There is no rationally or morally justified reason for making divorce illegal in any and all circumstances.
That stated, most would agree that while it was instituted with the best of intentions, “no-fault divorce” had unintended adverse consequences by making a divorce too easy to obtain, leading many marriages that might otherwise have weathered a difficult period in the relationship and survived.
If I can’t find an attorney, can it honestly be said I got a fair trial?
If a person seeks legal representation in a court, and every attorney they tries to hire refuses to represent them, can he receive a “fair trial”?
That depends upon how you define a “fair trial”. Some people mistakenly believe that in the United States every litigant is guaranteed representation by an attorney in any lawsuit. This is not true. Defendants in criminal cases that involve the risk of substantial jail time are entitled to appointment of counsel, free of charge to the defendant, if the defendant so desires.
In some jurisdictions, a parent is entitled to appointed counsel if the state petitions to terminate that parents parental rights.
There is no right to appointed counsel in civil cases. so there is no right to appointed counsel in divorce actions or personal injury actions or other cases that do not involve serious, jailable criminal charges. So, if you were to claim you could not find any lawyer to represent me and to help me in my civil suit, you could not claim that your rights were somehow violated. It could thus be said that you received a fair trial, even if you were unable to find a lawyer to represent you at trial.
But if the case was a complex one, and one where a knowledge of the laws and/or regulations, as well as the procedural rules of court, makes the difference between winning or losing, having no attorney to represent you, that isn’t a fair fight. unfair, but not illegal. You have no legal recourse in those circumstances.
I have met people who have claimed that they cannot find an attorney to represent them in a particular civil action. More often than not, the reasons why are fairly clear: the person seeking representation can’t afford to pay the attorney and/or the person does not have a winning legal argument (either because that person is clearly in the wrong or because that person doesn’t have enough evidence to win or to win in the manner that person desires).
Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?
Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?
Practically speaking (and in my experience), yes and no.
I’ll start with the “no” part of my answer because it’s short. I say “no” because although there are rules against frivolous, bad-faith litigation (such as litigation based on lies), these rules are shamefully under-enforced. So even if you can make a clear case for an opposing party engaging in frivolous, bad-faith litigation, in my experience courts rarely punish such behavior. It’s one of the main reasons people lose faith in the legal system when they find themselves subject to the system.
The best way to protect yourself from having a court believe the opposing party’s lies is to prove them false by objective, independently verifiable evidence that cannot be denied. So, document your words and deeds six ways from Sunday. If it’s not a close call, the opposing side’s efforts to cheat won’t make any difference.
And here’s my “yes” part of the answer: Most jurisdictions, including the jurisdiction in which I practice law (Utah), have a rule or rules that is intended to prevent frivolous litigation. One such rule in Utah is the Utah Rules of Civil Procedure rule 11 (which is almost identical to the Federal Rules of Civil Procedure rule 11). Utah’s rule 11 provides:
(b) Representations to court. By presenting a pleading, written motion, or other paper to the court (whether by signing, filing, submitting, or advocating), an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,
(b)(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(b)(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(b)(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(b)(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that paragraph (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated paragraph (b) or are responsible for the violation.
There are also laws against making frivolous and bad-faith claims. Utah’s law is:
(1) In civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith, except under Subsection (2).
(2) The court, in its discretion, may award no fees or limited fees against a party under Subsection (1), but only if the court:
(a) finds the party has filed an affidavit of impecuniosity in the action before the court; or
(b) the court enters in the record the reason for not awarding fees under the provisions of Subsection (1).
Married Native Americans can and do get divorces, as do Native Americans married to non Native Americans.
The laws governing divorce of Native Americans (American Indians) are different than those governing non-Indians. The laws governing divorce of Indians apply if 1) both members of the Indian couple lives in Indian country and 2) they wish to seek a divorce under Indian country law, rather than under the of the state in which a particular Indian country is located.
I am no expert on Indian law, but it appears that it is possible for tribal courts to obtain jurisdiction over a divorce where one of the spouses is an Indian and the other is not. How that could be done or under what circumstances I do not know.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In some jurisdictions, interference with or noncompliance with child custody orders issued by a court are not enforceable by police officers or sheriff’s deputies because there is no statute or statutes that authorize and empower the police to intervene. This is why law enforcement officers do not intervene in such jurisdictions. The only way that law enforcement officers can intervene in such jurisdictions is for a court to authorize and direct law enforcement officers to enforce child custody and parent time orders, and to do so by force if necessary. This is why, when a parent asking for the police to help with enforcement of a child custody or parent time order, will often receive this kind of response from the officer or officers called: “This is a civil matter. We do not have the authority to intervene to enforce your court orders.”
In other jurisdictions, such as Utah, where I practice divorce and family law, laws have been passed and are now on the books making interference with child custody and/or parent time orders a violation of statutory law. They are commonly referred to as “custodial interference laws”.
Do law enforcement officers in such jurisdictions enforce such statutes? Rarely.
Why?
Because being a law enforcement officer is a thankless job. Consequently, with rare exception, law enforcement officers hate enforcing custodial interference laws. Law enforcement officers generally dislike handling disputes between parents over enforcement of custody and parent time orders because it wastes their time and resources and interferes with their ability to prevent and solve serious crimes, such as aggravated assault, rape, burglary, etc. Some officers get lazy sometimes A) don’t enforce laws they consider not worth enforcing and/or B) don’t want to hassle with all the paperwork associated with responding to, reporting on, and enforcing custodial interference laws.
Instead, they will lie to your face and give you the “This is a civil matter. We do not have the authority to intervene to enforce your court orders” line in the hope that you will believe them when they tell you they cannot help you and thus stop asking them for help. [NOTE here: if you are someone who does not deal with law enforcement officers routinely, you would be pardoned for believing law enforcement officers do not lie and lie a lot. So fool you once, shame on them, fool you twice, shame on you. I know this may shock and sadden some readers—I felt that way when I discovered it and could no longer deny it.] Officers who don’t want to enforce custodial interference laws deal with parents who know of the laws on the books and aren’t fooled by the “this is a civil matter” dodge will simply threaten to arrest those parents who won’t back down for “disorderly conduct” and/or “disturbing the peace” (two favorite go to intimidation tactics that law enforcement officers frequently utilize to get people off their backs). Why? Because they can get away with it. More often than not, if you were to complain about law enforcement officers failing and refusing to enforce custodial interference laws, their superiors will nod their heads, thank you for “bringing this matter to my attention,” promise that action will be taken, wait for you to hang up the phone or leave the office, and then never give the matter a second thought.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Can I protect marital assets from my spouse by “temporarily gifting” assets to somebody else until after the divorce is final?
Can you? Like is it doable? Sure, you can do it. And many divorcing people do this very thing successfully (meaning they get away with it).
But is it legal? No.
Translated, your question really means: “Can I hide or hog marital assets from my spouse by falsely claiming to have “gifted” the assets to someone without ever intending to give the assets away but in fact intending to get them back after falsely claiming to have gifted them away?”
As you might imagine, this has been tried before. Courts and legislatures have noticed this kind of thing is tried all the time, which is why it’s illegal.
There’s even a term for it: fraudulent transfer. A fraudulent transfer in divorce occurs when one spouse someone knowingly transfers ownership of marital property in an attempt to deprive the other spouse of his/her portion of the ownership or value of the marital property.
Utah Family Law, LC | divorceutah.com | 801-466-9277