My answer comes from the perspective of a divorce lawyer who’s been in practice for 26 years. Note that I believe in marriage. Although I am a divorce lawyer myself, I am not divorced, and God willing, I never will be. I would like nothing better than for everyone to be so happily married that I need to find another line of work. I support and advocate for marriage. And under the right circumstances, I believe in remarriage. While there are plenty of fun, satisfying, and fulfilling things one can and should do as an unmarried person, my life would be comparatively empty without my wife, my children, and the incomparable joys of being a husband and father. For all the people who tell you how glad they are to be unmarried and childless, few really mean it.
If you found your first marriage to be difficult, the odds are that a second marriage will be harder than your first. This is not always the case, but it usually is. This is not to say that if your first marriage failed you should not want or try to remarry to seek and enjoy the blessings of marriage for yourself and to be a blessing to your spouse. If, however, you caused your first divorce or even struggled in your first marriage because of your own demons, you’ve likely got some serious character and personality flaws to correct before you can remarry successfully. Resolving your personal issues and correcting course not insurmountable, but it is unavoidable, if you want a second marriage to work. But take heart: it can be done, it’s worth doing.
I was once asked what I believe the three main causes of divorce are. I answered that question with this: While there are many reasons one may need or feel the need to divorce, the “top 3” reasons are, in my experience: 1. Broken trust (whether that is caused by infidelity or hiding a substance abuse problem or failing to “pull one’s own weight” in the marriage relationship, etc.); 2. Placing self-interest ahead of fostering the marriage partnership (which usually takes the form of expecting your spouse to be perfect and to be solely or primarily responsible for your happiness); and 3. Immaturity and/or some kind of mental health disorder.
Thus, while nobody can ensure a marriage never ends in divorce it is crucial to your marriage (whether it’s your first or second) that you and your spouse be and want to be trustworthy, be devoted, be responsible, be sober, and that you care and want to for your individual and your spouse’s mental and physical health. If you or your prospective spouse feel that’s asking too much, don’t marry for the second (or even for the first) time.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Do your research with due diligence. Interview a lot of different firms and attorneys (I’m talking 5 to 10, not just 2 or 3—you’ll never get a feel for the diversity of competence and incompetence unless you do). Don’t be offensive in your questioning, but do ask candid and serious questions of those you interview to get an idea of the lawyer’s (and of the office’s) personality and professional culture, and approach to the work.
Lawyers are trained to be persuasive, so don’t be taken in by simply what they say or how well you perceive they say it. Most lawyers who are mediocre and incompetent can still charm you in conversation fairly well, if you’re not discerning.
Don’t hire the least expensive or the most expensive attorney. Hire the best attorney you can afford, and if the best attorney you can afford is incompetent, then you either need to get more money for a good attorney or you’re probably better off with no attorney at all. Paying an incompetent attorney is just wasting your money.
Don’t base your decision on online reviews. Great online lawyer reviews are easy to fake and usually are fake.
Don’t hire based solely or primarily upon the recommendations of friends alone. Some friends have no idea who’s good or bad, but they “recommend” people so that they look smart and connected, not really to help you. Some friends surprisingly don’t know a good attorney from a bad one, even if they think they do.
Even when you’ve done your best to ensure you hired a good attorney, it is virtually impossible to know whether you’ve hired a good or bad divorce and family lawyer until after you’ve worked with him/her for a few days or weeks. Pay close attention in those first days and weeks.
“Hire slow, fire fast” is good advice for who your attorney is. Take your time to find who you believe—after conducting a solid investigation—is a good attorney before you hire one. In the unfortunate event you realize your attorney stinks, don’t beat yourself up about; many, many lawyers succeed by being deceitful. But once you discover your choice of attorney was a bad choice (a bad lawyer), replace him/her as fast as you reasonably can. Don’t try to reform your bad attorney. Odds are high that it won’t work. Don’t hold on to your incompetent attorney because of sunk costs. Your lousy attorney will only cost you more the longer he/she stays on your case. Hire slow, but fire (when you need to fire) fast.
If your lawyer:
(or a member of his/her staff) returns your calls and emails and text messages promptly and addresses all of your questions and concerns (your good, thoughtful questions and concerns—if you are the type who runs to the phone or the computer in a panic or on a whim with any and every question having failed to do your own homework first, expect your lawyer to get testy with you sooner than later);
(or a member of his/her staff) promptly sends you complete copies of correspondence with opposing counsel and others involved in the case;
(or a member of his/her staff) promptly sends you complete copies of everything he/she files with the court and that opposing counsel files with the court;
(or a member of his/her staff) sends you drafts of the motions and other documents he/she is preparing to file with the court, so that you can review and comment on them and approve them for filing with the court before they are filed with the court;
and his/her staff reflect a desire to do their best in every aspect of their work;
checks in with you regularly to give you update and to see how you’re holding up;
explains the legal process to you before you file your case and as your case unfolds;
shows up to court on time, is clearly knowledgeable of the facts and the applicable law, and is prepared to argue your case zealously at hearings;
isn’t afraid to tell you when your case or elements of your case is/are weak, and doesn’t offer or agree to do whatever you want “if the price is right”; and
isn’t afraid to take your case to trial (in other words, isn’t champing at the bit to get you to agree to quick and dirty settlement),
you likely have a good lawyer. A lawyer who delivers real value for the money you pay your lawyer. If your lawyer or his/her staff doesn’t do these all of these things, you likely have a bad lawyer.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Is the percentage of married people getting a divorce still about 50%, or is it now higher?
It’s actually a bit less than 50% currently and for the past few years. This is likely not because fewer people are divorcing as it is because fewer people are marrying in the first place.
Addendum: I’ve seen claims that the COVID-19 pandemic has caused a spike in divorce filings. That makes sense, but I haven’t seen it personally. That may be due to the bulk of the spike consisting of divorcing couples handling their divorces without a lawyer. I don’t know, but that makes sense too.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Pending divorce spouse has moved out and stopped paying bills. Should I report to my attorney or just wait until we go to court?
Report this to your attorney immediately. There are many things—and at least two specific things—that you and your attorney can do in response in an effort to protect you and your family.
And the sooner you inform your attorney, the faster your attorney can respond and the more your attorney can do to ensure that your attorney’s actions provide you the greatest benefit and the greatest protection.
You want to ensure that bills and other important family expenses are being paid for your and your children’s well-being, to prevent losing your home to foreclosure or eviction, ensuring that you have heat and water and electricity, to ensure that the car is not repossessed, etc.
You want to ensure that bills and other obligations are paid in full and on time to protect your credit rating, which will be even more important to you after the decree of divorce is entered and you are newly single and will need to rely upon your credit alone.
If there are already temporary orders (also known as orders pendente lite) in place that order your spouse to pay some or all of certain family expenses, bills, and obligations, you and your attorney can file a motion with the court to enforce these orders and too hold your spouse in contempt for failing to pay them and to compel your spouse to pay them. If such orders are not yet in place,, you and your attorney can file a motion to obtain them for the purpose of ensuring that family expenses continue to be paid during the pendency off your divorce action.
Utah Family Law, LC | divorceutah.com | 801-466-9277
There are many websites with lots of free information that is good. The problem is being able to tell the good content from the bad. This is why, whether you intend to hire a lawyer to handle some or all parts of your divorce case, you need to read a lot to get a solid understanding of how divorce works—and not just the general concepts of divorce, but also how divorce works specifically in your jurisdiction (i.e., the state and county and city where you will be filing for divorce).
As for the best DIY divorce sites, I do not know of any completely free of charge sites, and I do not know which ones, if any, offer a free trial (if they did, most people would use the free trial and never pay). Again, you will want to review many of them to get a feel for what features they offer, how well these sites function, and how much they charge. You’ll want to find the site that caters to your skill level and budget without sacrificing the quality of their forms.
I worked closely with (but I am not employed, or paid by, or an owner of) the people who created ourdivorce.com, which I think is one of the best DIY divorce sites for divorce in the U.S.A. (not worldwide) because it was created from the ground up around the non-lawyer DIY divorce site user. It’s designed to make the process of divorce and the choices you and your spouse make along the way understandable and clear.
Remember: just because you are not a lawyer and just because you prepared your divorce forms yourself does not give you a “do over free” pass if the DIY forms you prepared were prepared incompletely, mistakenly, erroneously, or in any other a way that does not do what you wanted or intended. DIY divorce websites and forms are getting better and easier as technology advances, but they are still not a perfect substitute for a skilled lawyer’s help. So no matter which DIY site and forms you choose to use, BE SURE TO REVIEW THE FINAL PRODUCT WITH A SKILLED, EXPERIENCED LAWYER to ensure your forms are as you want them to be and as they need to be before you sign anything and before your file anything with the court.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What advice would you give to someone who has just become one of the parties in a divorce proceeding?
#1. Know this: divorce law and the divorce process are almost surely not what you think they are. They are scarier, more complex, more confusing, more time-consuming, more expensive, more disappointing, and more discouraging than you can imagine. Ignore my words at your peril.
#2. Don’t sign anything your spouse asks you to sign without reviewing it with a good divorce lawyer. Don’t let what your spouse tells you about “how it’s gonna be” upset or worry you. Don’t believe him/her when he/she says, “My lawyer says you must ______” or “I have the best lawyer in town.” Most of what your spouse tells you will be lies meant to intimidate, coerce, and dupe you.
#3. Don’t take friends’ and family members’ advice as substitute for the advice of a good attorney. Your friends and family members usually mean well, but have no idea what they’re talking about.
#4. Keep an eye on your valuable things and information. They tend to disappear once a divorce is filed. Secure:
your financial accounts against your spouse draining them;
your important documents (this is not an exhaustive list):
tax records
loan/debt records, loan and credit applications
appraisals/valuations
bank/financial institution records
insurance records
birth certificates
Social Security cards
passports (for you and the kids)
pay stubs
account statements
certificates of title
estate planning records
business records
medical and health care records (for every member of the family)
photographs
your prenuptial or postnuptial agreement, if you have one
etc.
Inventory everything (take videos and photographs of it all) that you own (both jointly and separately);
make sure your password-protected accounts (e-mail, cell phone, social media, credit cards, bank/financial institution accounts, bills to pay, financial accounts, credit cards, etc.) cannot be accessed by your spouse without your advance knowledge and consent;
route your personal mail to a P.O. Box to which only you have access;
#5. Don’t act out of fear or anger or revenge. If you do, you may do your case irreparable damage. Keep a cool head. Get a good divorce attorney’s advice.
#6. Talk to a good divorce lawyer (not just any lawyer, not just any divorce lawyer, but a good divorce lawyer) now. Right now. Not next week. Now. Right now. Pick up the phone and make an appointment with a good divorce lawyer right now. Timing can and usually is crucial in divorce.
The longer you put off speaking with a good divorce lawyer the more you lose (possibly forever) the benefits of knowing what you can and should be doing right now to protect and preserve your interests and those of your children (if you have minor children).
Notice that I did not write “hire a good divorce lawyer right now.” If you can hire a good divorce lawyer right now, do it. The sooner you get competent legal representation the better. No exceptions.
But if you do not have (or falsely believe you do not have) the money to afford a good divorce lawyer, scrape together enough money to meet and confer with a good divorce lawyer for an hour. It will be one of the best investments you ever make.
A good divorce lawyer is not a bulldog. A good divorce lawyer is not a shark. A good divorce lawyer is not someone who is effective at cheating (as the old Bosnian proverb goes, “He who will lie for you will lie to you.”) A good divorce lawyer is someone with experience, skill, and decency. These kinds of divorce lawyers exist, but are very hard to find. But they are worth finding. If you want your divorce to be less expensive, less time-consuming, and less miserable, find this kind of good divorce lawyer.
#7. Unless you are young, penniless, childless, and convinced your spouse won’t or can’t hang you out to dry in divorce, don’t go the DIY route. Hire a good divorce lawyer, if at all possible.
If you:
earn money or receive money from other sources
are self-employed
own property of any kind
have money in the bank, investment accounts, or tied up in a pension and/or retirement accounts
have debts and obligations
are financially dependent upon your spouse
have a spouse who is financially dependent on you (in full or in part)
have minor children
are married to a malicious or crazy-malicious person
have been accused of abusing your spouse or children,
then odds are high that trying to divorce without a good lawyer’s representation throughout the divorce case is going to be absolutely miserable.
One part of my job as a legal assistant that I have yet spoken of has been my day-to-day interaction with potential clients. When you call a lawyer’s office you will almost assuredly first speak with a receptionist or with a legal assistant like me, and not with the lawyer himself.
Now before I go further, we want to make legal advice and assistance as available to as many people as we can, but many people don’t seem to understand how a law office operates.
May I suggest what you should do when you call a law office for the first time?
First, remember that I do not own or run the office. I’m the legal assistant. Asking me questions I can’t answer and trying to haggle with me will not get you free advice or a free consultation. That’s not my decision and I’m not qualified to give legal advice. My role is limited essentially to two basic things: 1) helping you schedule an appointment with the lawyer who can actually answer your legal questions and evaluate your case, and 2) providing background information on the firm and what it does.
Second, understand that a legal assistant is not a lawyer and thus does not know the answers your legal questions. This is not only an issue of pragmatism, but it is also an ethical matter. If I were to try to give you legal advice without being a lawyer, my boss could get in trouble for it.
Third, while there are many questions about the office and what we do that I can answer and that I am happy to answer for you, there is a difference between asking a quick question that I can handle in a minute or two and several questions that would take, at best, half an hour or more to answer.
Fourth, lawyers are like everyone else who works for a living. They aren’t in the business of working for free. They can’t be. Lawyers are expected to provide about 50 hours of free legal advice or assistance per year to those who truly cannot afford to pay for it, but unless the lawyer is independently wealthy, he can’t give away his services every day. Yet I am amazed at the number of people who call our office not just daily but hourly asking for free legal advice, even free legal representation.
Fifth, the lawyer in our office works throughout the work day. He is quite busy during the work day. He’s rarely free to answer the phone when someone makes an unexpected, unscheduled call to the office. Please do not be upset or offended if you are told when you call the office that there is no lawyer available to speak to you at that very moment. When people call our office and the lawyer isn’t available to take their call, I offer to schedule a time for them to meet with or speak with the lawyer as soon as he is available either later that day or later in the week. That is the best that he and I can do, and we hope you understand why.
Utah Family Law, LC | divorceutah.com | 801-466-9277
How do I get a copy of my restraining order that I have on my ex? I lost the original copy.
My answer applies to how you can obtain a copy of any order (not just a restraining order) in any case in which you are involved.
Easiest (but a potentially expensive) way: pay a lawyer a few bucks to help you obtain a copy.
Least expensive (but a potentially time-consuming and frustrating way) way: figure it out on your own.
How to do it on your own:
Go to the courthouse (if, in the age of COVID-19, your courthouse is open to the public) and ask an employee in the court clerk’s office to help you locate your case name and number, so that you can identify your restraining order in the file. Then request a copy of the restraining order. Be prepared to pay a copying fee.
If you cannot go to the courthouse or if the courthouse is not open to the public (because of COVID-19), get the phone number and/or email address for the court clerk’s office, then call and/or email to request help in obtaining a copy of your restraining order. Be prepared to pay a copying fee, even if the copy is emailed to you.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Rip off that band-aid and go see a lawyer immediately. Not “as soon as possible,” right now. Now. Without delay. Without any delay.
Yes, I know you don’t trust lawyers. I know you think they are way too expensive. Go find the best lawyer you can and talk to him or her anyway. just go consult with a lawyer for half an hour or more. I’m not saying you have to run out and hire a lawyer immediately. But you do need to talk to a lawyer and find out what you’re up against in divorce. And you need to do it now. It will be one of the smartest decisions and one of the best investments you will ever make. It will be one of your biggest regrets if you don’t do it.
So many people suffer by succumbing to the temptation to bury their heads in the sand when misfortune strikes.
You have no time to waste. The quicker you act, the more options you have.
Get on the phone and/or online and find a good lawyer (any lawyer is a waste of your time and money—do you best to find who appears to be the best lawyer you can find to consult) to meet with or talk with over the phone for at least 30 minutes.
Be willing to pay a hundred dollars or so for a real, substantive consultation.
“Free consultations” are hit and miss. Most “free consultations” are not for your benefit, but for the benefit of the lawyer. They’re sales pitches. You won’t learn much, and what you’re told may not be terribly frank and candid.
Learn what you’re up against. It’s not what you think. No, really, it’s not what you think.
No, really. It’s not what you think.
Even if you cannot afford a good attorney (or believe you can’t) to represent you throughout your entire divorce case, NO ONE can afford not to consult with a good divorce attorney for at least half an hour just to get inoculated against the ignorance, the shock, the pain, the trickery, and misery one can (and likely will) experience when going through divorce.
Utah Family Law, LC | divorceutah.com | 801-466-9277
So you’ve paid your divorce attorney $10,000 or so, it’s been 6 months, and essentially nothing’s getting done. What went wrong?
It could be many things. If you have a bad lawyer (and that’s highly possible) you have my sympathies. Know you’re in good company. So many people choose lawyers the wrong ways. If you realize you picked a bad lawyer, fire and replace that lawyer as soon as you reasonably can, then please share your experiences with as many people as you can, so that they don’t make the same mistakes and suffer as you have.
Most people who hire the wrong lawyer do so by:
1. hiring due to unrealistic fears and expectations which opportunistic lawyers exploit to get people to write such lawyers a blank check (or if not a blank check, a way too big check).
2. hiring too fast (without doing enough searching to find the best lawyer they can afford).
3. hiring too cheap (choosing a lawyer based upon the “lowest bidder” is a recipe for disaster because cheap lawyers are, with rare exception (“so rare it’s not worth so much as hoping for”) lawyers who are incompetent in one way or more. Usually, cheap lawyers are sloppy, lazy, stupid, and/or crooked. That stated, it is not true that the more one pays for a lawyer the better the lawyer will be. You have to find the sweet spot: best value for the money.
a. Good lawyers don’t come cheap, period.
b. A case is rarely won fast and thus rarely won on the cheap.
4. hiring based upon a recommendation. Unless the person who recommended the lawyer to you is someone you know to be so much like you, who has needs and interests, a situation, and a personality so much like you as to be practically indistinguishable from you, taking another’s recommendation on who to hire as an attorney is usually a bad move. **By all means, seek recommendations and seek opinions as to which lawyers to avoid**, **but **make up your own mind by doing your own research and by interviewing the lawyers yourself. Case in point: the lawyer who kicked your best friend’s butt may be the perfect lawyer to kick your spouse’s butt, but your best friend is not likely to tell you that because your best friend likely harbors a grudge against that lawyer.
In my personal experience, most of the time, with most judges. I’m a divorce and family lawyer in Utah, and family law gives judges such broad discretion that even those to whom their broad discretion has not gone to their heads have the opportunity to decide cases consisting of the same kinds of facts and circumstances in significantly and substantially different ways (fun fact: with the exception of Georgia and Texas, divorce cases are not permitted to be tried to a jury, only to the judge).
It’s an opportunity of which most judges especially avail themselves in divorce and family law cases. This makes it very hard to predict for a client what kind of decision to expect from a judge regarding certain divorce issues. Consequently, reading tea leaves on many issues are what divorce and family lawyers do regularly and frequently.
As an attorney, what did you learn during your first case in front of a judge and jury that is forever etched in your brain?
Interestingly enough, in 24 years of practice I’ve never tried a case to a jury. There are two reasons for this:
1) Of the few of cases that would have been jury trials had they gone to trial, each case was either dismissed before trial or settled before trial. I wanted the experience of handling a jury trial, it’s just never happened for me yet.
2) I’m a divorce lawyer and divorce trials are conducted without juries (they are tried to the judge only and are known as “bench trials” because the judge “on the bench” decides the case, not a jury).
Disappointing and frustrating things that I have learned from the divorce and child custody cases I have tried are, among other things:
After he retired (name withheld to protect and reward his candor) I asked one judge before whom I had appeared several times, “How much of what was presented to you during trial went in one ear and out the other?” He said (I quote verbatim), “Oh, about 50%.” I’m not saying all judges are that way, but there’s a lot they miss or simply ignore.
Telling lurid tales of physical, sexual, psychological, and emotional abuse are believed (or said to be believed) a shockingly high percentage regardless of whether they are known to be, in fact, true.
Consequently, in my experience most courts like to take a “better safe than sorry” and “abundance of caution” approach to allegations of physical, sexual, psychological, and emotional abuse, rather than have the guts to say (as they should), “Look, all I have allegations but no proof of them. When that happens I don’t have a preponderance of the evidence to conclude these tales are in fact true. They might be, but that also means they might not be. I won’t penalize the accused merely on the basis of the accusation alone.”
Some judges often treated statutes and court rules as optional instead of mandatory and sometimes knowingly violate the statutes rules to get to the trial outcome they desire rather than the outcome the statutes and court rules dictate.
“Let the witness finish answering your question” is often said in response to an objection to the witness either failing to answer a polar question (i.e., a question that requires a “yes or no” answer) with a “yes” or “no” or answering “yes” or “no” but then editorializing for several minutes thereafter.
“Objection, argumentative” followed by, “Sustained” are two of the most common errors in questioning a witness.
“It’s not hearsay because it’s not being offered for the truth of the matter asserted” is a “great” way to get hearsay admitted into evidence, whether the excuse is valid or not.
No, although social science research repeatedly finds that law is one of the top professions to which psychopaths are drawn (it’s #1 or #2 on most rankings). That obviously does not mean that all lawyers are psychopaths. Still, more lawyers are likely to be psychopaths than nurses and therapists, for example (bearing in mind that there are psychopaths in every walk of life).
What is it like to be a divorce lawyer?
Among other things, in my experience and the experience of other divorce attorneys I know who have been in practice about 10–15 years or longer, it severely to irreparably damages one’s faith in the legal system.
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
I am a divorce lawyer, but I wouldn’t wish divorce upon anyone except those who need to divorce to escape abuse, cruelty and other truly unbearable circumstances, and betrayal (if trust is irreparably broken).
Some people need to divorce. It’s good that the option for divorce exists for their protection.
Others who think divorce is the solution to their problem(s) are sadly mistaken. For these people divorce does not solve any problem and just creates a host of new problems.
Most people who divorce didn’t need to. If they would work on bettering themselves (both of them trying to be the kind of spouse they want and need) and then turn their attention to bettering the marriage, most marriages could be happy ones. Not perfect ones (there is no such thing), but happy, worthwhile marriages. This takes effort and sacrifice, and patience and trial and error, but the results are still better than a needless divorce.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In the U.S., “lawyer” is synonymous with “attorney” when it comes to describing one who is licensed to practice law. There is no difference between a lawyer and an attorney when it comes to hiring someone who is licensed to practice law.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Unfortunately, it’s almost impossible to identify a good lawyer without using his/her services for a while to see if you “got it right” on your choice. There are, however, a few good rules of thumb to help you avoid a bad choice. This is how I’d do it, if I were not an attorney, but in the market for one:
With rare exception, new lawyers aren’t very good (I wasn’t when I was fresh out of school, even though I was trying my best and doing as well as could be expected of a newly-minted attorney). They don’t really teach you how to practice law in law school, they teach you a lot of information you’ll need in the practice of law, and they teach you how to pass the bar exam. But how to do the job is something a law school really was never intended to teach. You’re expected to learn the practice of law on the job. So a potential client will improve his odds of getting a good attorney by getting an experienced attorney. Look for a lawyer with at least about 7 consecutive years of experience in the field of practice you need help with.
Look for someone who can give you clear and straight answers to your questions (and an attorney who has the confidence and humility to answer your tough question with “I don’t know” may be a better choice than the attorney who appears or tries to appear to be a know it all).
Understand, understand, understand that you get what you pay for. While it is possible that you find a great attorney for cheap, the odds are highly against it. A good lawyer cannot do the job well without being paid well to do it.
Find someone you feel you can trust. Someone who works with your personality and your schedule. Now you have to do your part in your case. You have to accept the fact that your attorney isn’t going to be your legal slave (you will have to do a lot of your own work to help your case succeed). And you can’t just let your gut guide you, but if, after you’ve vetted a few attorneys and created a short list, you don’t feel you and a particular attorney on that list would be a good fit, you and he/she probably won’t be.
Don’t just interview 2–3 attorneys. Interview 5–6. Or more, if you have time. There are lot of attorneys, and so there are a lot of bad ones out there. Taking the time and effort to sort through them will be rewarded.
Once you’ve narrowed the field to 3 attorneys or so, go watch them in action in court. See how they conduct themselves. You can call the court clerk for the local courthouses and ask if and when that attorney is scheduled to appear in court and where. And you can turn this method on its head with good results too: just go to court and watch domestic relations proceedings. They are open to the public. Watch for attorneys you feel are prepared, knowledgeable, carry themselves well and know how to handle the give and take of argument and questioning witnesses. After the trial or hearing, go up and introduce yourself and ask if that attorney is taking on new clients.
Finally, and unfortunately, I’ve found that asking judges and other attorneys who they believe to be a good attorney has usually led me in the wrong direction. Why? Most judges and other attorneys believe a “good” lawyer is someone they get along with. ‘Nothing wrong with being well-regarded, but if the reason for that is because that lawyer “gets along to get along,” I’ve found that means that that lawyer values his/her relationships with judges and other attorneys more than doing the job well for his/her client. Beware.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Personal service is getting scarce. That’s not necessarily a bad thing. Some services we’re happy to accept from a machine: a quick car wash, the convenience of an ATM. But some help (and the price paid for it) requires personal service.
But have you heard of the difference between “having a job” and “running a business”? It’s a popular idea among professionals of all stripes. It can confuse and hurt you, if you don’t know it and recognize it when you start your search for your divorce lawyer (or any other kind of lawyer you may need).
You reap what you sow.
Who wouldn’t enjoy a thing that brings customers in and spits money out the other end? With the exception of owning a slot machine in a Wendover truck stop, the idea is a fantasy. You reap what you sow. What a divorce lawyer sows is his effort within the context of his skill and expertise. Selling personal service means the lawyer is literally offering to give of himself in performing those services.
Would you patronize a physician who focuses on how to bill the patient, yet spend as little time with a patient as possible? Consciously hire a lawyer who doesn’t work on your case, has a junior associate do all the work, and then takes the credit (and bills for) the work as his own?
As tempting as it is to sell one thing and deliver another that’s nothing but bait and switch.
Granted, a one man band will rarely outperform the well-run orchestra. A good professional must not run faster than he has strength. No one expects a good doctor to do routine work like administering shots. The good lawyer need not waste time scheduling his own appointments. Every savvy businessperson must organize his/her business and have administrative help, or he 1) can’t do his best, highest work; 2) can’t develop professionally; or 3) (ironically) grow his business.
But this “build a business that runs without you” mentality does not apply (it cannot apply) effectively, morally, or ethically for people who offer and provide personal services personally.
Selling Personal Service, but Delivering Something Else (even if it’s not bad)
If you market “a law firm,” as opposed to “Bob Smith, Esquire,” you’re offering the services of a business (a group of people and equipment–like a corporation–that provide the service, and it doesn’t matter who or what they are specifically, so long as they deliver). ‘Nothing wrong with that because you’re being transparent about what you offer and who and what does the job.
If you market YOUR legal services you’re marketing yourself, your skill, your expertise, not just “your system”. It’s cheating the customer to market yourself, then deceptively hand off the client to your “system” to process them through, never to have any further help from you. If you personally offer to care for someone, you (not an army of surrogates) are expected to provide the care offered. That’s what you sold, that’s what is paid for. That is what you are obligated to deliver.
