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Tag: finances

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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Divorce Mediation – To Good to Be True (For Most People)

I know you want to believe that divorce mediation is the trick to a fast, easy, cheap, amicable divorce. I know you want to believe this, and we know why. But if it sounds to good to be true, it likely is. So it is with mediation.

Divorce mediation won’t work unless you and your spouse trust each other to negotiate in good faith and honor any settlement agreement reached. You cannot get out of mediation any more than you put into it.

Divorce mediation was a good idea that the legal profession spoiled by making it mandatory.

Divorce mediation is a good idea when it’s done at the beginning, but divorce lawyers put it off until they’ve squeezed a hefty profit out of their clients through a bunch of pretrial motions and discovery. Thus, mediation typically “succeeds” because by the time the parties get to mediation they’re so emotionally and financially spent that they settle out of resignation and exhaustion; “think win-win” had nothing to do with it.

Mediation worked well when it was voluntary and between two people who both believed they might reach an agreement they trusted each would honor. Now mediation is just one more of the “dumb [and expensive] things I gotta do” before I can get divorced.

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

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How long do you pay alimony in Utah?

The law governing the duration of alimony is pretty simple and straightforward: 

See Utah Code § 30-3-5, subsections (1)(c) and (11)(e): 

(1) As used in this section: 

***** 

(c) “Length of the marriage” means, for purposes of alimony, the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court. 

***** 

11(e) 

(i) Except as provided in Subsection (11)(e)(iii), the court may not order alimony for a period of time longer than the length of the marriage. 

(ii) If a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony. 

(iii) At any time before the termination of alimony, the court may find extenuating circumstances or good cause that justify the payment of alimony for a longer period of time than the length of the marriage. 

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

https://www.quora.com/How-long-do-you-pay-alimony-in-NC/answer/Eric-Johnson-311  

 

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My question to Utah Office of Recovery Services (ORS):

Good morning, 

I am a divorce and child custody lawyer. I have a question that all of my clients ask me that I don’t have the answer to: 

“Why does ORS and/or the court need my child’s Social Security Number in a child support case? I can see why they would need the Social Security Numbers for both parents, but why for the kids?” 

It’s a good question. Do you know the answer why (other than “it’s in the rules”), and if you don’t, can you point me in the direction of who knows the answer? 

We are unable to answer this question on behalf of the courts, but can provide you some of the reasons why ORS needs a child’s Social Security Number.  

When ORS establishes legal paternity for a child, we are required to report the paternity establishment to vital records, and this process requires the child’s Social Security Number to be sent with the child’s other information (name, date of birth, etc.).  On the enforcement side, ORS is required to enforce medical insurance in conjunction with enforcing child support.  As part of this process we send the parent’s employer the National Medical Support Notice ordering the child to be enrolled in insurance. The form includes the child’s Social Security Number, because it is required to enroll the child in insurance. This is a federal form all child support agencies are required to use.   

Thank you for your time and email. 

Customer Service 

Office of Recovery Services 

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

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My estranged father keeps asking me for money, what do I do?

My parents are divorced, my father has no savings, he didn’t work for the entire period of their marriage, we were estranged for a while and now we are back, but now he keeps asking me for money, what do I do? 

Do unto others as you would have them do unto you. I fully acknowledge that is easier said than done, but that doesn’t excuse any of us from doing the right thing.  

If your father is a moocher, he has not right to mooch and you have no obligation to enable him in his mooching, just as you have no right to mooch. 

If your father is in real need and you have the ability to help him, help him. He is your father, and we are commanded by God to honor our parents, and that commandment is not qualified to apply only to good parents. I can’t claim to understand why this is (just as I can’t always understand the “reason” behind every one of God’s commandments in every situation), but I believe it. Honoring our parents does not mean turning a blind eye to their faults and misconduct. 

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

https://www.quora.com/My-parents-are-divorced-my-father-has-no-savings-he-didnt-work-for-the-entire-period-of-their-marriage-we-were-estranged-for-a-while-and-now-we-are-back-but-now-he-keeps-asking-me-for-money-what-do-I-do/answer/Eric-Johnson-311

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Is it easier to get a divorce if you and your spouse have nothing shared?

Is it easier to get a divorce if you and your spouse have no debts, no shared property, and no children?

Typically, generally, usually, yes. In the overwhelming majority of cases. 

You identified three of the top four reasons, in my opinion, that divorces are acrimonious and bitterly fought over protracted and ruinously expensive periods of time (the fourth big reason is alimony). The fewer the reasons to fight, the faster, less expensively, less physically and emotionally burdensome, and easier the divorce process is. 

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

https://www.quora.com/Is-it-easier-to-get-a-divorce-if-you-and-your-spouse-have-no-debts-no-shared-property-and-no-children/answer/Eric-Johnson-311  

 

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How do I get a quick, cheap divorce?

    • Easiest way up front, but usually most foolish, most financially and psychologically expensive in the long term: give your spouse whatever he she wants/demands (while it is possible for your spouse to make a proposal for a divorce settlement that is perfectly fair to you both, this rarely happens. I’ve seen it happen, but it’s one of those black swan occurrences).  
      • If you’re willing to do give your spouse whatever he/she wants in divorce, your spouse may (unless he/she has tremendous chutzpah) even do all the work necessary to process the divorce case to completion (at your expense, of course), so that all you need to do is sign a document or two that results in you losing everything to your spouse.  
      • If it weren’t obvious yet, I’ll be more concise: odds are that if agree to whatever your spouse proposes for divorce, your spouse will take extreme advantage of you.  
      • It’s easy to step off a cliff, but the consequences are hard, lasting, and usually irremediable.  
      • If you believe that “being conciliatory” will make the divorce process easier, you are mistaken. That’s “let the leeches bleed in the hope it will persuade them to stop bleeding you” thinking. 
    • Second easiest (and usually still highly foolish and long-term damaging) way: don’t hire—or at least confer with—a lawyer and do it all yourself.  
      • Can you get a divorce without a lawyer? Yes. It’s getting easier every day with all the resources the internet is making available to do it yourselfers.  
      • Does that mean that the DIY divorce is likely to be one of high quality? One that covers all the legal bases? One that does not result in you making boneheaded, irreversible mistakes? No, not likely. Not bloody likely.  
        • If you and your spouse are young, dirt poor, have no assets of high value, have no crushing amounts of debt, have no children, haven’t been married long, and neither of you want alimony, then a DIY divorce may be worth the risk because even if it works against you, you should be able to recover from it without suffering for a lifetime. Otherwise, a purely DIY divorce usually ends badly for one or both spouses.  
      • I know that to a non-lawyer divorce law seems/feels like it should be fairly intuitive and straightforward. Common sensical. It is not. Really, it is not. I know you want to believe that there is no reason why you and your spouse cannot sit down with some pre-printed forms or online program, fill in the blanks, and be done and at peace. Save time. Save money. Avoid conflict. It’s so tempting to believe such a thing. So comforting. But it’s not true. It’s worse that untrue. It leads to wasted time, money, and to more pain.  
        • Lawyers make good money trying (note I wrote “trying,” not “succeeding”) to help people undo the damage their DIY divorces have done. Wouldn’t you rather spend money on a lawyer to prevent trouble, rather than to help (try to help) you clean up your mess? 
      • If you want to go the DIY route, please, please, please include in the process conferring with a good divorce lawyer (a good divorce lawyer, not just any lawyer) before you start and after you fill out the forms BUT BEFORE YOU SIGN ANYTHING. It will be some of the best money you have ever spent.  

Third easiest (and the least popular) way: Hire—or at least confer with—a good divorce lawyer (a good divorce lawyer, not just any lawyer; there are a lot of lousy divorce lawyers out there) to assist you with what you need to ensure the divorce is handled as well as can be. It will cost you money. If you hire an attorney to represent you throughout the process, it will cost you a lot of money. If your spouse is out to ruin you financially and out to ruin your relationship with your children, you will spend—and need to spend—unimaginable amounts of money on your divorce and your divorce lawyer to prevent the outcome from being even worse than they would be in the absence of a good divorce lawyer’s help.  

————— 

There are a lot of bad divorce lawyers out there. Beware. But all divorce lawyers are not bad. The good ones (the skilled ones who deliver real value) are hard to find, but can be found, and are worth finding when you have the need.  

Can there be a point at which the value of a lawyer’s help—even when the lawyer is doing his/her best work for you—doesn’t justify the expense? Yes. Of course. Sometimes the judge has it in for you and you can see you’ll never get a fair shake. Sometimes you can see that your spouse is bent on your financial and emotional ruin. There are times when it makes sense to surrender, to give up because spending money and effort and emotional capital on your divorce becomes a matter of diminishing returns. Otherwise, a good lawyer is worth more to you than the costs.  

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

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Can you get a post-judgment interest rate higher than the statutory rate?

Did you know you can request a post-judgment interest rate that is higher than the default statutory rate? 

It’s true.  

While the court does not have the discretion to lower, stay, or waive statutory interest rate, it does have discretion to exceed statutory interest if equity so requires. 

Please don’t make me regret sharing this by asking for crazy amounts of interest now.  

A judgment for child support arrearages is a “judgment” within meaning of statute providing that, unless otherwise specified by contract, judgment shall bear interest at rate of 12% per annum; thus, custodial spouse is entitled to statutory rate of interest on the judgment until paid in full; although trial court may, in its discretion under divorce statute, raise statutory interest if equity so requires, court does not have the discretion to lower, stay, or waive interest. Utah Code Ann. §§15-1-4, 30-3-5(1). Stroud v. Stroud, 738 P.2d 649 (Utah Ct. App. 1987), judgment aff’d, 758 P.2d 905 (Utah 1988). Osguthorpe v. Osguthorpe, 804 P.2d 530 (Utah Ct. App. 1990). 

Interest accruing to wife on monies due from husband in property division in divorce judgment was at statutory rate, rather than the lower rate ordered by trial court. U.C.A.1953, 15-1-4. Marchant v. Marchant, 743 P.2d 199 (Utah Ct. App. 1987).  

A higher interest rate than statutorily allowed may be equitably imposed in divorce action under where, “under the circumstances, that award is reasonable,” and, second, that an increase of 2% over the statutory interest rate imposed on the amount not paid to the receiving party within six months was not an abuse of discretion. Pope v. Pope, 589 P.2d 752, 754 (Utah 1978). In divorce action, trial court did not err in ordering that if husband failed to pay wife specified sum of cash within six months of trial court’s order that such amount would bear interest at the rate of 10% per year. Pope v. Pope, 589 P.2d 752 (Utah 1978).  

Section 15-1-4 provides the “minimum interest allowable.” Id. (emphasis added). The statute “does not preclude a District Court, under [section 30-3-5] from imposing an interest rate of more than [the statutory postjudgment rate] where, under the circumstances, that award is reasonable and equitable.” Wadsworth v. Wadsworth, — P.3d —-, 2022 WL 130617, 2022 UT App 5 (citing Stroud v. Stroud, 738 P.2d 649, 650 (Utah Ct. App. 1987) (quoting Pope v. Pope, 589 P.2d 752, 754 (Utah 1978)).  

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

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How do you win financially in a divorce?

It depends upon what you mean by “win financially.” Man divorcing people define this term differently, and the differences are extreme.  

Some people define “winning financially” as: 

  • coming away from the divorce action either 1) with as much money and and as many assets as one can get; and 2) with as few financial obligations (i.e., to one’s ex-spouse and children and/or to marital creditors) as possible; and  
  • achieving that goal by taking an ends justify the means approach (i.e., no holds barred). 

Other people define “winning financially” as being treated fairly, i.e. 

  • getting an equal portion of the marital assets; 
  • receiving or paying alimony (and if one has minor children, child support) that is set at a reasonable, feasible, and fair amount; 
  • not being saddled with a disproportionate amount of marital debts and obligations. 

The easiest way (the risky, illegal, and immoral way, but still the easiest way) to win many issues in a divorce action, including but not limited to financial issues: skilled lying, deception, and concealment. 

The right way (the honest, risky, legal, and moral way): 

  • first and foremost, to act in conformity with the principle of Mark 8:36 (“What doth it profit a man, to gain the whole world, and lose his own soul?”) 
  • understand that winning the right way takes effort and courage, and commit to exerting both to the bitter end 
  • know what law applies to the particular financial issues of your case 
  • know how the applicable law applies to the particular financial issues of your case 
  • acknowledge the relevant facts on both sides of the issue.  
    • acknowledge those of your arguments which the facts do not support.  
    • do not try to bamboozle the court into accepting losing arguments. That only weakens your credibility as to the arguments that favor you.  
  • demonstrate and articulate clearly the relevant facts that support your winning arguments.  
  • don’t let an inattentive, incompetent, or biased judge disregard or twist your admissible evidence, relevant facts, and winning arguments. Stand your ground. Give no quarter. Have the courage to defend your arguments when you are in the right. You will likely need to do so, at least some times in the course of the divorce proceedings, to win those arguments.  

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

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

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How should the child support payment system in the U.S. be changed?

How should the child support payment system in the U.S. be changed to make it more fair? 

What is unfair about child support for the child support payor (also known as the child support obligor): 

  • tying child support to the number of overnights the child spends in the custody of a parent entices many parents to seek being awarded as many overnights as possible, thereby ensuring that the one receiving child support receives as much as possible or ensuring that the one who pays child support pays as little as possible. Even when the child would benefit from being in the joint (or even joint equal) physical custody of the parents, many parents try to seek sole or primary physical custody awards simply to gain the child support calculation process. 
  • child support recipients (also known as the child support payees or obligees) who use child support money for the their own personal expenses and not for the child’s actual support.  
  • lack of accountability on the part of the child support recipient for how the child support monies are spent, to ensure that the monies are being spent on the financial support of the child, as opposed to the personal expenses of the child support recipient. 
  • child support calculation formulae that are not commensurate with the child’s actual financial needs, i.e., orders that someone has to pay more money each month (in some cases substantially more money) than is necessary to meet the child needs. 
  • child support awards that “kill the goose that lays the golden eggs” by requiring such a high amount of child support be paid that the child support payor cannot meet his/her own basic monthly costs of living. 

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

https://www.quora.com/How-should-the-child-support-payment-system-in-the-U-S-be-changed-to-make-it-more-fair/answer/Eric-Johnson-311 

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Beckham v. Beckham, 2022 UT App 65

2022 UT App 65

THE UTAH COURT OF APPEALS

VICKI BECKHAM, Appellee,

v.

RANDALL BECKHAM, Appellant.

Opinion

No. 20200935-CA

Filed May 19, 2022

Third District Court, Salt Lake Department

The Honorable Barry G. Lawrence

No. 194901020

Ben W. Lieberman, Attorney for Appellant

Ryan A. Rudd and Nicholas S. Nielsen, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1        When Vicki and Randall Beckham came before the district court for a bench trial on a divorce petition, Vicki[1] asked the court to order that she be a named beneficiary under one of the then-existing term life insurance policies on Randall. The court denied this request, a determination with which neither party takes issue. Despite both parties acknowledging that the policy had no value, however, and while expressly noting that the policy was not presented in evidence, the district court ordered Randall to reimburse Vicki the premiums she had paid for this “asset” for several years to the tune of $40,000. Randall appeals, claiming the district court erred in this award. We agree and reverse.

BACKGROUND[2]

¶2        During the divorce proceeding, Vicki and Randall disputed how two term life insurance policies on Randall’s life should be treated. Vicki asserted that the court should award her a beneficiary interest in one of the policies. In ruling on the matter, the district court noted that the parties had failed to provide the court “with the policies at issue” and that it was “unclear whether these term life insurance policies were renewable by year, or after a number of years, or ended upon Randall’s death, or were terminated in the event of a divorce.” The court also stated that “Vicki’s counsel argued that they did not receive the policy in discovery,” and citing rule 37 of the Utah Rules of Civil Procedure, the court opined that “if that [was] the case, that issue could have and should have been resolved through the appropriate pretrial procedure.” See Utah R. Civ. P. 37(a)(1)(E) (“A party . . . may request that the judge enter an order . . . compelling discovery from a party who fails to make full and complete discovery.”).

¶3        Although the court determined that it “may award a life insurance beneficiary interest to a spouse upon divorce, under general principles of law concerning the apportionment of marital assets,” it declined to do so, reasoning that Vicki did not have a financial need for the insurance benefits, that the parties never reached an understanding regarding the apportionment of the life insurance policies, and that there was “no reason to perpetuate a relationship between” the parties by granting Vicki a beneficiary interest in a policy on Randall’s life. Accordingly, the court concluded that the policies would “remain with Randall” and that he would “continue to control the beneficiary designation going forward.”

¶4        However, the court found that the parties had treated the “two policies as marital assets during the marriage,” that each party had “spent a significant amount on annual premiums,” that the “policies were clearly part of the parties’ future planning and provided a benefit to them,” and that the “evidence was clear that each party used their own funds to pay for the respective policies.”

¶5        Accordingly, the court determined that Vicki should be reimbursed for her contribution to the premiums of one of the policies:

[I]n the interest of fairness and equity, Vicki should be awarded $40,000 from Randall to reimburse her for the annual premiums she paid for the policy over the past eight years. The testimony at trial was very clear that each party used their own funds to pay for the respective policies. Thus, Vicki contributed to an asset that will remain with Randall; it is thus fair and equitable for him to reimburse her for the amounts she paid—amounts that have maintained the policy and allowed Randall to perpetuate that [p]olicy on behalf of his newly named beneficiaries.

Randall appeals, asserting that the district court should not have ordered reimbursement of premiums paid during the marriage.

ISSUE AND STANDARDS OF REVIEW

¶6        Randall argues that the district court erred “in invoking its equitable powers to order [him] to reimburse [Vicki] for term life insurance policy premiums paid during the marriage.” “A district court has considerable discretion considering property division in a divorce proceeding, thus its actions enjoy a presumption of validity. We will disturb the district court’s division only if there is a misunderstanding or misapplication of the law indicating an abuse of discretion.” Johnson v. Johnson, 2014 UT 21, ¶ 23, 330 P.3d 704 (cleaned up). And “[w]hen a district court fashions an equitable remedy, we review it to determine whether the district court abused its discretion.” Collard v. Nagle Constr., Inc., 2006 UT 72, ¶ 13, 149 P.3d 348; accord Kartchner v. Kartchner, 2014 UT App 195, ¶ 14, 334 P.3d 1.

ANALYSIS

¶7        In a divorce proceeding, a district court is empowered to enter “equitable orders relating to the children, property, debts or obligations, and parties.” See Utah Code Ann. § 30-3-5(1) (LexisNexis Supp. 2021). Here, the district court characterized the life insurance policy as a marital asset. Citing Utah Code section 30-3-5, the court noted its authority to divide marital assets and indicated that the parties had “treated” the policy as a “marital asset[] during their marriage” and that “Vicki contributed to an asset that will remain with Randall.”

¶8        The court explicitly acknowledged that it did not have access to the life insurance policies because the parties did not provide them to the court.[3] Given this lacuna, the court acknowledged that it was “unclear whether these term life insurance policies were renewable by year, or after a number of years, or ended upon Randall’s death, or were terminated in the event of a divorce.” But the court also noted that Vicki “could have and should have” resolved the lack of production “through the appropriate pretrial procedure,” presumably a statement of discovery issues seeking to compel discovery. See Utah R. Civ. P. 37(a)(1)(E).

¶9 Given the court’s acknowledgment that it was unaware of the nature of the policy, it follows that it was equally unaware whether the policy was still in effect or if it had cash value. Indeed, Vicki took the position at trial that the insurance policy had no value: “[T]hese . . . term life insurance policies . . . don’t have value. It’s contingent upon an act.” And she explicitly stated that the policy had no “cash value” and was limited to “[j]ust the death benefit.” Randall also took the position that the policy had “no value.” Neither the district court’s findings of fact and conclusions of law nor the parties’ briefs on appeal point to any record basis on which to base a conclusion that the insurance policy retained any value. Instead, all the value related to the policy—as far as the record indicates—was consumed during the marriage.[4]

¶10      Accordingly, Vicki was not entitled to reimbursement for the premiums for the simple reason that either she or the marital estate received the value—in the form of mitigating the risk in the event of Randall’s death—of the premiums she paid. Short of collecting on a claim, mitigation of risk is generally the very nature of the benefit one receives from insurance. Vicki may indeed be entitled to reimbursement if the premiums had enhanced the value of Randall’s estate to her exclusion. But on the record before us, the payment of the insurance premiums did not enrich Randall such that he continued to enjoy—to the exclusion of Vicki—the benefit of the premiums after the divorce. Or put another way, there is no record evidence that Randall “is retaining some sort of good purchased with the money” spent on the life insurance premiums. See In re Marriage of Fluent, No. 16-1321, 2017 WL 2461601, at *3 (Iowa Ct. App. June 7, 2017).[5] Rather, the only conclusion that the sparse evidence could sustain is that the “benefit” of the insurance premiums was received by Vicki during the corresponding terms of life insurance coverage. And this benefit consisted of protection from the risk associated with Randall’s potential death during each of the paid terms of the policy—a benefit that was consumed in each term. But after each paid term lapsed, Randall did not retain some benefit from the premiums—or at least there is no record evidence of a retained benefit. Thus, the premiums were not reimbursable to Vicki because she—or the marital estate—had already received the value of those premiums in the coverage the insurance policy provided on Randall’s life during the marriage.

¶11 Expressed differently, the premiums were a paid-for resource that had been consumed—like many household expenditures—during the marriage. And like the money paid for any other proper living expense incurred during a marriage, the money paid for the insurance premiums was not reimbursable upon divorce because the value of the expense associated with that item—in this case, assurance against risk provided by insurance premiums—was used up during the marriage. See Heckler v. Heckler, No. FA040084101S, 2005 WL 529940, at *1–2 (Conn. Super. Ct. Jan. 27, 2005) (denying, in a divorce proceeding, a husband’s request that his former wife reimburse him for “certain living expenses he paid on the wife’s behalf during the marriage”); see also Czepiel v. Allen, No. FA 9886060, 1999 WL 99097, at *1 (Conn. Super. Ct. Feb. 16, 1999) (“The court does not allow reimbursement for telephone bill expenses or other household expenses [that] were joint undertakings of their family . . . .”). The insurance premiums Vicki paid—even if they did proceed from her own earnings—were akin to the living expenses that are “part and parcel” of the daily marital undertaking. See Czepiel, 1999 WL 99097at *2. As such, they were not reimbursable to her upon divorce as she had already received the value she bargained for in voluntarily assuming the expense of the premiums.

¶12 Thus, the expenditures for the insurance premiums fell into the category of normal living expenses voluntarily paid from marital assets, and they were not subject to reimbursement because they had been entirely exhausted and consumed in paying for a marital expense, namely, buying life insurance for Randall—from which Vicki would have benefited had Randall died during the term of the policy. See Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (“[I]n Utah, trial courts making ‘equitable’ property division pursuant to section 30-3-5 should . . . generally award property acquired by one spouse by gift and inheritance during the marriage (or property acquired in exchange thereof) to that spouse, together with any appreciation or enhancement of its value, unless . . . the property has been consumed . . . .” (emphasis added)); see also In re Marriage of Rolfe, 699 P.2d 79, 84 (Mont. 1985) (noting that the district court “erred in returning the value of” certain prenuptial property that had “long since been consumed” during the course of a fifteen-year marriage); In re Marriage of Fluent, 2017 WL 2461601, at *3 (determining that it was “inequitable” to require a wife to reimburse her former husband $74,000 of his own funds that he had voluntarily used during the marriage “to maintain the parties’ basic standard of living” and “for the benefit of both himself and his family, without providing any accounting for these expenditures or identifying any asset (beyond the marital home) into which the monies were allegedly spent” (cleaned up)).

¶13 Accordingly, the district court exceeded its discretion in ordering reimbursement where there was no evidence that Randall continued to benefit after the divorce from the previous payments of the premiums.

CONCLUSION

¶14 Because Vicki had already received the benefit of the insurance premiums she paid, we conclude that the district court exceeded its discretion in ordering Randall to reimburse Vicki $40,000 for the premiums.

¶15      Reversed and remanded.[6]


[1] Our practice is to refer to parties by their first names when they share a last name.

[2] “On appeal from a bench trial, we view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard.” Chesley v. Chesley, 2017 UT App 127, ¶ 2 n.2, 402 P.3d 65 (cleaned up).

[3] Insofar as Vicki attempts to cast the absence of the insurance policy as a failure of Randall to disclose it, we note that Vicki had the burden of producing evidence of the provisions of the policy in question. After Randall offered testimony of the policy’s cash value—testimony we note that Vicki appeared to agree with at trial when she characterized the policy as having no “value” apart from its value contingent on Randall’s death, see infra ¶ 9—Vicki had the burden of offering evidence of an alternative valuation. See Argyle v. Argyle, 688 P.2d 468, 470–71 (Utah 1984) (stating that if a party asserts that an asset should be valued by a different measure, then “the burden of offering further evidence on alternative methods of valuation” falls on that party); accord Beesley v. Beesley, 2003 UT App 202U, para. 2.

[4] In a term life insurance policy,

[e]ach premium payment gives rise to an enforceable contractual right of coverage for an additional period of time. As premiums are paid over the life of the policy, distinct property interests in coverage for various periods of time arise. Of those distinct property interests, only one is worth anything in hindsight: coverage for the term during which the insured dies.

In re Marriage of Burwell, 164 Cal. Rptr. 3d 702, 713 (Cal. Ct. App. 2013). “Prior terms of coverage only lack value in hindsight (i.e., when it is certain the contingency has failed). Prospectively, all coverage terms have at least expected value.” Id. at 713 n.12. Thus, here the policy had no value in the sense that the premium coverage periods had expired without the contingency occurring, and these are the very terms for which Vicki received reimbursement.

[5] It is unclear how the district court found that Randall benefited from the payment of premiums by allowing him to “perpetuate” the policy for “his newly named beneficiaries.” At best, this benefit identified by the court seems speculative because the court had explicitly stated that it did not have access to the policies and that it was “unclear whether these term life insurance policies were renewable by year, or after a number of years, or ended upon Randall’s death, or were terminated in the event of a divorce.”

[6] The court ordered Randall to pay Vicki a cash payment of $68,750 plus any gains realized from non-retirement accounts and IRAs. This amount consisted of equalizing payments of $23,658.50 for non-retirement assets, $2,913 for IRAs, $1,000 for gains on a non-retirement account, $1,250 for a half-interest in a burial plot, and $40,000 for the life insurance premium reimbursement. We note the sum of these values is $68,821.50, which is $71.50 more than the court’s addition yielded. On remand, the court should resolve this discrepancy.

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What is a CMA?

This blog post was written by a real estate agent for us.

CMA stands for Comparative Market Analysis and is a report meant to reflect the market value of a property, usually a residential home. The basic concept is that you have a Subject Property (SP), and then look for comparable properties (comps) that have already sold and therefore have purchase price amounts that can be broken down by feature in order to determine what the SP might sell for as well. A CMA is not quite as in depth as an appraisal but is usually pretty close to appraisal value.  

So, how does it work?  

Let’s say I want to find the value of a SP in Salt Lake County. The primary elements I want to evaluate is location, features, market at the time of sale, and condition.  

Location can’t be changed, so it’s an obvious feature to consider. The exact same home in Magna and Cottonwood heights will have different values because of the location. When an appraiser evaluates a home, they have guidelines on the proximity of the comps to the SP. For a CMA, a realtor will try to find 3-5 comps as close to the SP’s location as possible. I start with half a mile, then move outward until I can find sufficient properties to have a good sample.

Features are things like how many bedrooms and bathrooms, what size the garage is, what size lot, how many square feet and what level of the home those square feet are on. Basement square footage is less valuable than main level square footage. The most important square footage is what’s above ground. Common features, such as what I’ve already listed, are relatively easy to work with. Unique features like pools, theater rooms, gardening sheds, and exotic landscaping are challenging to value because it’s hard to find properties that have the same feature and the feature themselves don’t necessarily add value. For instance, one buyer might think a pool is amazing as they imagine backyard barbeques and parties. Another buyer might see it as a safety hazard that’s expensive to maintain. Agents and appraisers are therefore cautious in evaluating the value of unique features, which is often frustrating to the homeowner. They may have spent $20,000 on a theater room that the appraiser gives $7,000 value to.

Market at the time of sale is one of the most important considerations because the market is always changing. Appraisers are limited to comps that have sold within ninety days unless they absolutely can’t find any. Interest rates, pandemics, how many similar homes were sold, and time of year are examples of the details that can have major effects on the price a home sells for. As soon as another home sells within the range of the CMA, all the data shifts which is why a CMA can be different from one week to the next in certain areas. The more recent a sale, the better a comp it is.

Condition is the fourth element that is considered. An appraiser will do most of their work from home because it’s data-dependent. However, the appraiser will typically go to the home and inspect the condition and take pictures. Updates mostly affect the value of a home for about five years, meaning if you put in the trendy countertop and top of the line appliances, that only “counts” for five years, then it’s generally considered out of date. Condition also applies to the level of repair in the home. Unkempt interiors or exteriors of the homes may require value adjustments depending on the condition of the SP in relation to the comps and some limitations can affect the type of loan that can be made on the property (FHA and VA). It can be a difficult to evaluate condition when all we have to go off of are pictures of the comps, but we do our best to give a fair analysis.

After we have investigated all these aspects, we line things up and start adding and subtracting from the comps so that the features line up with those of the SP. For instance, if our SP has three bedrooms and a comp has five bedrooms, we will minus $10,000 ($5,000/bedroom) from the sold price of the comp so that it’s priced as though it has the same number of bedrooms as the SP. We do the same with all the standard features—square footage, acreage, garage space, bathrooms, how much square footage per level of the house. If the SP has one more bathroom than the comp, we’ll add the price of that bathroom onto the comp property to balance it in that direction. We then have the option to add a certain dollar amount to any of the properties to reflect upgrades or features that weren’t the ones automatically considered—like that pesky pool or the fact that one of the comp properties had an entire kitchen remodel six months before it sold. What we get from this is an adjusted sales price of each comp based on the idea of that home now reflecting the same features as our SP. Those prices are averaged out to create an adjusted value of our SP.

The biggest problem with CMAs is that they can be manipulated. If I pull up six comps and eliminate the three lowest values, I might not get a fair determination of value. If I’m valuing a split-level home but compare it to ramblers, I again won’t get a fair value. Using a realtor you trust becomes an important consideration, as does having an open mind about your home’s value. Sellers are inclined to believe their home is worth more than the data would support because they love it and have emotional ties. Find a good realtor and ask good questions; those two things will set you up for your greatest potential success in determining the market value of your home.

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

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Why are child support and custody attorneys so expensive?

Because the work: 

  • requires a lot of knowledge of both the written (and unwritten*) rules that most people don’t have the time, interest, or ability to learn and apply correctly; and 
  • is miserable. 

This is why people with family law disputes either cannot or will not do the work themselves and would rather pay (even when it hurts) to have a skilled attorney (if you don’t hire a skilled attorney you’re just flushing your money and effort and odds of success down the toilet) do the work for them. 

One more factor: 

  • people who represent themselves in their own legal matters (any legal matter, including divorce and family law matters) are often treated shabbily by the courts and by the opposing party’s attorney. Even if you knew your stuff as well as an attorney, the fact that you are not attorney leaves many in the legal profession to look down their noses at you. 
    • In fairness, most people who are not lawyers who try to navigate the legal system make more than a mess of their case; they waste a lot of time and cause a lot of unnecessary trouble. 
    • Many people who represent themselves don’t do so because they are poor but because they are mentally ill. This is another reason why self-represented parties are looked upon with skepticism, suspicion, and distrust by the courts. 

*You’d be forgiven if you read the statutes and rules and then thought you know how they apply. The truth is that 1) the courts have such broad discretion to construe and apply the rules that it’s truly impossible to predict the outcome of your case based upon what the written statutes and rules provide; and 2) many courts twist and violate the statutes and rules (some inadvertently, some intentionally) in the name of “doing what’s right” or by invoking the justification of justifications: “the best interest of the child.” 

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

https://www.quora.com/Why-are-child-support-and-custody-attorneys-so-expensive/answer/Eric-Johnson-311  

 

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Is it true that family courts get paid from child support payments?

Is it true that family courts get paid from child support payments? Can someone explain it to me or link me to an article that explains it? 

The courts do not collect child support, they issue orders that and title and enable someone to collect the child support funds. So, while the courts do not get paid to collect child support, the agencies of the state that collect child support do charge a collection fee that they deduct from every payment they collect. 

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

https://www.quora.com/Is-it-true-that-family-courts-get-paid-from-child-support-payments-Can-someone-explain-it-to-me-or-link-me-to-an-article-that-explains-it/answer/Eric-Johnson-311

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What if a parent sued their child for all the money they spent raising them?

What would happen if a parent were to sue a child for every single penny they spent on raising such a child and the judge were to rule in the parent’s favor? 

You’d likely have an incompetent and/or biased judge. 

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

https://www.quora.com/What-would-happen-if-a-parent-were-to-sue-a-child-for-every-single-penny-they-spent-on-raising-such-a-child-and-the-judge-were-to-rule-in-the-parents-favor/answer/Eric-Johnson-311  

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My spouse owes me child support, but we are both almost homeless.

How do I find assistance if I own a business with a spouse that owes money in child support, yet we are unable to support ourselves and at risk of becoming homeless without the assistance we need? 

Depending upon your jurisdiction, you may have some options to protect your income from being garnished or otherwise taken from you to pay the debts and obligations of your spouse that you are not obligated to pay. It may not be an option that you exercise through the divorce or child custody court. It may mean that you have to restructure the business organization. But the good news is that you likely have a way of preventing your own income or assets from being confused with your spouse’s income and assets and a way of preventing your own income and assets from being seized to pay the debts and obligations of your spouse. This is something that most laypeople cannot do on their own or figure out how to do properly or most effectively on their own. This is a situation where you’d be jumping over dollars to pick up dimes if you try to do this on your own instead of paying an attorney to assist you. 

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

https://www.quora.com/How-do-I-find-assistance-if-I-own-a-business-with-a-spouse-that-owes-money-in-child-support-yet-we-are-unable-to-support-ourselves-and-at-risk-of-becoming-homeless-without-the-assistance-we-need/answer/Eric-Johnson-311  

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Law from a legal assistant’s point of view, week 20: Lawyers

By Quinton Lister, legal assistant

My boss at the law firm where I work (Utah Family Law, LC) has informed me more than once that, “divorce lawyers are, with few exceptions, terrible people”. I am still not sure how I feel about assigning this description to all divorce lawyers (my boss is a divorce and family lawyer, after all, and he’s not a terrible person; he didn’t pay me to say that either), but I have definitely started to see some of the things that would lead my boss to come to this conclusion in my short time as his assistant. 

For instance, the process of divorce cases could be much shorter, but for the problems the lawyers cause, needlessly. So often the case drags out over a span of years. This costs people tens of thousands of dollars. I have learned that a case rarely, if ever, must drag out so long, so what factors ensure that it does when it does? One of the factors is that divorce attorneys generally make more money the longer a case drags on. If the legal profession and court system want more respect and trust, they need to address and mitigate the incentive bad lawyers have to make a profit by doing their clients a disservice in this manner. 

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

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Would you support changing the law in each and every single U.S. state to make it crystal-clear that people have an unlimited insurable interest in their own child support obligations as well as in their family members’ child support obligations?

No. 

I do support that idea that one’s own child support entitlement should be an insurable interest in the amount of the entitlement itself (meaning that if you are the child support obligee/recipient you should have the right to purchase insurance to insure that you receive that support if the obligor/payor dies or otherwise fails to pay), but not for an unlimited amount. 

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

https://www.quora.com/Would-you-support-changing-the-law-in-each-and-every-single-US-state-to-make-it-crystal-clear-that-people-have-an-unlimited-insurable-interest-in-their-own-child-support-obligations-as-well-as-in-their-family/answer/Eric-Johnson-311  

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What questions do people ask about divorce?

The FIRST questions most frequently asked of me are:
“How much can I expect it to cost me in total to get a divorce?”
“What is your hourly rate?”
“What is your retainer amount?”
“If my spouse and I agree on all the terms of our divorce, how much will cost to get divorced on that basis?”
“Can I get the court to award me my attorney’s fees at the end of the divorce case?”
“How is child support calculated?”
“How is alimony calculated?”
“How can win custody of my children?”
“Does my spouse have a right to any of my retirement savings/pension?”
“Will my spouse having committed adultery/physical abuse/emotional abuse/other bad behavior work in my favor?”

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

https://www.quora.com/What-questions-do-people-ask-about-divorce/answer/Eric-Johnson-311?prompt_topic_bio=1

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Why is child support still garnishing my friend’s wages and her children are back in her custody?

There could be at least two possible reasons. 

1. Even though the child is living with you, if the court and/or the child support collection agency has not been made aware of the change in custody and modified the child support order, then your friend’s wages will continue to be garnished for the collection of child support. If this is the situation, your friend needs to file a motion or petition to modify the child custody and support awards.  

2. Even if the child custody and support awards may have been modified to reflect the fact that the child(ren) are now in your friend’s custody, if your friend has child support arrearages (child support “arrearages” are that amount of money that is owed and should have been paid earlier), then his/her wages can continue to be garnished to pay those arrearages. If this is the the case, one of the options your friend might have is to ask the court to offset against his/her arrearages the amount that the noncustodial parent would otherwise be paying him/her as child support until the arrearages would have otherwise paid. Then, after the arrearages are paid, child support can be paid to your friend in the normal course.   

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

https://www.quora.com/Why-is-child-support-still-garnishing-my-friend-s-wages-and-her-children-are-back-in-her-custody  

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