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Recent thoughts about family law

Recent thoughts about family law

I’ve been prompted recently to express my thoughts and opinions about the judiciary generally in the family law context. Here are a few thoughts I feel are worth sharing:

– Too often litigants and attorneys are afraid to present certain arguments and evidence and proposals for fear that merely raising fair-game topics, much less trying to advance them within the bounds of the law and procedure, will anger and/or offend the court to their detriment.

– Judges and commissioners deciding family law cases must be far more about the law and the facts dictating their decisions and much less about subjectively picking winners and losers.

– Judges and commissioners deciding family law cases must be far more about the law and the facts dictating their decisions and much less about indulging personal biases and subjectively picking winners and losers.

– Judges and commissioners rely on/pass the buck to GALs and custody evaluators far, far too much instead of interviewing children themselves and/or permitting children to testify. Just because this can be said of every district court* (as opposed to juvenile court) in Utah does not make universal failure/refusal right.

*If there is a judge or commissioner in Utah who will/does interview children in child custody cases to avoid the obscene expense, delays, and lack of record suffered by imposing a GAL or custody evaluator on the parties and children, I do not know of any such judge or commissioner. I get told frequently by many judges and commissioners who refuse to interview children something along the lines of, “I am not afraid/unwilling to interview children, I just [insert pretextual/lame excuse here],” and there are many judges and commissioners who tell me that it is their personal policy not to interview children under virtually any and all circumstances.

There are judges and commissioners everywhere, not just Utah, who act a law unto themselves. Always? No. But any time is too often, and there are times when I’ve witnessed this more times than can be written off to mere honest mistakes. Whether a judge or commissioner knowingly acts this way, ignorantly acts this way, or both, it is inexcusable.

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Do I have to respond to discovery questions in a divorce?

Do I have to respond to discovery questions in a divorce?

Yes, unless you can persuade the court that some or all of the discovery requests:

  • violate the rules governing discovery, such as exceeding the number of discovery requests allowed;
  • are unreasonable and/or disproportional (given the needs of the case);
  • are not legitimate but instead serve the purpose of causing you annoyance, embarrassment, oppression, or undue burden or expense; and/or
  • are not reasonably likely to lead to discoverable evidence can be sought through discovery.

If the court agrees with these kinds of arguments, then the court can order that you are under no obligation to respond to the improper discovery requests.

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

https://www.quora.com/Do-I-have-to-respond-to-discovery-questions-in-a-divorce/answer/Eric-Johnson-311

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Who is responsible for debt when you get a divorce or if you break up?

Who is responsible for debt when you get a divorce or if you break up?

For the jurisdiction where I practice law (Utah), the law governing who can be made responsible for the payment of marital debts in divorce is very different from the law governing responsibility for debts incurred during the period of time a couple lives together without being married.

DIVORCE

Debts you and your spouse incurred jointly. The presumption in divorce is that responsibility for debts incurred jointly during the marriage (i.e., in the names of both the husband and the wife) be divided equally between the both spouses. But this presumption can be rebutted if it could be proven that there is a compelling equitable reason for an unequal division of responsibility for marital debts, such as one spouse having a significantly higher income than the other or if you can show that your spouse benefited from incurring the debt far more than you did.

But what about debts that you incurred during the marriage in your name only? Such as credit card debt for expenses you incurred for the benefit of the family? The presumption is that debts that incurred during the marriage in your name only will be your sole responsibility unless you can prove that the expenses you incurred in your name only were “family expenses,” meaning expenses that were not incurred for you sole or primary benefit, but for the benefit of both spouses or for the benefit of the parents and children or for the benefit of the children. In other words, just because the credit card or the loan or the invoice is in your name only, that doesn’t mean you should necessarily be the only one responsible for paying such a debt if the debt was for your son Jimmy’s braces, for your daughter’s wedding, or for a trip for two to Hawaii.

BREAKUP OF COHABITING UNMARRIED COUPLES

First, you need to understand the difference between mere roommates and a couple who lives together like a married couple but for the fact they are unmarried.[1]

There is both a quick, but oversimplified explanation for how the law works and a more complex explanation when dealing with division of responsibility for debts when an unmarried cohabiting couple breaks up.

The quick and oversimplified explanation: an unmarried couple that decides to live together clearly do not enjoy the same legal rights that married couples do. If a man and woman (or two gay men or two lesbians for that matter) decide they want to live together and have sexual intercourse with each other, but don’t want to be married, they certainly can do that, but one of the differences between married couples and near cohabiting couples is that one of the two members of the cohabiting couple cannot obligate the other for debts that one of them incurs. Because there is no family, one of the members of the couple cannot incur expenses as a “family expense” and thus make the other member of the couple liable for those debts or expenses. Simply (but not completely accurately) stated, cohabiting couples cannot obligate each other to debts and expenses without each other’s knowledge and consent.

The more complex explanation: You may have heard of concepts such as “palimony”; that doesn’t exist in Utah. But there are other equitable concepts that can be used to recover money from people (cohabiting or otherwise) who claim the lack of a formal contract as a means of taking advantage of others. Here are just a few:

Unjust enrichment. To establish under a claim for unjust enrichment, you must prove: 1) you conferred a benefit on your cohabitant; 2) an appreciation or knowledge of the benefit by your cohabitant; and 3) your cohabitant’s acceptance or retention of the benefit under such circumstances as to make it inequitable for your cohabitant to retain the benefit without payment of its value.

Quantum meruit (quasi- contract or a contract implied in law). To recover under quantum meruit, you must prove that your cohabitant received a benefit from you, had an appreciation or knowledge of the benefit, and accepted the benefit under circumstances that would make it unjust for him/her to retain it without compensating you.

Constructive trust. Courts recognize a constructive trust as a matter of equity where there has been (1) a wrongful act, (2) unjust enrichment, and (3) specific property that can be traced to the wrongful behavior. Such trusts are usually imposed where injustice would result if a party were able to keep money or property that rightfully belonged to another.

COMMON LAW MARRIAGE

Now remember, I am writing about what the law is in the jurisdiction where I practice divorce and family law (Utah). Utah recognizes common law marriage. Most states do not.

There are two different kinds of marriage in Utah: solemnized marriages and common-law marriages. A “solemnized marriage” is a marriage that involves the performance of a ceremony by someone authorized by the government to perform marriage ceremonies. A common law marriage is created in Utah if a couple has not entered into a solemnized marriage but who have instead entered into a contract and who:

(a) are of legal age and capable of giving consent;

(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume marital rights, duties, and obligations; and

(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

So one way to get your cohabitant to be responsible for debts that you incurred in your name only, but for the benefit of you and your cohabitant and/or you and your cohabitants children during the period of time you were cohabiting together, would be if you could prove that you and your cohabitant were common law spouses. The problem is that most people who are cohabiting are doing so expressly for the purpose of not being married. They want to live together have sex together even have children together and essentially act like a married couple without having incurred the obligations of marriage. When that is the case, common law marriage cannot exist. There are a lot of people who have cohabited for years or even decades and then split up and are then shocked to discover that they do not enjoy the same rights as they would had they been married and were then seeking a divorce. Many of these people then tried to revise history to claim that their cohabitation relationship was in fact a common-law marriage. Consequently, the claims of unmarried people who claim to be common-law spouses for the purpose of obtaining financial benefits are met with skepticism, and proving common-law marriage is extraordinarily difficult to do.

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

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[1] *Two or more guys or gals who live together as roommates in the same apartment to save money while they go to college, who aren’t engaged in a romantic relationship, who aren’t having sexual intercourse with one another—they are clearly not married and they are clearly not “shacking up”. Each roommate is on his/her own for his/her own debts. If one of them generously chooses to purchase groceries for everyone in the apartment without compensation, that’s a gift. The generous roommate cannot complain about all the money he or she is “owed” when he or she decides to move out. Roommates cannot very easily obligate one another to share expenses unless they agree to do so in advance.

https://www.quora.com/Who-is-responsible-for-debt-when-you-get-a-divorce-or-break-up/answer/Eric-Johnson-311

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What are you tired of explaining when it comes to lawyers?

Nothing. When I am tempted to feel irritated over the questions people ask about lawyers and legal matters, I remember that the questions–though recurring–aren’t being asked by the same person over and over again, but are coming from different people who are asking them for the first time.

What I do find irritating are client gripes masquerading as questions that start with “I don’t understand….”

For example, the client knows why the case is taking as long as it is taking, why the client’s case is weak, why the fees are as high as they are, etc., but believes that by feigning ignorance and saying “I don’t understand…” it all falls on my shoulders to “fix” problems (free of charge, of course) that are not of my creation and/or not within my power to control.

If you are frustrated and anxious about your case, just come clean to your lawyer about it. If your lawyer is a good one, he or she will be much more responsive to candor than if you cloak your fears and concerns with “I don’t understand” statements.

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

https://www.quora.com/What-are-you-tired-of-explaining-when-it-comes-to-lawyers/answer/Eric-Johnson-311

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