what I hate even more are the people who think that “all’s fair in love and war” and try to twist any and every fact to their advantage, rather than just being honest.

And I’ll be the first to admit:

because the legal system is so full of people (at every level) who believe that the ends justify the means, if you’re not lying in your divorce proceedings, you’re likely losing.

Still, that doesn’t make wrong right.

Gees, your husband told you he wants to hit you (but I presume from the way you phrased your question that he did not actually hit, try to hit, or even threaten to hit you) and you want to know if you can parlay that into getting full custody of your child? He didn’t do anything wrong! My word, you and he were probably both seething mad and engaged in an argument when he told you he was so angry he wanted to hit you. But he didn’t! And you want to use that against him? To make a play for child custody? What a rotten thing to want to do.

If you don’t have real dirt on your husband, admit it. Don’t lie and try to frame him as some monster just to make it easier for you and/or to make him miserable.

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

https://www.quora.com/I-m-going-through-a-divorce-A-day-ago-I-recorded-my-husband-telling-me-that-he-wants-to-hit-me-in-the-face-Will-this-evidence-help-me-obtain-full-legal-custody-of-our-child/answer/Eric-Johnson-311

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What are some ways people who are getting divorced have hidden their assets?

What are some ways people who are getting divorced have hidden their assets?

I have answered a question similar to this one previously on Quora:

Hiding money or assets from a spouse in divorce is legally and morally wrong.

So is the topic of this kind of illegal behavior worth discussing, then? Absolutely. Because knowing how your spouse could hide money or assets from you is the first step in noticing or discovering whether your spouse is hiding money or assets from you.

There are many ways people can hide money and assets in preparing for and/or in the course of a divorce. Rather than take credit for all the ways people have devised for hiding money from their spouses, I will simply share with you the links I came across on this subject:

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

https://www.quora.com/What-are-some-ways-people-who-are-getting-divorced-have-hidden-their-assets/answer/Eric-Johnson-311

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