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Tag: Divorce Court

Does an ex-spouse have claims to properties purchased during the marriage but name is not on deed, deed states married man and no mention of the property or distribution in the divorce?

I can answer this question in the context of the law of Utah, which is the jurisdiction where I am licensed to practice divorce and family law. To learn the answer to the question for another state, you would need to consult the law of that jurisdiction and/or consult with an attorney who is licensed in that state.

If your question is, “Do I have a claim to property my spouse purchased during the marriage but did not disclose the existence of during the divorce proceedings (meaning that I discovered its existence only after the decree of divorce was entered by the court)?”, then the answer is (in Utah):

Yes, you may have a claim. Now that means you have an argument for an award of some or all of (or a money judgment for some or all of the value of) that undisclosed property to you. You do not have an automatic right to any such award, but you may have a strong argument for it. If you want to pursue your claim, you should almost always pursue as soon as you possibly can. Delays in asserting and prosecuting a claim can weaken your claim.

Utah Rules of Civil Procedure, Rule 26.1 provides, in pertinent part:

(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.

Note: separate property usually remains separate property in a divorce. Separate property has three (which is basically two) different forms in a marriage: 1) property one owned (and “property” in this sense includes money you owned) before marriage (premarital property) and 2) property purchased with separate property funds. Separate property also includes money or property you obtained during the marriage if you obtained it by gift from someone other than your spouse and it also includes money or property you inherited during the marriage. So if, while married, you inherited a house from your parent, that house would be your separate property. Now one can convert (the legal term is “transmute”) separate property into marital property (by transferring title from yourself to you and your spouse jointly, or by spending money you inherited by adding a room to the marital home, or by spending your inheritance on a fancy cruise for you and our spouse—you get the idea), but if the separate property is not transmuted, it usually (usually) remains your separate property, although Utah law permits a court to award separate property to the other spouse, if circumstances warrant it.

Elman v. Elman (245 P.3d 176, 2002 UT App 83 (Utah Court of Appeals 2002):

¶ 18 Generally, trial courts are . . . required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

¶ 19 However, separate property is not “totally beyond [a] court’s reach in an equitable property division.” Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990). The court may award the separate property of one spouse to the other spouse in “‘extraordinary situations where equity so demands.’” Id. (quoting Mortensen, 760 P.2d at 308); see also Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct.App.1993) (“‘Exceptions to this general rule include whether … the distribution achieves a fair, just, and equitable result.’” (quoting Dunn v. Dunn, 802 P.2d 1314 at 1320)).

And there are these authorities too:

“The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property.” Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990). Such separate property can, however, become part of the marital estate if (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it, or (2) the property has been consumed or its identity lost through commingling or exchanges or where the acquiring spouse has made a gift of an interest therein to the other spouse. (Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (citation omitted)).

Premarital property, gifts, and inheritances may be viewed as separate property, and in appropriate circumstances, equity will require that each party retain separate property brought to marriage; however, the rule is not invariable. Burke v. Burke, 733 P.2d 133 (Utah 1987).

A material misrepresentation or concealment of assets or financial condition as a result of which alimony or property awarded is less or more than otherwise would have been provided for is a proper ground for which the court may grant relief to the party who was offended by such misrepresentation or concealment, absent other equities such as laches or negligence…. However, before relief can be granted, it must be determined that the alleged misrepresentation or concealment constitutes conduct, such as fraud, as would basically afford the complaining party relief from the judgment. (Clissold v. Clissold, 30 Utah 2d 430, 519 P.2d 241, 242 (1974) (citations omitted), overruled in part on other grounds by, St. Pierre v. Edmonds, 645 P.2d 615, 619 n. 2 (Utah 1982); accord Boyce v. Boyce, 609 P.2d 928, 931 (Utah 1980) (noting that “[c]learly, a court should modify a prior decree when the interests of equity and fair dealing with the court and the opposing party so require”); Reid v. Reid, 245 Va. 409, 429 S.E.2d 208, 211 (1993) (ruling that “[o]nce the amount of spousal support is determined, the statutes and case law specifically limit the divorce court’s authority to retroactively modify that amount, absent fraud on the court ”) (emphasis added).

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

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I’m a US citizen. I got divorced overseas. I have a child custody from an overseas country. What should I do to legalize the overseas court order in the US?

Confer with an attorney in the jurisdiction where you and/or the other parent now reside who has knowledge and experience with registering foreign divorce and child custody orders in the jurisdiction where you and/or the other parent now reside.

(48) I’m a US citizen. I got divorced overseas. I have a child custody from an overseas country. What should I do to legalize the overseas court order in the US? – Quora

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

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Is There a Way to Get Legal Action on Child Support for Free?

That does not bode well for you, if in fact the child will be in the courtroom at the same time you and the judge assigned to your case are in the courtroom (although it is not a common occurrence for children to be in the courtroom with a parent during child custody proceedings).

If a child is 3 years old and doesn’t recognize his/her parent, that raises the question of why?

Even if your explanation is “because the other parent hid/kept the child away from me!” and the explanation is in fact true, that’s a tough sell. Unless you have extremely good evidence proof to back your explanation, the court is likely to treat such a claim with skepticism (and can you blame it?). Be prepared to show that you bent over backward and moved heaven and earth trying to find, stay in contact with, and to care for your child (easier said than done, I get it, but that’s the way the system works); otherwise, the court is likely to conclude you are a flaky, absentee parent.

And if you are found to be a flaky, absentee parent, your odds of winning sole custody are slim to none, and your odds of winning joint custody aren’t much better.

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

 

https://www.quora.com/What-if-my-3-year-old-does-not-recognize-me-in-court-during-a-child-custody-case/answer/Eric-Johnson-311

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What Happens in a Custody Case Where Both Parents Try to Alienate the Child From the Other Parent and the Rest of Their Family?

My guess is that this question applies in two distinct contexts: 1) what does the court do in a child custody case where both parents try to alienate the child from the other parent and the rest of their family?; and 2) what happens to a child in a custody case where both parents try to alienate the child from the other parent and the rest of their family?

1) What does the court do in a child custody case where both parents try to alienate the child from the other parent and the rest of their family?;

It’s hard when a court has two lousy parents fighting over custody. Neither is bad enough to have his/her parental rights terminated and custody of the child awarded to the other parent, so the court finds itself having to make all kinds of compromises that the court knows are not likely to work.

Rarely can a court do much to help the child effectively. That’s not the court’s fault. Even the most conscientious court cannot compel bad actors to do good (or at least to do good consistently). . .

. . . but that doesn’t mean some courts think themselves an exception. Some judges believe the black robe and gavel magically imbues them with supernatural wisdom and power to make the horse drink. Such orders issued by such judges are rarely obeyed and rarely benefit the child. Indeed, they tend to generate a lot of litigation between the parents over “enforcement” of largely unenforceable orders, and the child often suffers collateral damage.

Other judges don’t want to live with the guilt of wondering, “Did I fail to do everything I could to protect the child from its lousy parents?,” and so they assuage their fears by issuing orders that appear to make the judges look good without those orders doing the child (or his lousy parents) much, if any good, i.e., ordering the parents to read books and watch videos, take “parenting” courses, and/or ordering the parents and children to engage in therapy and counseling.* In fairness, some judges issue such orders not because they believe they will work, not because they want to look compassionate and wise, but because they conclude that it can’t hurt and that such orders may cause the occasional parent to see the light. Fair enough.

2) What happens to a child in a custody case where both parents try to alienate the child from the other parent and the rest of their family?

First, remember that it’s not “parental alienation” if one parent acts shield a child from the harm that a dysfunctional and/or abusive parent would, in the absence of the protection, inflict on a child. Unfit, unrepentant parents forfeit (either legally or practicably) their hopes of and rights to a “relationship” with the children they neglect and/or abuse. Don’t misunderstand me: the ends do not necessarily justify any means, and one cannot be a law unto oneself, but fulfilling parental responsibility is not parental alienation.

So the question really is: what happens in a custody case where both parents who know better try to alienate the child from the other parent and the rest of their family? And the answer to that question is: the child is emotionally and psychologically abused grossly. All but the most exceptional children suffer the consequences of this heinous emotional and psychological abuse throughout the rest of their lives. Many (frankly most) who reach adulthood and have children of their own will end up being dysfunctional, neglectful, abusive spouses (if they ever marry) and parents themselves. Even the children who seemingly “overcome” or adjust for this abuse and who manage to live a normal life will, by and large, still suffer from and bear the burdens of the damage and pain.

—————

*Counseling and therapy can do some people some, even a lot, of good, but forcing counseling and therapy on parents is not nearly as effective as the courts seem to believe.

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

(10) Eric Johnson’s answer to What happens in a custody case where both parents try to alienate the child from the other parent and the rest of their family? – Quora

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Do I have to pay the court to go to trial?

Do I have to pay the court to go to trial?

I am a divorce and family lawyer. I was asked this question and was a little surprised that this wasn’t widely known: 

In Utah, do I have to pay the courthouse and/or the judge or courthouse personnel for every day my divorce or child custody trial takes place?  

Answer: No.  

You are charged nothing for use of the courthouse, judge, and courthouse personnel for your trial, no matter how long the trial is set to take. 

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

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Is the Johnny Depp divorce trial actually newsworthy?

The divorce trial wasn’t all that newsworthy or memorable (celebrities divorcing is expected), it’s his defamation trial against his ex-wife that is newsworthy. Why? 

Although his defamation case is not as relevant to the country as news that affects us all more directly (like economic news), it is highly relevant in the field of divorce and family law because it has brought nationwide attention to a problem we lawyers have known about forever but that others haven’t: the shabby treatment of men in domestic relations law. 

As recently as one generation ago, the thought of a man being a domestic violence victim was almost unthinkable. That’s not hyperbole. It was literally almost unthinkable. I’m not suggesting that women didn’t have their own legal prejudices to overcome (they clearly did then and to a lesser extent today, they still do), but it was an open secret that, with rare exception, the law ignored male domestic violence victims. 

On second thought, “ignore” is not the most accurate term because that would imply that the law didn’t pay any attention to male domestic violence victims, and that’s not true. It did pay some attention to them, but in the form of arresting, charging, and prosecuting them if they had the guts to speak up. 

What makes Johnny Depp’s defamation action against Amber Heard newsworthy today is because it focused the media’s attention (and thus focused the country’s attention) on a serious problem that needs and deserves to be solved now, not solved eventually. Johnny Depp’s defamation action against Amber Heard reveals: 

– how brazenly a woman can repeatedly commit and get away with physically and emotionally abusing her spouse or boyfriend; 

– how brazenly a woman can repeatedly commit and get away with physically and emotionally abusing her spouse or boyfriend, while claiming—and by claiming—to be the victim herself; and 

– the depth and breadth of institutionalized sexual discrimination that pervades domestic violence laws and their enforcement. 

– that it was (and largely still is) that combination of: 

    • 1) believing that men generally/realistically can’t be victims of domestic violence at the hands of women; and 
    • 2) blaming and prosecuting the man when a man complains of domestic violence that leads so many male domestic violence victims to keep silent (under such circumstances, who can blame them?) 

In fact, while men commit more acts of domestic violence that are more severe than those of women, women commit ever so slightly more “intimate partner” (i.e., domestic) physical violence than do men (30.6% women victims, 31% men victims, according to the CDC). 

Johnny Depp’s defamation suit against his ex-wife is helping to dispel the myths: 

  • that women don’t commit domestic violence against men; 
  • that there are male domestic violence victims (some people really do find that idea surprising); and 
  • that presuming a woman who claims to be a domestic violence victim must be a victim (i.e., “believe all women”) is ridiculous. “Start by believing” is equally ridiculous. Start by investigating. Presume nothing. 

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

https://www.quora.com/Is-the-Johnny-Depp-divorce-trial-actually-newsworthy/answer/Eric-Johnson-311 

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What is MyCase and why should I care?

MyCase is an online system developed by the Utah State Courts system that you can sign up for free of charge and use in your family law case and certain other kinds of cases, but because this is a divorce and family law blog/video, we’ll focus on its features in a divorce and family law context. You can use MyCase to:  

  • view your case history (a record of what has happened in your case)  
  • see the date and time of your next scheduled court appearance 
  • view the documents that the opposing party and the court have also filed in your case 
  • pay fees  

Can a pro se party (meaning a party who is not represented by an attorney) file a divorce complaint or petition using MyCase? No, not currently. As of now there is no case filing available through MyCase. 

Can a pro se party file documents with the court through their MyCase account? No, not currently. As of now divorce is not a case type that is active for accepting electronically filed (also known as “e-filed”) documents through MyCase. 

Only those who are parties to a case can use MyCase. MyCase cannot be used to look up information about other cases. Even if you are represented by an attorney in your divorce or separation case, you look up information about your case on MyCase, if you have a MyCase account. To learn more about other features of MyCase and to create your own MyCase account, go to: 

https://www.utcourts.gov/mycase/  

and 

https://pubapps.utcourts.gov/MyCaseWEB/LoginServlet  

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

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Are there experts who can evaluate parental alienation for a custody case?

There are “expert” witnesses for virtually any and every issue in legal actions. 

Can judges be bamboozled by pseudo-scientific expert witnesses? Without question. 

Do some judges who know that the so-called expert witness’s testimony is pseudo-scientific bunk (or at least know that the opinion has dubious scientific grounding) yet justify the ruling the judge wants to make by citing to those pseudo-scientific opinions? Without question. 

So your question really should be, “Are there competent expert witnesses who can objectively prove my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is, in my opinion, “no.” 

Other questions you should ask (and their answers, in my opinion): 

  • “Are there competent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.” 
  • “Are there incompetent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.” 
  • “Are judges generally receptive to the concept (much less the actual occurrence) of parental alienation, and are they generally willing to hold a parental alienator accountable?” The answer to that question is “Some judges will acknowledge that parental alienation exists, but even then the amount and quality of evidence needed to persuade a judge that parental alienation occurred or is occurring is very high, in many cases unobtainably high.” 
  • “Will proving the occurrence of parental alienation help me obtain court orders to protect my children from further alienation and psychological/emotional abuse?” The answer to that question is “maybe.” Some judges take a bizarre approach to proof of parental alienation, i.e., it is clear that [parent] has alienated the child(ren) from [other parent], but if I were to take the children away from the alienator or impose sanctions/restriction/monitoring/supervision on the alienator, then the alienated kids (who side with the alienator because they have been exploited and manipulated and abused) would suffer (i.e., suffer in the process of treating and reversing the alienation brainwashing and being restored to reality), so I am going to leave things be “for the sake of the children.” 

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

https://www.quora.com/Are-there-experts-who-can-evaluate-parental-alienation-for-a-custody-case/answer/Eric-Johnson-311 

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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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Do both parties have to sign the paperwork for a divorce to be granted?

Do both parties have to sign divorce paperwork in order for a divorce to be granted?

It is possible in many jurisdictions (Utah being one of them; if you are not residing in Utah, you’ll need to consult the laws and court rules of the particular jurisdiction where you are contemplating filing for divorce to be sure) to obtain a divorce from your spouse without your spouse being required to sign anything. 

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

https://www.quora.com/Do-both-parties-have-to-sign-divorce-paperwork-in-order-for-divorce-to-be-legalized/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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Duffin v. Duffin – 2022 UT App 60

2022 UT App 60

THE UTAH COURT OF APPEALS

JAMES M. DUFFIN III,
Appellee and Cross-appellant,
v.
BRANDY E. DUFFIN,
Appellant and Cross-appellee.

Opinion

No. 20200361-CA

Filed May 12, 2022

Third District Court, West Jordan Department

The Honorable Matthew Bates

No. 184400962

T. Jake Hinkins and Kurt W. Laird, Attorneys for Appellant and Cross-appellee

Martin N. Olsen and Beau J. Olsen, Attorneys for Appellee and Cross-appellant

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1        In prototypical fashion, a young married couple—James and Brandy Duffin[1]—set about building a new house. They prequalified for a loan, hired a real estate agent, paid a deposit of $1,000 with marital funds, entered into a contract with a builder, went to a design center to pick out finishes, and attended the closing together. However, in atypical fashion, James’s father and grandfather reimbursed the $1,000 deposit, paid an additional $18,000 as a preconstruction deposit, and at closing paid the balance of the purchase price of $410,875 in cash. Only James’s name was placed on the deed. Months later, as James and Brandy’s marriage relationship deteriorated, James deeded the property to himself and his father. A divorce action was filed, and at trial, the district court concluded, among other things, that any interest James and Brandy had in the house was not marital property and that Brandy should be awarded attorney fees. Brandy appeals, claiming that any interest she and James have in the house is a marital interest. James cross-appeals, challenging the determination on fees. We reverse the district court’s determination regarding the house, but we affirm the decision regarding attorney fees.

BACKGROUND

¶2        Brandy and James were married in March 2015. They had two children during their union.

¶3        In April 2016, Brandy and James, having been approved for a loan of up to $360,000, entered into a real estate purchase agreement to purchase a house in West Jordan, Utah. Using a cashier’s check from an account in his name, James paid a security deposit of $1,000 on the contract.[2] James testified that his father (Father) reimbursed him for the $1,000, though he could not remember how that reimbursement occurred.

¶4        In June 2016, James’s grandfather (Grandfather) paid $18,000 for the preconstruction deposit, but James asserted that the money was actually an advance on Father’s inheritance from Grandfather. At closing, Father paid the outstanding balance on the home, again with money allegedly received as an advance on his own inheritance.

¶5        On February 8, 2017—the day before closing—James sent an email, titled “Loan Contract,” to Father stating that Father “is dispensing a loan of $429,875.42 to purchase a home,” which was identified as the house for which James and Brandy had signed the real estate purchase agreement. In that document, James identified himself as the party responsible for repayment of the loan. Notably, the Loan Contract did not mention interest or a payment schedule; rather, it provided that Father could “demand payment of this loan at anytime.”

¶6        Brandy and James moved into the completed house. A warranty deed conveying title of the house from the seller to James—Brandy’s name does not appear on the deed—was recorded on February 9, 2017.

¶7        About a year later, in February 2018, James added Father to the title of the house by executing and recording a new warranty deed. Brandy contended that the “marriage was struggling and divorce was a very real possibility” at the time James added Father to the title of the property.

¶8        As it turns out, Brandy and James separated in July 2018, and James petitioned for divorce in August 2018. James further asked that the assets and liabilities of the marital estate be divided equitably and that the parties bear their own attorney fees and costs.

¶9        As relevant here, in his financial declaration, submitted in October 2018, James listed the house as an asset with no amount owing, noting that it was a “[c]ash purchase” by Father and that it was acquired in his and Father’s names.

¶10      In her counter-petition, in addition to addressing custody and parent-time issues, Brandy requested that the house be sold and the equity split equally. Brandy also asked for attorney fees.

¶11 James later asserted—during the divorce proceedings— that he purchased the house on behalf of Father, who lived in California, and that he was just doing the “leg work” for Father. He also asserted that he and Brandy “weren’t prequalified on [their] own merits” but had used Father’s bank statements in the application.[3] However, James admitted that he never informed anyone that he was acting as the agent of Father. And James conceded that he was not aware of “written documentary evidence” indicating an agency relationship but that there were “certainly conversations” between him and Father to that effect.[4] James also contended that an agreement between him and Father gave James the option to purchase the house from Father.

¶12 Father echoed much the same in his deposition on the matter, saying that he had “been talking to [James] about purchasing a home for [him] in Utah for quite some time” and that James acted on his behalf in purchasing the house. Father explicitly stated that he “[a]bsolutely” never intended the house to be a gift to James. Father clarified, “I provided all the money. My son worked as my agent in obtaining that house. And it was always understood between my son and me that that was my house.” But Father admitted that there was no document that would evidence any sort of an agency relationship between them.

¶13      Father explained that his name was not on the deed to the house because he “wanted to empower” James by having him “go through the process” of purchasing a house. Father asserted that he was involved in the design of the house and “oversaw the whole thing.” But he admitted there were “no writings, no emails or text messages between the two of [them] about the house plans.” Rather, Father explained, “[I]t was just a . . . casual, loving, walking down the street, arm around my son,” asking, “What do you think, Jim?”

¶14 Father indicated that he needed to “subsidize the relationship [between James and Brandy] until it really got off . . . on a good start.” However, Father indicated that Brandy was never involved in the conversations about the help he was extending to them: “The whole . . . financial situation, . . . my support, my allowing them to live in that house, all of that was between me and my son.”

¶15 For her part, Brandy testified that there was never any discussion that the house would belong to anyone other than her and James. Specifically, she said there was never any mention made to her that the house was being built for Father or that Father had any input on the construction. She clarified that she and James “picked out all of the finishings” and the floor plan of the house. Brandy testified that at no time during construction did James ever indicate that he needed to check with Father to verify that he was “okay” with their design selections because it was going to be Father’s house. In terms of paying for the house, Brandy stated that she and James were prequalified for a loan on the house, that the $1,000 deposit was paid with a cashier’s check funded with money from their commingled accounts, and that she and James were present together at the closing. Brandy further testified that she and James completed the landscaping and added, among other features, a fence, basketball standard, and cement pad.

¶16      With regard to the house, the court found that it was not marital property. The court reasoned,

The parties went into this home with the expectation that they would purchase it together. They picked the lot, they picked the design of the home, they selected trim and other finishings in the home, and they entered into a [real estate purchase agreement] with [the seller], and the parties expected that they would have a mortgage and that they would pay for this home using their respective incomes. But when it came time to actually close on this transaction, that is not what happened. Instead, [Father] paid for the home in its entirety, and James was the only one who was put on the deed.

¶17      The court went on to note that James and Brandy “lived in the home for what is a relatively short duration. They did not pay rent, they did not pay any sort of mortgage or loan, they did not pay utilities or property taxes. Those were all paid by income from [Father] towards the home.” And even though James and Brandy did “contribute somewhat to the home by putting in some shrubberies, a basketball standard, putting down a concrete pad, [and] installing a small fence,” the court concluded that “given the large amount of equity in this home, upwards of $450,000, those small contributions . . . [did] not convert [the house] into a marital asset.”

¶18      The court concluded,

[The house] was an asset that was titled only in James’s name. It was paid for by [Father]. . . . To determine that it was a marital interest would essentially be to give to Brandy a tremendous windfall of something that was not acquired in any rational sense of the word by the efforts of the marriage or the work or efforts of the marriage. So to the extent that there is any interest in the home, it is not a marital interest and to the extent that James has an interest in the home, it is not a marital interest.[5]

¶19      Lastly, the court awarded attorney fees to Brandy, at least in part:

Given the parties’ respective incomes, particularly that James has income a little bit more than four times the income that Brandy has, Brandy has a need for assistance in paying her attorney’s fees [and] those fees were necessary for her to be able to defend herself in this divorce action. However, she did not prevail 100 percent on all of her claims[6] and everything she was seeking, so the Court hereby awards her 60 percent of her attorney’s fees.

¶20 Both parties appeal, Brandy with respect to the determination that any interest she and James had in the house was not marital property, and James with respect to the award of attorney fees.

ISSUES AND STANDARDS OF REVIEW

¶21      Brandy contends that the district court erred in concluding that any interest she and James had in the house acquired during the course of the marriage was not marital property and thus not subject to distribution. “We will not disturb a property award unless we determine that there has been a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderates against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.” Nakkina v. Mahanthi, 2021 UT App 111, ¶ 16, 496 P.3d 1173 (cleaned up).

¶22      In his cross-appeal, James contends that the district court erred in ordering him to pay 60% of Brandy’s attorney fees pursuant to Utah Code section 30-3-3(1). “We review the district court’s award of attorney fees under Utah Code section 30-3-3, including the amount of the award, for abuse of discretion.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 6, 449 P.3d 202.

ANALYSIS

I. The Status of the Parties’ Putative Interest in the House as Marital Property

¶23 “Marital property is ordinarily all property acquired during marriage and it encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 14, 440 P.3d 757 (cleaned up). “Separate property, in contrast, is typically a spouse’s premarital property or property received by gift or inheritance during the marriage.” DeAvila v. DeAvila, 2017 UT App 146, ¶ 15, 402 P.3d 184.

¶24 “In Utah, marital property is ordinarily divided equally between the divorcing spouses and separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse.” Olsen v. Olsen, 2007 UT App 296, ¶ 23, 169 P.3d 765. Specifically,

When dividing property in a divorce, the court should first properly categorize the parties’ property as part of the marital estate or as the separate property of one or the other. Then, the court should presume that each party is entitled to all of that party’s separate property and one-half of the marital property, regardless of which spouse’s name appears on the title to the marital property.

Allen v. Ciokewicz, 2012 UT App 162, ¶ 46, 280 P.3d 425 (cleaned up); see also Bradford v. Bradford, 1999 UT App 373, ¶ 26, 993 P.2d 887 (stating that marital property may be distributed equitably “regardless of who holds title”).

¶25 Here, the district court erred in its determination that insofar as James or Brandy had a property interest in the house, that interest was not marital.

¶26 Throughout the pendency of the divorce proceedings, James explicitly rejected the notion that the house was a gift. And there is no indication in the record that James received the house as part of his inheritance. Nor was the house James’s premarital asset—it was indisputably acquired during the marriage. Thus, there is no evidence to suggest that any interest James might have in the house qualifies as James’s separate property. See Keiter v. Keiter, 2010 UT App 169, ¶ 22, 235 P.3d 782 (“Generally, premarital property, gifts, and inheritances may be viewed as separate property, and the spouse bringing such separate property into the marriage may retain it following the marriage.” (cleaned up)).

¶27 But there is ample evidence that any interest James and Brandy had in the house was marital property. Brandy and James both signed the real estate purchase agreement. As the district court explicitly noted, they both entered into the agreement with the expectation that they were purchasing the house together and that they would have a mortgage together. They picked the lot, they paid a $1,000 deposit, they selected the design, and they chose the finishings. The two factors that the district court pointed to as indicating that the house was not marital property were that James was the only one on the deed and that Father paid for the house in its entirety. But neither of these circumstances is sufficient to transform whatever interest James and Brandy have in the house from marital property to separate property.

¶28      First, that Brandy was never on the deed to the house in no way indicates that any interest James and Brandy might have in the house was somehow not marital property. In fact, just the opposite is true. “[A] marital asset is defined functionally as any right that has accrued during the marriage to a present or future benefit.” Jefferies v. Jefferies, 895 P.2d 835, 837 (Utah Ct. App. 1995). By having his name entered into the warranty deed and having his name placed on the title, James obtained the house in fee simple. See Utah Code Ann. § 57-1-12(2) (LexisNexis 2020). And because he obtained title during the marriage—and because the house was not a gift or inherited—whatever interest he had in the house became marital property. See Marroquin, 2019 UT App 38, ¶ 14 (defining marital property as “all property acquired during marriage” (cleaned up)). In other words, once James acquired title, Brandy acquired title because the acquisition took place during the marriage, and there was no exception (i.e., gift or inheritance) indicating otherwise.

¶29      Second, that Father paid for the house also fails to render “nonmarital” any interest James and Brandy might have in it. As our case law makes abundantly clear, “marital property ordinarily includes all property acquired during marriage, whenever obtained and from whatever source derived.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 31, 392 P.3d 968 (cleaned up); accord Marroquin, 2019 UT App 38, ¶ 14; DeAvila, 2017 UT App 146, ¶ 15; Dunn v. Dunn, 802 P.2d 1314, 1317–18 (Utah Ct. App. 1990). That James and Brandy used someone else’s money to purchase the house does not—standing alone—make their interest in the house nonmarital property. Most people, when they purchase a home, use someone else’s money (usually a lender’s) to do it—indeed, Father providing the money to purchase the house looks somewhat like just such a loan. And granted, the source of money by which the house was acquired would potentially render James’s interest in the house nonmarital if Father had gifted the money to James alone or if it represented James’s inheritance. But that’s not what happened here. As already noted, the record does not support a conclusion that the money was a gift to James or part of his inheritance, and the district court did not conclude otherwise.

¶30 On this note (i.e., that Father paid for the house while James and Brandy made a minimal contribution), the district court, citing Jefferies v. Jefferies, 895 P.2d 835 (Utah Ct. App. 1995), and Dunn v. Dunn, 802 P.2d 1314 (Utah Ct. App. 1990), concluded, “These cases suggest that marital property is not just any property obtained, but property that is obtained through the efforts of the marriage, and suggests that a windfall to one party or the other may not necessarily be marital property.” From this “suggestion” that it perceived in these two cases, the district court concluded that James and Brandy did not contribute sufficiently to the house to make any interest they might have in it marital property.

¶31 But obtaining property “through the efforts of the marriage” is not the defining condition that makes property marital; rather, it is the mere acquisition of property during marriage. As this court has often repeated, “marital property ordinarily includes all property acquired during marriage, whenever obtained and from whatever source derived.” Lindsey, 2017 UT App 38, ¶ 31 (cleaned up). Our case law nowhere mentions “the efforts of the marriage” as being necessary to making property so acquired marital. Thus, acquisition—from whatever source—during the marriage is the hallmark condition that renders property marital, not the maintenance or growth of that property by the efforts of the parties. To be clear, our case law employs the modifier “ordinarily” to account for the situation where property acquired by “gift or inheritance during the marriage,” see DeAvila, 2017 UT App 146, ¶ 15, remains separate property unless it has been transformed to marital property by commingling or the contribution of the non-receiving spouse, see Keyes v. Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (stating that “separate property, which may include premarital assets, inheritances, or similar assets, will be awarded to the acquiring spouse” unless it loses “its separate character . . . through commingling or if the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property” (cleaned up)). Thus, the district court’s misstep here was in applying the concept of “the efforts of the marriage” as a condition for all property acquired during the course of a marriage to become marital, when our case law has limited that concept to the efforts of the non-receiving spouse in transforming separate property into marital property.

¶32      In sum, we reverse the district court’s determination that the couple’s property interest in the house, insofar as they had an interest, was not marital. The extent to which Brandy and James even have an interest in the property is an issue that will be decided in the separate lawsuit. See supra note 5. But to the extent they are adjudicated to have an interest in the house, that interest is marital property subject to equitable distribution between them.

II. The Award of Attorney Fees

¶33 On appeal, James asserts that the district court erred in awarding Brandy attorney fees because it did not make a detailed factual analysis of either Brandy’s financial need for assistance or James’s ability to pay and because the district court took into account whether Brandy prevailed on her claims. These challenges raise different legal theories from the ones James raised below with regard to Brandy’s attorney fees request.

¶34 “Parties are required to raise and argue an issue in the [district] court in such a way that the court has an opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (cleaned up). “When a party fails to raise and argue an issue in the district court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” Issertell v. Issertell, 2020 UT App 62, ¶ 21, 463 P.3d 698 (cleaned up). “As to preservation, our case law draws a distinction between new ‘issues’ (like distinct claims or legal theories) and new ‘arguments’ in support of preserved issues (such as the citation of new legal authority).” Hand v. State, 2020 UT 8, ¶ 6, 459 P.3d 1014.

¶35 Here, James is clearly trying to raise new issues. Below, James did not challenge the court’s analysis regarding Brandy’s financial need or his ability to pay. In fact, James explicitly challenged only the inclusion of fees associated with a protective order, the exclusion of certain reimbursements Brandy had received, the court’s handling of rule 54(d) of the Utah Rules of Civil Procedure as it applies to costs, and the exclusion of the costs James had paid for a custody evaluation. Nowhere did he assert that the court should not award Brandy attorney fees due to his or Brandy’s financial situation. In short, the legal theories he raised below in challenging Brandy’s attorney fee request were entirely different from the legal theories he attempts to raise now. He simply never gave the district court an opportunity to rule on the theories he now advances.

¶36 Because James failed to raise the same challenges to Brandy’s request for attorney fees that he is attempting to raise on appeal, his current challenges are unpreserved, and James does not ask us to apply any of the traditional exceptions to our preservation requirement.[7] On that basis, we decline to review the merits of James’s unpreserved challenges to the award of attorney fees.

CONCLUSION

¶37 Having concluded that to the extent the couple had a property interest in the house, the interest was marital, we reverse and remand for further proceedings consistent with this opinion. And we uphold the award of attorney fees to Brandy because the legal theories advanced on appeal were not preserved.


[1] Because the parties share the same last name, we refer to them by their given names.

[2] Brandy asserted that the cashier’s check was funded with commingled monies from her and James. See infra ¶ 15. James admitted that money from Brandy’s income may have gone into the account from which the cashier’s check was drawn.

[3] James’s name is identical to Father’s, with the exception of the suffix.

[4] James acted as agent for Father for the purchase of a different “property six houses away.” Indeed, the record contains another real estate purchase contract under Father’s name and address (as opposed to James and Brandy’s) that was signed by James. The record contains at least one piece of correspondence addressed to Father at this address.

[5] The court spoke in conditional terms about the extent of interest in the house—as do we—because Father has filed a pending quiet title action asserting his interest in the property.

 

[6] Brandy prevailed on various claims related to custody and child support.

[7] James argues that the court plainly erred in awarding attorney fees. But after his brief was submitted, this court held “that plain error review is not available in ordinary civil cases.” See Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 44, 507 P.3d 357. Accordingly, the plain error exception to our preservation rule does not apply to this situation.

James also argues that “rare procedural anomalies . . . prevented [him] from fully providing the [district court] the legal arguments and evidence to support the denial of Brandy’s request for attorney fees.” The “rare procedural anomaly” James identifies is the court’s statement that it was “very familiar with the state of the law with respect to attorneys fees under 30-3-3” such that it did not need “further briefing on this matter.” James argues that precluding him “from putting forth evidence and appropriate briefing rises to the level of an anomaly in the proceedings.” But we see no procedural anomaly that would have prevented James from raising the issue in a post-judgment motion, just as he did with his other challenges to the award of attorney fees.

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

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If both parents are wonderful, will the court still favor the mother?

If both parents are wonderful, will the court still lean towards full custody to the mother?

[Note: I am a divorce lawyer of 25 years. I am not bitter about “what happened to me in my divorce” as I am not divorced. I have no axe to grind with women or mothers (I love my mother, sisters, wife, and daughters dearly and without reservation). With these facts in mind, I answer your question as follows below.]

Not exactly. But close.

While the courts are finally starting to confront and slowly abolish discrimination against fathers when it comes to making the child custody and parent-time awards, the odds are still ludicrously in the mother’s favor when both parents are fit and loving parents.

No question about it. The exceptions prove the rule.

“All things being equal,” the mother is favored (yes, I know that’s illogical, but the courts find ways to justify or to appear to justify illogical thinking, especially in making child custody and parent-time awards).

It’s grossly unfair to children and to fit, loving fathers alike, but it’s what courts frequently (more often than not) do.

Now clearly there are times when, even though Dad’s a wonderful parent, circumstances (such as the parents living too far apart or having an unorthodox/inflexible work schedule) may render impractical or impracticable the exercise of joint equal physical custody and/or result in joint equal custody arrangements doing the children more harm than good. But far, far too often fit, loving fathers are denied joint equal custody by virtue of plain old sexual discrimination.

What does “favoring the mother” (prejudicing the father) look like nowadays? Here are few of the most common situations:

Rather than awarding joint equal physical custody to both parents, awarding “just a little more time” to Mom than to Dad. Case in point: I worked a case where both Mom and Dad had full-time jobs, but the court awarded Mom more time with the children than with Dad anyway (8 out of every 14 days on a 14-day repeating schedule—the trial court even stated that denying the kids and dad that one day every two weeks would enable dad to have more time to get his work done). This was the case where I reached my breaking point (about three years ago). To his credit, my client agreed to appeal (and pay tens of thousands of dollars for the privilege), and he won, with the appellate court ordering the trial court to award equal child custody and parent time. If you believe that happens in every case like his, you would be mistaken.

Finding that, even in situations where the children are preteens or older, the mother was (past tense) the children’s primary caregiver when they were infants and toddlers, and therefore she always has that “advantage” over the father in the here and now. I have this case where mom had been working full-time for the past four years. The youngest of the couple’s children could take care of himself and did not need a full-time caregiver. Worse, mom worked outside the home full-time, while dad’s full-time job permitted him to work from home. At the temporary orders phase of the case, the court awarded mom primary physical custody of the kids because (and the court made no secret of the basis for its decision) she had been (past tense) the per children’s primary caregiver. Dad Wasn’t even seeking sole or primary custody; he was seeking joint equal physical custody, but he lost. Such an outcome is ridiculous and tragic, but not surprising.

Rejecting Dad’s claims that the mother is so lazy and that Dad not only works full-time each day outside the home, but then spends the rest of his time at home taking care the housekeeping and taking care of the kids as well. Why? Because (in my experience) in the minds of most judges it is unthinkable for a stay-at-home mother to be a lazy and inattentive parent (while at the same time it is easy for judges to believe—just believe—that a father doesn’t pull his weight when it comes to fulfilling child caregiving).

Penalizing the father for being the only full-time employed (in many cases the only employed) parent and awarding sole or primary physical custody of the children to the mother because she doesn’t work outside the home. Never mind (apparently) the fact that if the parties share joint equal custody, that would enable both parents to provide as much personal care to the children as possible and also allow them to work full-time jobs for their children’s financial support. Nope. Now clever courts will “acknowledge” and “praise” Dad for being a responsible and devoted breadwinner, but won’t award joint equal custody, justifying the unequal award of child custody with assertions such as:

Spending equal time in both parents’ Respective residences creates an “unstable” residential circumstance for the children.

The fact that unemployed Mom spends more of the waking hours with the children than does Dad (until the children start school, in which case the amount of time mom spends with the kids during waking hours is negligible compared to the time the children are with Dad while he’s at work) means that dad should spend even less of the children’s waking hours with them when he gets home from work. Otherwise stated, because Dad can’t be with the kids during the eight or nine hours that he is at work each day, that means that he should not spend the hours that he does have available to be with the children when the children could be spending that time or “consistently” in the custody and care of their mother. If you don’t understand this reasoning the first time you read through it, you’re not alone.

Courts will still indulge in blatantly discriminating against fathers:

  • by citing to the “fact” that women/mothers are “born nurturers”;
  • by citing to the “fact” that children are more closely bonded with, and thus need more time with, their mothers than with their fathers;
  • by claiming “it’s not the quantity of time but the quality of time” that children spend with their fathers that matters most, failing to concede that the quality of the time is a function of the quantity of time when it comes to parent-child interactions. How did the term “Disneyland Dad” evolve? Not by assuming the responsibilities and “heavy lifting” parental duties of day to day living. No, but by spoiling the child when they have such disproportionately little time on alternating weekends and one weeknight. It creates a warped sense of the father-child relationship and of reality for the kids in general, leading to the kids becoming self-absorbed, worldly, and feeling entitled around their fathers.

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

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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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How do you win a case against your ex for false accusations?

If you find an attorney who knows a sure-fire, fail-safe way to defend an ex-spouse or an ex-boyfriend/ex-girlfriend against “false accusations,” that attorney is likely a multimillionaire because possessing such a skill/power would be superhuman/miraculous. 

False accusations exist because they often work. They often work because judges are not infallible and undeceivable.

False allegations calculated to exploit a judge’s compassion, pity, vanity, fears, self-interest, and biases are easy to “prove” or at least hard to persuade a judge to reject, even if the judge is skeptical of the merits of the allegations. Such as? Allegations of domestic violence, spouse abuse, child abuse, and stalking. No judge wants to respond to such allegations by denying “relief” in response to such allegations on the grounds that the applicant has failed to carry her (it’s almost always a woman; that may not be politically correct, but it’s true) burden of proof, only to have the respondent put her in the hospital or morgue later, so judges knowingly and deliberately err on the side of caution, taking a “better safe than sorry” approach. That way, they don’t end up in the news and taking flak for “failing” hapless victims. Sure, recklessly issued restraining and protective orders ruin the lives of innocent guys, but so what? That doesn’t make the news and the judge doesn’t have to worry about losing his/her job over it. 

https://www.quora.com/How-do-you-win-a-case-against-your-ex-for-false-accusations-I-just-recently-found-out-she-did-it-to-her-ex-husband-He-got-found-not-guilty-and-we-were-living-together-at-the-time-of-the-accusations/answer/Eric-Johnson-311  

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

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

Every aspect of divorce. Every single one. 

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

Litigation is mind-bogglingly expensive and protracted. 

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

And: 

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

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

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

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Parental alienation

I just read the following comment made by a viewer of my UFLTV parental alienation interview with Kelly Peterson. This viewer wrote, “So basically, parental alienation is proved by documenting the instances of alienation over a long period of time, so that by the time it’s proved, the alienation has achieved it’s end and irrevocably damaged the poor child. Seems about right for the joke that is family court. No wonder defense attorneys mock the hell out of it.” His frustration is understandable. Most people are hesitant to take immediate, decisive action, and courts are no exception (far from it). There is, of course, value in resisting the temptation to act hastily and rashly, but too often courts will try to justify plain old inaction with “restraint” and “deliberation”, especially in parental alienation settings. 

Parental Alienation with Kelly Peterson, Child Welfare Lawyer, Private Guardian ad Litem 

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

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What happens after an affair when you have kids?

What happens after an affair when you have kids?

I’ll answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.

If you’ve had an extramarital affair, it generally won’t do your divorce case any favors, won’t win you any sympathizers.

But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).

Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.

While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.

If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.

Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.

Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what the Utah Code contains:

(b) The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.

(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:

(i) engaging in sexual relations with an individual other than the party’s spouse[.]

(See Utah Code § 30-3-5(9)(c))

What does this mean? The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)):

¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.

¶ 27 Accordingly, we conclude that “substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce. So when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce.

*****

¶ 53 Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination. Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may … attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,” and, “to the extent possible,” to “equalize the parties’ respective standards of living.”

¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties” because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.” So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.

¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.

¶ 56 Section 30–3–5 also provides guidance for how a court may adjust the amount and length of an alimony award in the event the court determines that one spouse’s fault necessitates a departure from the default economic alimony factors. For example, although section 30-3-5(8)(e) urges district courts as “a general rule,” to “look to the standard of living, existing at the time of separation,” it also instructs courts to “consider all relevant facts and equitable principles,” and grants courts “discretion” to “base alimony on the standard of living that existed at the time of trial.” When section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault provision, it is clear that where a court determines that one spouse’s fault would make it inequitable to maintain both parties at the standard of living enjoyed during the marriage, the court has the discretion to lower the award to an amount sufficient to sustain the at-fault spouse at a reasonable standard of living post-marriage, rather than the standard of living the couple enjoyed during the marriage.

¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.

¶ 58 Therefore, under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.

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

https://www.quora.com/What-happens-after-an-affair-when-you-have-kids/answer/Eric-Johnson-311?prompt_topic_bio=1

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Should we put divorcing couples in an adversarial divorce court system?

People who are getting divorced fall into one of two categories:

  • those who want to divorce while doing each other as little harm as possible; and
    those who don’t care what happens to their spouses in divorce and who are driven by self-interest, vengeance, and/or malice.
  • Couples in the first group are not forced into being adversarial with one another or forced to process their divorce to completion through an adversarial system. If and when they simply treat each other as each of them wished to be treated, they can dissolve their marriage and divide their property and responsibility for debts between them in a fair, expeditious, and economical manner, without having to involve the court other than having the judge approve their divorce settlement.

Most divorcing couples would choose—and correctly choose—to be nonadversarial if they understood that our adversarial system is an emotional and financial meat grinder.

But, as is typical of human nature, almost everybody going through a divorce for the first time doesn’t believe the horror stories they are told about divorce, or if they do believe the stories (and these stories are true, folks), nevertheless believe that they are exceptional. Their fear, anger, and avarice blind them to reality, causing them to believe that their divorce experience will beat the odds. Fools. Damn fools (and I’m a divorce lawyer, but that doesn’t mean I want to see anybody spend money on my services needlessly). Sometimes you need to go through the court system for a divorce. Sometimes you can’t avoid it. But if you can, for the sake of you, your kids, and yes, even your terrible spouse, don’t seek to vindicate yourself in the court system, seek to extricate yourself from it as much as you effectively can.

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

https://www.quora.com/Should-we-put-divorcing-couples-in-an-adversarial-system-like-a-family-court/answer/Eric-Johnson-311

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How can we change divorce court to make it easier on the children?

  • Institute a “loser pays the prevailing party’s attorney’s fees” rule.
  • make divorce cases more litigant focused and tailored to meeting their needs and the needs of their family, instead of tailoring the cases for the convenience of the courts and lawyers;
  • focus making divorce cases take less time to work their way through the court system. This reduces anxiety and emotional distress, reduces costs, promotes just and equitable outcomes, and helps prevent other abuses of the legal system caused by delays;
  • require judges to make commendably detailed written findings of fact and conclusions of law to support their rulings on every issue in a divorce case;
    • rather than make the standard a negative one (e., the ruling stands unless it can be shown to be an abuse of discretion) require that they show that their rulings are as equitable as they could reasonably make them for the parties and their children under the circumstances;
  • subject to rigorous, forensic psychological examination and evaluation every litigant in a divorce case in which child custody is an issue and where accusations of any kind of physical, emotional/psychological, sexual, financial, or any other kind of abuse of spouse or children are made.
    • Find out whether the allegations are true
    • Find out if the accusations are sincere or motivated by malevolence and/or intent to defraud the court
    • Why? Because:
      • if you are falsely accused of abuse, it will be the seriousness of the allegations, as opposed to the substance of the evidence, that will determine how your judge rules.
      • far, far too often courts, when confronted with allegations of abuse, take the easy way out and err on the side of caution. What I mean is that the courts will analyze the situation like this: “I don’t want to determine that there is insufficient evidence to support these abuse allegations only to have a child or ex-spouse wind up in the hospital or dead later. If that happens, then it looks like I failed to protect the ex-spouse and/or child, which will look like I failed to do my job competently. I may end up the subject of news reports that humiliate and embarrass me and lays my job as a judge in jeopardy. But if I take a “better safe than sorry” approach, then while I will be violating my oath of office by infringing on the parental rights of a parent who I am not convinced is an abuser (and thus denying the children that parent’s loving and beneficial impact on their lives), that would be nigh onto impossible to prove (and stories like this rarely makes the news anyway), and I so I all but completely avoid the risk of being faulted for failing to protect. That settles it. I will err on the side of caution.” That’s a gross miscarriage of justice, but it’s far too often what judges do in these circumstances.
    • All but mercilessly punish litigants and witnesses who lie to the court. The purpose of our justice system is to get to the truth and then apply the law based upon the facts as best we can know them. “Perjury is considered a serious offense, as it can be used to usurp the power of the courts, resulting in miscarriages of justice.

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

https://www.quora.com/How-can-we-change-the-court-system-in-order-to-make-divorces-easier-on-the-children/answer/Eric-Johnson-311

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