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Tag: law

Are couples with prenups more likely to divorce?

Research is hard to come by. Reliable research even harder. But here is what I could find in short order (how accurate it is I cannot say):

https://psycnet.apa.org/record/2017-23543-004

Maybruch, C., Weissman, S., & Pirutinsky, S. (2017). Marital outcomes and consideration of divorce among Orthodox Jews after signing a religious prenuptial agreement to facilitate future divorce. Journal of Divorce & Remarriage, 58(4), 276–287. https://doi.org/10.1080/10502556.2017.1301152

Abstract

This study examined marital satisfaction, marital adjustment, and consideration of divorce among Orthodox Jews in North America (N = 2,652). These marital outcomes were compared for individuals who signed or did not sign a religious prenuptial agreement that facilitates a woman’s future ability to receive a religious divorce from her husband. Results indicated a higher level of marital satisfaction among those who signed the religious prenuptial agreement, and no significant difference in marital adjustment or tendency to consider divorce between groups of individuals who signed or did not sign the religious prenuptial agreement. (PsycINFO Database Record (c) 2017 APA, all rights reserved)

http://www.law.harvard.edu/programs/olin_center/papers/pdf/436.pdf

https://news.harvard.edu/gazette/story/2003/10/for-many-prenups-seem-to-predict-doom/

This paper did not address the question of whether prenuptial agreements lead to divorce, but, among the other subject it touches, “discusses two major explanations for the paucity of prenuptial agreements: underestimation of the value of prenuptial agreements, especially due to false optimism that marriages will last; and a belief that discussing prenuptial agreements would signal uncertainty about marriage.”

In the event of divorce – statistically, the reality for nearly half the marriages in America – a prenuptial agreement has the potential to save the divorcing couple anguish, arguments, and thousands of dollars. It may represent an exit agreement far closer to their wishes than the court-ordered divorce. A good prenuptial agreement can even exert a positive force on a healthy marriage.

https://sccur.csuci.edu/abstract/viewabstract/fear-and-loathing-in-marriage-the-psychological-and-financial-destruction-caused-by-prenuptial-.htm

Fear and Loathing in Marriage: The Psychological and Financial Destruction Caused by Prenuptial Author: Anne Cominsky Mentor: Kurt Meyer, Professor of English, Irvine Valley College Historically, prenuptial agreements as a condition of saying “I do” were sought out by the economically stronger partner as financial protection from divorce. Currently, legal experts and financial advisors agree the general use of prenuptial agreements is on the rise. A random poll suggests that over half of the general public view prenuptial agreements favorably.

https://www.nytimes.com/roomfordebate/2013/03/21/the-power-of-the-prenup/if-you-want-a-prenup-you-dont-want-marriage

If You Want a Prenup, You Don’t Want Marriage

If you’re thinking about a prenup, or — worse yet — your intended is pushing a prenup on you, you might as well go ahead and just cancel the wedding. There’s an easier way to keep your assets and income separate: it’s called cohabitation. In most states, cohabiting partners are free to walk away from their relationship with their income and assets intact, all without the hassle and expense of a divorce. There’s an easier way to keep your assets and income separate: it’s called cohabitation. But if you’re truly in love, and you wish to share your life, your body, your children and your checkbook with your beloved “till death do you part,” marriage is generally the ticket. Marriage is about establishing a common life together, about putting someone else ahead of yourself, and sharing the things that mean the most to you, including your money. And, paradoxically, if you take this other-centered approach to marriage, you’re not only less likely to divorce, but also to enjoy a happier relationship. My research suggests that couples who embrace a generous orientation toward their marriage, as well as those who take a dim view of divorce, are significantly more likely to be happy in their marriages. A National Center for Family and Marriage Research study finds that couples who share joint bank accounts are less likely to get divorced. In fact, married couples who do not pool their income are 145 percent more likely to end up in divorce court, compared to couples who share a bank account. So, the kind of partners who wish to hold something back from their spouse in a marriage — emotionally, practically and financially — and to look out for No. 1 instead are more likely to end up unhappy and divorced. If that is your aim in marrying, go ahead and get a prenup. But if you wish to experience the best that marriage has to offer, find a partner who is willing to give everything to you, and do the same for them. Your odds of finding wedded bliss will be higher than your peers with prenups. Join Opinion on Facebook and follow updates on twitter.com/roomfordebate .

https://www.divorcenet.com/states/nationwide/five_realities_about_prenuptial_agreements

5 Prenuptial Pitfalls to Consider — Having One May be Bad for Your Marriage | DivorceNet

For what it’s worth, now that you have some research data: in the course of my cursory research I noticed a distinct bias in the articles that claim that prenuptial and postnuptial agreements do not encourage divorce/discourage marriage. I believe that any intellectually honest person would conclude that for the vast majority of young, unmarried people contemplating marriage for the first time and who aren’t celebrities, or rich or in some other exceptional category contemplating marriage, a prenuptial agreement raises red flags and tends to raise doubts as to the other party’s commitment to marriage.

Pro-prenuptial agreement articles gloss over the red flags. They claim prenuptial agreements “”clear the air, “help break the ice about discussing finances”, and “reduce acrimonious litigation in the event of divorce” rather transparently strain credulity to make those arguments stick.

(48) Eric Johnson’s answer to Are couples with prenups more likely to divorce? – Quora

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

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The Problem with Private Guardians ad Litem. Part 2 of 3

As any attorney can do with any client, a PGAL clearly has the right to argue on a child client’s behalf, and the Utah Code makes clear that a PGAL can express a child client’s “intentions and desires”. (See Utah Code Section 78A-2-705(13)(d))

When a PGAL tells a court, “I’ve spoken to my client, and based upon those discussions, I can tell you that his/her intentions and desires are . . .” is hearsay or, at the very least, inferential hearsay. It can’t be anything else. Such a hearsay declarant is at least subject to cross examination (URE 806).

There is a pervasive belief among Utah family law attorneys and judicial officers that a child represented by a PGAL cannot even be cross-examined. There is no legal authority for this. Indeed, all legal authority is to the contrary.

Children testify in Utah juvenile court proceedings, and when they do, they often do under various circumstances (regarding child custody and parent-time) that are substantively indistinguishable from testifying in a child custody and parent-time in a divorce or district court child custody case. When district courts try to make a distinction between testifying in juvenile court and barring testimony in district court, they fail. They must. It is a distinction without difference.

I really do not understand why everyone frames (or tries to frame) asking questions of children who are the subject of a child custody and/or parent-time dispute as inherently harmful to children. One can ask certain questions that harm, or elicit answers that harm, but all forms of questioning are not innately harmful to children. Moreover, there is a level of harm that is, frankly, justified when the value of the testimonial evidence elicited is greater than the harm caused or that may be caused (it’s why we jail witnesses who are afraid to testify against the mob, yet put them in witness protection). Where there’s a will, there’s a way.

Unless they are very young, children are not so ignorant as to have no idea what is happening in a child custody dispute case. They know that if there is a dispute over custody that one parent will be unhappy. The children aren’t surprised when one parent or both parents try to lobby to support their candidacy for “best parent” or “custodial parent”. They aren’t surprised if a court wants to know what the children have experienced, how children feel, and what the children want on the subject of the child custody and parent-time awards.

There are clearly ways to obtain valuable evidence that children and only children are uniquely able to provide (in the form of their about their experiences, observations, feelings, opinions, preferences, and desires on the subject without it harming or unduly harming them.

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

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A Changed Perspective on Justice as a New Legal Assistant By Braxton Mounteer

After working in civil law for a short time (specifically, in divorce and family law), I think that many people have the wrong idea about justice and the court system. When someone is asked to explain justice, they would say that it is punishing those who have done wrong and the exoneration of the innocent. It is a far more complicated, difficult (and often disappointing) process than I’d imagined.

And in divorce and family law, justice is (or at least should be) aided through the application of equity. Unlike criminal law, divorce is not about whether one violated the law, it’s a matter of ensuring that the spouses and children are treated fairly in the process of dissolving a marriage and making single people of those who were married. It’s the process of trying to find an equitable way to disentangle themselves from each other.

The principles behind the application equity are expressed in what are known as the “maxims of equity”. There are 20 to 22 maxims, depending upon the source you may consult. Not every maxim of equity applies in a divorce case. Those that apply in divorce are:

Equity looks on that as done which ought to have been done

Equity will not suffer a wrong to be without a remedy

Equity will not allow a wrongdoer to profit by a wrong

Equity does not punish

Equity is a sort of equality

One who seeks equity must do equity

Delay defeats Equity, or Equity aids the vigilant not the indolent

Equity imputes an intention to fulfil an obligation

He who comes into equity must come with clean hands

Equity delights to do justice and not by halves

Equity follows the laws

Equity will not assist a volunteer

Equity will not complete an imperfect gift

Where equities are equal, the law will prevail

Equity will not allow a statute to be used as a cloak for fraud

Between equal equities the first in order of time shall prevail

A complete list of the maxims of equity from the Wikipedia article on the subject (with a detailed, yet still concise, explanation of the maxims of equity can be found on Wikipedia here: Maxims of equity – Wikipedia.

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

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First Impressions of Being a Legal Assistant as a Writer By Braxton Mounteer

The first thing you should know is that I am a writer. I have authored some short stories and some other things you haven’t heard of. I have been a Legal Assistant for two days, and I had some expectations when I started. Honestly, my expectations came from courtroom dramas and fiction novels. I was expecting Atticus Finch and the team from Suits. I was expecting other lawyers to be as bloodthirsty as Vlad Tepes.
What I have found is that they exist not as an archetype, but as people. Each one is just a person. Whether they are fighting against the rightfully earned reputation of their profession or living in the shadow of it, they are just people. Some of them work and care for the Law, some for their clients, and some for themselves.
The shows that we watch and books that we read about lawyers and the legal profession prop up personalities to make them larger than life. That is what makes them good stories. However, the best stories are based on a kernel of truth. I endeavor to learn more about the profession and dispel the illusions and mystification surrounding the profession.
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What Can I Legally Do if My Child’s Mother Refuses to Use Car Seat When Traveling With Our Little Child?

What can I legally do if my child’s mother picks up our child in an Uber without a car seat? She is 5 years old, about 50 lbs. She is also the custodial parent with full custody rights, so she feels she can do anything she wants. Can I call the cops?

I’m old enough to remember when it was not illegal to wear a seatbelt. I’m old enough to remember when it was not illegal to permit a child to ride in a car without a seatbelt. I remember when there were no laws that children under a certain weight or height must ride in car seats when riding in cars. Most jurisdictions now have laws that require children of a certain age, weight, or height be strapped into a car seat when riding in a car.

So, the first thing you will need to do is find out whether it is illegal for your ex-wife to have your five-year-old, 50 pound child ride in a car without a car seat. You’ve mentioned that your ex-wife will often have your child picked up by Uber (a ridesharing service), and so you will want to ensure that even if there are laws that require a child to ride in a car seat when writing in a car, there are no exceptions for ridesharing services, taxicabs, buses, etc.

If, after conducting your research, you learn that it is illegal for your ex-wife to have your child ride in a car or when using a ridesharing service without having the child strapped into a car seat, then you would be well within your rights to report this to the police. just because you could do this, however, does not mean that you should, at least without first notifying your ex-wife that what she is doing is illegal and places your child in danger, and that if she refuses to comply with the law you will then report her to the police and perhaps even take the matter up with the court to get an order that requires her to secure the child in a car seat when traveling by car under circumstances when the law requires a car seat be utilized.

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

https://www.quora.com/What-can-I-legally-do-if-my-childs-mother-picks-up-our-child-in-an-Uber-without-a-carseat-She-is-5-years-old-about-50-lbs-She-is-also-the-custodial-parent-with-full-custody-rights-so-she-feels-she-can-do-anything/answer/Eric-Johnson-311

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Should I file for a no-fault divorce or for an uncontested divorce? 

My spouse and I have no children together and own no property together. Should I file for a no-fault divorce or for an uncontested divorce? 

It’s not a question of choosing between “no-fault divorce” and “uncontested divorce”. These two terms are not opposites. 

No-fault divorce means that you don’t have to accuse your spouse of committing some kind of marital fault before you can seek a divorce from your spouse. The reason no-fault divorce is called no-fault divorce is because prior to the creation of no-fault divorce laws, you could not get divorced unless you are able to prove your spouse committed some kind of marital fault during the marriage. And what does “marital fault” mean? Marital fault includes things like adultery, desertion and abandonment, physical abuse, extreme mental and emotional cruelty, habitual drunkenness or impairment from the abuse of other substances, conviction of a serious crime or incarceration, failure to provide one spouse with the necessities of life, and insanity. 

Back in the late 60s, various governments in the United States realized that there are many miserable marriages that could and should end in divorce but that did not qualify under any of the fault bases for divorce. That is what led to the creation of no-fault divorce, by which one can obtain a divorce simply by asserting that there are irreconcilable differences between spouses that render the marriage irretrievably broken prevent the marriage from continuing. 

An uncontested divorce is a divorce in which all of the issues in in the divorce action, including child custody and visitation (parent time), division of marital assets and responsibility for marital debts, etc. are resolved by the agreement of the parties through settlement as opposed to litigating those issues and having the matter decided by a judge after a trial. 

So if you and your spouse both agree that you don’t want to stay married and believe that you can agree to resolve all of the issues in your divorce without needing to fight with each other and litigate at trial, you can drop a settlement agreement and base your divorce upon the terms of your settlement agreement, without having to go to trial and have the judge determine the outcome. 

No-fault divorces can be uncontested divorces. That stated, not all no-fault divorces are uncontested, as one can file for divorce on a no-fault basis, but may still find himself or herself arguing with his or her spouse over various issues that will end up decided by a judge, if the parties cannot settle those issues by agreement between themselves. 

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

https://www.quora.com/Me-and-my-husband-we-have-no-kids-together-nor-a-property-that-we-own-so-I-was-wonder-if-I-should-filing-no-fault-divorce-or-uncontested-divorce-We-been-separating-for-2-year-and-haven-t-contact-each-other-since/answer/Eric-Johnson-311  

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Should I intentionally botch my hair follicle test?

Would it be better to botch my hair follicle test so it reads nothing, or allow the judge and the world to see what I’ve been doing the last 6 months? 

First, learn the truth about hair follicle drug test accuracy. 

Second, reduced to its essence your question is, “Should I lie/deceive?” No, you should not. 

Third, when people try to lie and deceive to gain an advantage, those who are caught in their lies and deception cannot be trusted anymore, even when they tell the truth. 

See “The Boy Who Cried ‘Wolf’”https://etc.usf.edu/lit2go/35/aesops-fables/375/the-boy-who-cried-wolf/   

I know you don’t want to suffer for your wrongdoing. Few do. But it is part of the process of being accountable, responsible, and changing for the better. 

I know you fear (and with good reason) the punishment being excessive and unfair. But that doesn’t justify engaging in more wrongdoing. Two wrongs don’t make a right. 

If you are serious about being a responsible adult and changing for the better, you may, after conferring with a good (meaning not only a skilled but a decent) lawyer want to tell the court how you wrestled with this problem to show the court that you understand the difference between truth and lies, right and wrong, paying the price for one’s wrongs, and that you want no more and no less than for the punishment to fit the crime. 

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

https://www.quora.com/Would-it-be-better-to-botch-my-hair-follicle-test-so-it-reads-nothing-or-allow-the-judge-and-the-world-to-see-what-Ive-been-doing-the-last-6-months/answer/Eric-Johnson-311    

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What are some ways to make the divorce rate drop?

First, some marriages need to end in divorce. That is why divorce exists. But divorce is not always the answer when one or both spouses is/are miserable. Far too many divorces are not only unnecessary, but take things from bad to worse. For those marriages that need not end in divorce, teach and exemplify: 

  • belief in God; 
  • trust—humbly—in God; 
  • that God’s plan for His children includes marriage and family (so He will help you when you and your spouse turn to Him for guidance and strength to overcome); 
  • love for and service to God;
    • Loving and serving God leads us to loving and serving others (especially your spouse and children). Loving and serving others leads us to love and to serve God. You cannot sustainably have one without the other; 
    • Go to church together and with your children. Associate with other families and learn from and support each other. It’s soothing and encouraging to see you’re not alone in the struggles couples and families face. It’s good to have others in your community to whom you can turn for support in good times and bad. 
  • mercy and forgiveness for human faults and frailties; 
    • Don’t demand perfection from your spouse or yourself—that’s impossible—but strive to be your best. Don’t exploit your spouse. 
    • This does not mean that wrongs go unpunished and unrestituted, but it does mean that “the punishment fit the crime,” as the saying goes; 
    • This does not mean that punishment be “curative”; See C.S. Lewis’s “The Humanitarian Theory of Punishment 
  • specifically in marriage and family: 
    • Marriage and family is a major purpose of our lives—it’s part of God’s plan for each of us; 
    • Marry because you want “us” to be happy, supported, and fulfilled together. If you marry merely for “what’s in it for me,” you’re not ready or worthy to marry; 
      • Being equals in marriage does not mean that you and your spouse are the same in every respect. Accept it. Adapt to it. Celebrate it. Don’t forget it. 
    • Be honest in your dealings with your spouse and worthy of trust. 
    • Accept that certain aspects of a good married life and of single life are incompatible, so those aspects of single life must be left behind and replaced to serve your role as a spouse and parent; 
    • Accept the bitter aspects of married and family life with the sweet; 
      • “Anyone who imagines that bliss is normal is going to waste a lot of time running around shouting that he’s been robbed. The fact is that most putts don’t drop, most beef is tough, most children grow up to just be people, most successful marriages require a high degree of mutual toleration, most jobs are more often dull than otherwise. Life is like an old time rail journey…delays…sidetracks, smoke, dust, cinders and jolts, interspersed only occasionally by beautiful vistas and thrilling burst of speed.” — Gordon B. Hinckley 
    • Learn to make the compromises in your habits and lifestyle that marriage requires. 
      • Don’t die on the hill of whose responsibility it is to take out the trash, whether “breakfast for dinner” is untenable, etc. Go to movies and restaurants you don’t like sometimes, if going is something your spouse enjoys (he/she needs to make the same accommodations for you too). 
      • It will seem as though you are “making sacrifices” when in reality you are continuing to grow and mature as a person. You are developing dormant talents and new skills that a successful marriage needs to thrive. 

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

https://www.quora.com/What-are-some-ways-to-make-the-divorce-rate-drop/answer/Eric-Johnson-311 

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Do attorneys ever have to represent relatives?

Do attorneys ever have to represent relatives or is that a conflict of interest?

I will give my personal opinion (as a lawyer, but not as a lawyer giving anyone any particular legal advice) as it applies in the jurisdiction where I practice divorce and family law (Utah).  

There is no inherent conflict of interest in an attorney representing a relative simply by virtue of the client being a relative. There is no inherent conflict of interest in an attorney representing a relative against another relative either simply by virtue of the client being a relative.  

If you learn that the opposing party’s attorney is a relative of that party, that is not a conflict of interest that would disqualify that attorney from representing that party.   

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

https://www.quora.com/Do-attorneys-ever-have-to-represent-relatives-or-is-that-a-conflict-of-interest/answer/Eric-Johnson-311  

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Is child marriage legal in the United States?

Of a sort, and depending upon the particular state, yes.  

In some places children (minor children, those who are by law deemed incapable of consenting to marry) can marry with their parents’ permission, under certain conditions.  

For example, in Utah (where I practice divorce and family law), the Utah Code provides: 

30-1-9. Marriage by minors — Consent of parent or guardian — Juvenile court authorization. 

30-1-9.1. Parental consent to prohibited marriage of minor — Penalty. 

It used to be that minor girls as young as 14 could marry in many U.S. states (including Utah), with parental permission. That is no longer true in Utah; the minimum age is now 16. 

According to this webpage, Marriage Age by State 2022, the state with the lowest minimum marriage age with parental consent in the U.S.A. is Massachusetts, which allows a child of 12 years of age to marry. New Hampshire comes in second at 13 years of age, and Hawaii and Missouri are tied at 15 years of age. Every other state sets the minimum at 16 years of age. 

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

https://www.quora.com/Why-is-child-marriage-still-legal-in-the-U-S/answer/Eric-Johnson-311  

 

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Is it possible to get court transcripts for custody hearings?

Every jurisdiction is different regarding which court hearings are open to the public and whether recordings of their proceedings are available to the public or even to the parties’ themselves. 

Every jurisdiction is different regarding how court proceedings are recorded too. 

Not every jurisdiction makes a written transcript of court proceedings. 

Most jurisdictions make audio or video recordings of court proceedings at a certain level, and divorce and family law proceedings are on that level. 

In the jurisdiction where I practice divorce and family law (Utah), the court makes its own audio recordings of divorce another family law court proceedings. These proceedings are open to the court, and thus the audio records of the court proceedings are public record, meaning that they are available to the public. Utah courts do not, at the trial court level, make written transcriptions of court proceedings. 

If you wanted to obtain a transcript of Utah family law court proceedings, you would need to take the audio recording of those proceedings and have them transcribed. If you wanted to use the transcription for appeals purposes, you would have to have the record transcribed by a stenographer approved by the court. It might also be possible to make your own transcript and to utilize that, if the opposing party agreed that your transcript was a true and complete and accurate transcription of the proceedings. 

Generally speaking, if all you want is a written transcription of the recordings of court proceedings for your own personal use, there’s nothing to stop you from doing so. And with advances in transcription technology, the cost of transcription have plummeted from what they were just 10 or 20 years ago. There are online transcription services such as http://Rev.com or Otter.ai – Voice Meeting Notes & Real-time Transcription that don’t do a perfect job of transcription, but do a very good job of transcribing for very little money. These types of services make obtaining transcriptions of court proceedings easier and less expensive than ever before. 

Transcripts can be very useful in establishing certain facts that may have otherwise escaped the court’s attention had they not been recorded and transcribed. Judges hate listening to audio recordings, but are much more receptive to reading a transcript of the very same recording because it’s much easier to isolate those portions of the recording in the transcript that are relevant to the issues before the court.  

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

https://www.quora.com/Is-it-possible-to-get-court-transcripts-for-custody-hearings/answer/Eric-Johnson-311  

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What’s it called when a judge gives a party an illegal advantage?

I believe one term you may be thinking of is “prejudice.” The word “prejudice” has a particular meaning in the law. According to Black’s Law Dictionary (the bible of legal definitions): 

2. A preconceived judgment or opinion formed with
little or no factual basis; a strong and unreasonable dislike or distrust. —
Also termed preconception. — prejudice, vb. 

Prejudice literally means “pre judge”. According to www.etymonline.com: 

prejudice (n.)

c. 1300, “despite, contempt,” from Old French prejudice ”a prejudice, prejudgment; damage” (13c.) and directly from Medieval Latin prejudicium ”injustice,” from Latin praeiudicium ”prior judgment, judicial examination before trial; damage, harm,” from prae- ”before” (see pre-) + iudicium ”judgment,” from iudex (genitive iudicis) “a judge” (see judge (n.)).

Meaning “injury, physical harm” is mid-14c., as is the legal sense of “detriment or damage caused by the violation of a legal right.” Meaning “preconceived opinion” (especially but not necessarily unfavorable) is from late 14c. in English; now usually “decision formed without due examination of the facts or arguments necessary to a just and impartial decision.” To terminate with extreme prejudice ”kill” is by 1972, said to be CIA jargon. 

prejudice (v.) 

mid-15c., prejudicen, “to injure or be detrimental to,” from prejudice (n.) and from Old French prejudiciier. The meaning “to affect or fill with prejudice, create a prejudice (against)” is from c. 1600. Related: Prejudiced; prejudicing. 

Entries linking to prejudice 

pre- 

word-forming element meaning “before,” from Old French pre- and Medieval Latin pre-, both from Latin prae (adverb and preposition) “before in time or place,” from PIE *peri- (source also of Oscan prai, Umbrian pre, Sanskrit pare ”thereupon,” Greek parai ”at,” Gaulish are- ”at, before,” Lithuanian prie ”at,” Old Church Slavonic pri ”at,” Gothic faura, Old English fore ”before”), extended form of root *per- (1) “forward,” hence “beyond, in front of, before.” 

The Latin word was active in forming verbs. Also see prae-. Sometimes in Middle English muddled with words in pro- or per-. 

judge (n.) 

mid-14c., “public officer appointed to administer the law” (early 13c. as a surname), also judge-man; from Old French juge, from Latin iudex ”one who declares the law” (source also of Spanish juez, Italian giudice), a compound of ius ”right, law” (see just (adj.)) + root of dicere ”to say” (from PIE root *deik- ”to show,” also “pronounce solemnly”).

Extended from late 14c. to persons to decide any sort of contest; from 1550s as “one qualified to pronounce opinion.” In Jewish history, it refers to a war leader vested with temporary power (as in Book of Judges), from Latin iudex being used to translate Hebrew shophet. 

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

https://www.quora.com/Whats-it-called-when-a-judge-gives-a-party-an-illegal-advantage/answer/Eric-Johnson-311

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Would the divorce rate drop if the parties had to see a psychologist first?

What do you think would be the rate of divorce in marriages if psychologists were to be consulted in court by couples before proceeding to see the lawyer for divorce?

Your intentions are good, your proposal won’t work. 

Short answer: forcing people to consult a psychologist as a prerequisite to obtaining a divorce would A) likely cause no appreciable reduction in the divorce rate and B) would surely not justify the costs associated with it. 

You appear to base your idea on several false assumptions: 

  • First, that professionals are infallible. They are not. That includes psychologists. Merely consulting a psychologist does not mean you will get competent care or advice from any and all psychologists. And the purpose of psychologists isn’t to talk people in or out of anything anyway, so forcing people to speak with a psychologist with the goal of reducing divorce likely would present some ethical conflicts that would cause many psychologists to balk. 
  • Second, that nary a professional (including psychologists) is motivated by self-interest. Plenty are. Some psychologists know that if they advocate for more psychologist involvement in the court systems, then that means more work for psychologists through the court systems. And so they do and say what they need to do and say to keep the work flowing, regardless of whether they feel that what they do and say is what is needed or warranted. 
  • Third, that most divorces are due to mental illness or other mental or emotional pathologies or disorders. While many divorces can be traced to mental and/or emotional problems in one or both spouses, not every divorce can be. Thus, requiring everyone who files for divorce to consult a psychologist would be a waste of time, money, and resources. 

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

https://www.quora.com/What-do-you-think-would-be-the-rate-of-divorce-in-marriages-if-psychologists-were-to-be-consulted-in-court-by-couples-before-proceeding-to-see-the-lawyer-for-divorce/answer/Eric-Johnson-311 

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Can you go back to your ex-spouse after a divorce?

Yes, there is no law (I know of in any jurisdiction of which I am aware, but check in your jurisdiction to be sure) against a divorced couple resuming a romantic relationship or from remarrying. 

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

https://www.quora.com/Can-you-go-back-to-your-ex-spouse-after-a-divorce/answer/Eric-Johnson-311  

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Law from a legal assistant’s point of view, week 52: One year

By Quinton Lister, legal assistant  

Well, I made it. 

There was no real worry that I could not do it, but being a legal assistant is not an easy job and there were days when I doubted myself, as I assume all people do at one point in time or another in any difficult, challenging job.  

I have learned so much as a legal assistant to a divorce attorney. The sheer amount of things I have discovered just by virtue of showing up for work each day astounds me. I still feel like a complete neophyte (yes, I still remember that word and what it means), but I also know that I am not that complete of a neophyte anymore despite how I feel. 

For all those who are wondering, hiring a good attorney is worth it. The legal jungle is thick, dark, and treacherous. Frankly, you cannot afford not to hire a good attorney. I have learned that lesson in my time as a legal assistant here, and it is what has convinced and inspired me to study the law myself.  

Thanks for reading for a year, and we will write again soon. 

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

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How does someone take custody of a child after winning custody?

When someone wins custody of a child, does the child come to the courthouse to be taken by whoever is awarded custody or do they go to the home of the child to take them? How does this usually go? 

Thank you for asking this question. It is a basic question that many parents have and yet very few are willing to ask for fear of looking ignorant. Questions and asked our questions unanswered, and you’ve asked a very basic but very important question that deserves to be answered clearly and fully. 

  1. A court can issue an order that the parties meet at the courthouse with the child and physically transfer custody of the child from one party to the next at the courthouse.
  2. Rarely is it necessary for a court to issue an order that the parties meet at the courthouse with the child and physically transfer custody of the child from one party to the next. For example, if there is a dispute between two opposing parties (Party A vs. Party B) over custody of a child, and if the child is already in the custody of Party A when the court awards custody, then there will be no need for an order directing one party to turn the child over to the other party. 
  3. In most child custody cases long before the child custody award is made, a temporary order (or order pendente lite) has been issued by the court awarding custody to one of the parties. After all, the child needs to be cared for and have a place to live while the litigation is pending, which is why these temporary custody orders are made. So if the party to whom temporary custody was awarded wins permanent custody, there will be no need for any kind of transfer of custody of the child from one party to the other.

But if the party who was awarded temporary custody of the child is not awarded permanent custody of the child after the trial, usually what happens is the losing party will comply with the court’s order to turn custody over of the child to the prevailing party. Fortunately, in most custody disputes, the losing party is gracious in defeat and — even though perhaps heartbroken or bitterly angry over the outcome — will comply voluntarily with the court orders and in turn the child over to the prevailing party without incident. The way that works is the court may (and often will): 

  • order the losing party (in whose physical custody of the child was before trial) to have the child ready for the prevailing party to pick up the child at the losing party’s house at a set date and time.  
  • order the losing party to bring the child to the prevailing party’s house at a set date and time. 
  • order that the child be brought to a third party’s home (a relative or mutual family friend) or workplace (often a social worker) to spare the losing party from breaking down in grief or anger in front of the child or to help generally ease the transition from the losing party to the prevailing party. 

If the court is concerned that a verbal and/or physical altercation might arise if custody is exchanged at the losing party’s house or if the losing party were ordered to bring the child to the prevailing party’s house, the court may order the parties to exchange custody of the child at a police station, so that the police can keep the peace and make an arrest if either or both parties become unruly. 

If the court is concerned that the losing party might try to abscond with the child before the prevailing party can take custody of the child, then the court may order the police or the deputy sheriff to accompany the losing party to the losing party’s home to ensure that the child is not kidnapped or concealed or absconded with before the prevailing party can take custody of the child. 

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

https://www.quora.com/When-someone-wins-custody-of-a-child-does-the-child-come-to-the-courthouse-to-be-taken-by-whoever-is-awarded-custody-or-do-they-go-to-the-home-of-the-child-to-take-them-How-does-this-usually-go/answer/Eric-Johnson-311

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Law from a legal assistant’s point of view, week 46

Law from a legal assistant’s point of view, week 46: Simplify, but do so Elegantly 

By Quinton Lister, legal assistant  

As a legal assistant to a divorce attorney, I find that one of the most difficult things to do in the law is to take a legal concept and simplify it without dumbing it down. A good lawyer has the ability to simplify, but can do so in an elegant way.  

The best way to help a client, is to help them understand enough about their case so that they feel empowered. That doesn’t mean that the client will understand everything about their case (any divorce case can get complicated quickly), but if a client can feel empowered and that they can do something then that will make the attorney’s work more effective. Legalese is a real phenomenon and any uninitiated individual would feel overwhelmed by too much lawyer speak. However, if you simplify legal concepts too much, then that same uninitiated individual can be misled because they do not understand enough about their situation.  

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

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What should I tell my lawyer who says that a motion to dismiss is not real?

What should I say to my lawyer who told me that a motion to dismiss isn’t really a thing so we cannot file one?

It may be that a motion to dismiss is in fact not possible (not permitted by the rules under the circumstances of your case) or not wise under the circumstances (possible, but a bad idea), even though you believe otherwise. a lot of people are familiar with certain legal jargon without knowing what it means, and they often throw it around ignorantly and inaccurately. 

I can’t tell you how many times clients have come to me believing they have rights to do this or rights not to do that, only to find out that their understanding was erroneous. 

A few examples: thinking you have a right to certain documents (or every document known to man) under the “Freedom of Information Act”, believing you don’t have to answer provide requested documents or answer certain questions in a deposition or at trial if they claim that the information sought from them is “private” or “confidential,” believing that because they know the truth/right thing to do, the court must agree with them. 

If you have an idea and your lawyer shoots it down without you understanding why, don’t be afraid to ask your lawyer to explain it to you. If your lawyer can’t do that, your idea may not be so bad (but instead your lawyer may not be up to the task). 

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

https://www.quora.com/What-should-I-say-to-my-lawyer-who-told-me-that-a-motion-to-dismiss-isnt-really-a-thing-so-we-cannot-file-one/answer/Eric-Johnson-311 

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Law from a legal assistant’s point of view, week 44: Mountains

By Quinton Lister, legal assistant 

One prominent geographical feature of Utah (where I am a legal assistant for a divorce attorney) is the mountains that surround the cities and towns of the state. I grew up in Colorado where there are beautiful mountain ranges as well, and among the many natural beauties of Utah and Colorado, the mountains are some of the greatest.  

I have gone on several hikes through the mountains here in Utah and Colorado and it always amazes me how tired I get when going on these hikes. Mountain trails are almost always more steep and rugged than we believe or expect, often resulting in inexperienced hikers finding themselves surprised at how tired—sometimes even sick—they become. In extreme cases, people die when they are not mindful of the elevation, the pitch, the altitude, and their effects.  

I have found that in the legal system, we also should be “mindful of the territory” so to speak. There are so many different nuances and tricky “elevation changes” in the law that one must know what they are doing to navigate it successfully. Much like an experienced guide on a mountain trail, a good lawyer can help protect you from hurting yourself, or worse still, “perishing” in any way on your journey. If you are in legal trouble, be smart and consult legal counsel, and do your homework. It will save you from mental, emotional, and financial exhaustion in the long run (and in the short term for that matter). 

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

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