Tag: lawyers

Fair Treatment in Court by Braxton Mounteer, Legal Assistant.

The family law legal system likes to portray itself as a shining beacon of justice and equity, but I have seen first-hand that it is not. Whether it is opportunistic clients and their lawyers who will throw anything against the wall to see what sticks, or cowboy commissioners and judges who play fast and loose with the rules (and even make up their own), generally you will not get a fair shake (just a fair shake) unless you fight—and fight hard and extensively—for it.

Fight just to keep everyone honest? Really? Yes. Well, yes, in the sense that unless you don’t care about your own good character and subscribe to the “fight fire with fire” way of doing things.

If you have enough money, there is more than one lawyer out there that will take it and do and say basically whatever you want.

What about the commissioners and judges? Aren’t they motivated purely by upholding the law and the rules and dispensing justice impartially? Some are. Not all. It’s unpleasantly surprising to me how many domestic relations commissioners and judges indulge in pride, biases, apathy, and indolence.

If you know you’re innocent, if you know you’re a good person, that is rarely enough to ensure you’re treated fairly. What can you do if and when the deck is stacked against you because the opposing party is willing to lie, cheat, and steal his/her way to victory? You must fight with everything that you have. You must—if you can—produce overwhelming evidence that you are in the right (or the opposing side is in the wrong) if you are to have confidence that you will be treated fairly. That’s hard. That’s financially and emotionally exhausting. But there are no shortcuts.

Utah Family Law, LC | | 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 | | 801-466-9277

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Lawyers and Deadlines. By Braxton Mounteer

You have just received an email from your lawyer about a deadline that your lawyer needs your help to meet. What should you do? You are already extremely busy with your life and its responsibilities. You don’t need or have time for “homework” on top of everything else. You are paying your lawyer a substantial amount of money, why isn’t he or she handling all of this for you? The answer is simple: your lawyer cannot do what only you can do. 

Litigation is deadline driven. The rules of court set deadlines for when certain  exhibits, arguments, requests, claims, and responses must be served on the opposing party and/or filed with the court. Miss the deadline and you risk having those exhibits, arguments, requests, claims, and responses rejected. You could have critical evidence that could help win the day but if you miss the submission deadline, it won’t matter.

You could be subject to certain penalties under the law including contempt of court, awarding of all undisclosed assets to the other party, and being required to provide support beyond your means.

Ignoring deadlines won’t make them go away. Nor will it extend them. Procrastinate until the 11th hour, and you’re all but assured that your and your attorney’s work product will be rushed, incomplete, inferior, and weak.

Sometimes you can request an extension of time, but extensions are not guaranteed. Did you miss this deadline because of forces out of your control or did you just forget? You had better be ready to prove you have a good reason for an extension.

Meeting deadlines is of crucial importance. Your case’s success depends on it.

Deadlines are not “suggestions” and the work due by the deadlines is not busywork you can ignore without risking serious damage to your case or outright doing your case serious damage.

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Completeness of Documentation By Braxton Mounteer

One of the hardest documents for a Utah divorce litigant to prepare is the financial declaration. I am amazed at the number of clients who don’t take this document and its preparation seriously.

If you file for divorce or your spouse files for divorce, your divorce case will require you to provide a lot of documentation for various purposes as your life (and the life of your spouse and children, if you have minor children) will come under the magnifying glass. To avoid being fried like an ant, you need to produce complete and completely accurate documentation in preparing your financial declaration.

How is this done? It is a little comical, but it really comes down to accounting as best as you possibly can for every penny that comes in and that goes out. Every meal out. Every oil change. Every gasoline fillup. Every utility bill. Every dollar earned from every source.
Why should you worry about every red cent? Because you will be nickeled and dimed by opposing counsel and even by the court. Opposing counsel quite often (more often than not, frankly) wants to misconstrue confuse your income, expenses, and debts for his/her client’s benefit. The court often assumes that you are lying and/or wants to side with your spouse or against you. They are looking for any reason to call your credibility into question. And if you carelessly prepare your financial declaration, fail to provide an accurate financial declaration, and fail to support your numbers with verifiable documentation, you give opposing counsel and/or the court weapons to use against you.

“Ah,” some of you say, “but I want my financial declaration to be inaccurate so that I appear a lot poorer than I really am!” That way, if I’m the one who might pay alimony, I will pay less. And if I’m the one who might receive alimony, I will get more. Truth be told, it’s possible to lie in your financial declaration and get away with it. Truth be told, it’s harder than most people think. Truth be told, most people who lie (or who don’t lie but instead provide a half-baked, crappy financial declaration) get burned by it. Better to take the hit for being honest than risk an even bigger hit for lying. And do bear in mind that being honest is not a matter of “no good deed goes unpunished”. When you are honest, thorough, complete, and accurate in your work, that builds your overall credibility in your case. The person who owns up to his/her sins and sincerely repents gets due credit more often than not. The court thinks, “He/she was scrupulously honest in his/her financial declaration (even when he/she might could have fudged and escaped detection), so he/she is probably honest about the other things he/she tells me.” That’s more valuable than you know.

Now, if being honest always “won,” nobody would lie. You may experience your spouse lying through his/her teeth and getting away with it. It can and does happen. Still, it doesn’t justify you doing wrong or taking the risk of you being the one who gets caught in a lie or who gets hurt by turning in an incomplete and inaccurate financial declaration.
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What Does a Legal Assistant Think of Going Pro Se? By Braxton Mounteer

The term for representing yourself in court is “pro se” or “pro per”.

Can you navigate the legal system successfully without a lawyer representing you in your case?

Before I became a legal assistant, I thought the answer to that question was, “Well, it won’t be easy, but how hard could it be, if I tried my best?” You’d be forgiven if you think that way too. Many people do. With the exception of a few who are so rare as to make them statistically insignificant, however, going pro se is a recipe for failure.

To win a case, you need admissible evidence and enough admissible evidence. Do you know (really know) whether you have admissible evidence and enough admissible evidence? If not, proceeding pro se puts you at risk of losing.

To win a case, you first need to know whether the law supports your position. Do you know the law? Can you cite the sections of code and what rules of civil procedure and rules of evidence that apply? Do they support your position? If not, proceeding pro se puts you at risk of losing.

To win a case, you need to present your evidence and your legal argument in compliance with the rules of court and in an engaging and persuasive manner. Do you know how to do that? If not, proceeding pro se puts you at risk of losing.

Even if you went up against a brand new, inexperienced lawyer, who would you bet on? Someone with a college education, plus three years of law school (maybe more), or someone who read some blogs and watched some YouTube videos? Now add 5 to 30 years of experience to the lawyer’s side of the ledger. Do you really think you’re on a level playing field?

Would you go into unfamiliar terrain without a guide? The legal profession, the legal system, and court proceedings are all unfamiliar territory, and you can easily get lost and hurt in unfamiliar territory.

And then there’s the problem that is not so intuitive: you’re not in the club. Most judges and lawyers resent people who believe they can do what legal professionals do. Even pro se litigants who have the evidence, the law, and the arguments down can still lose just because the judge and lawyers don’t want you getting uppity.

Pro se is a path that is not for the faint of heart. It will be an uphill battle at best. If you go the pro se route, you will face people who are more knowledgeable, more experienced, and more skilled than you are or can reasonably ever hope to be.

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Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 1:

Please check your email. And if you don’t have an email address, you must get one. And then you need to check your email inbox every day. Not just once a day, but at least twice a day. Twice a day should be sufficient. Oh, and don’t simply read your lawyer’s emails but respond to the questions and requests to you in your lawyer’s email messages. A lot goes on in and during a divorce case. If you don’t respond timely to your lawyer’s requests and questions, your lawyer cannot do his job as well as he otherwise could.

Utah Family Law, LC | | 801-466-9277

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How to Avoid Being Called a Liar in a Utah Case By Braxton Mounteer

Who would you believe more in a court case: a person who admits to his/her faults, who honestly discloses all of his/her relevant information (even the information that hurts his/her case), and answered questions with “the truth, the whole truth, and nothing but the truth,” or a person who lied (even if just a couple times)?

One of the worst things to happen in a divorce case is for your credibility to come into question. If the court finds you lied about just one matter, it can cite that one lie as reason not to believe you on virtually all matters.

Simply put, to avoid damaging your credibility, always be truthful. This should be obvious, but I am amazed at how often clients of the firm I work for try to get away with lying (and how often they try to get away with lying about stuff that doesn’t really matter anyway, but I digress). The truth is learned and established by facts that are proven to be facts by the evidence in support of those facts. Your judge will not care much, if at all, about how you feel he or she should rule, the judge is (or should be) guided by the truth, by the facts, and then apply the law according to what the facts are.

To ensure your credibility is not questioned, admit when you are wrong. If you try to bend the truth about your sins and mistake or conceal the truth about them, you are a liar. Try to justify it any way you like, lying is lying. Whether by commission (expressly lying) or omission (withholding the whole truth, selectively disclosing the facts, shading the truth, spin, you get the idea), it’s all lying. While there are some situations in which you are not obligated to tell the truth about crime or possible crime you have committed (see the Fifth Amendment), questions of and risk of being convicted of crimes doesn’t arise very often in divorce cases. Honesty is the best policy.

I am amazed at how often client fail to understand that they lose credibility when they provide us with inaccurate information. While you may not be able to remember everything regarding your finances or your personal and family history, that doesn’t give you a license to fudge your answers or give incomplete answers. The “I didn’t understand” and “I don’t recall” excuses don’t inspire confidence in your credibility. They have just the opposite effect; they make you look lazy, scheming, and dishonest. Honest people are not forgetful people. Honest people aren’t afraid to produce their bank statements (all of them). Honest people aren’t afraid to disclose that side job. If you claim to have few or no records of things that normal people usually have records for, the default conclusion is that you have something to hide. While there are limits on what the opposing party can ask of you, when what they request complies with the rules, then answer questions completely and with complete honesty, produce all of the documents that are discoverable. Even if what you answer and what you produce may expose some of your flaws, it will also reveal you as honest and believable.

Once it’s damaged, credibility is hard to repair. Better never to do anything to call your credibility into doubt. Be honest. It’s the right thing to do, and if doing the right thing isn’t enough motivation for you, honesty tends to be the better “strategy” than lying and deception.

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The Importance of Working With Your Lawyer By Braxton Mounteer

I have noticed three chronic problems with clients in just the few weeks I have been working as a legal assistant.

1) Most clients seem to have an almost allergic reaction to providing required information to the court and to the opposing party and to filling out documents required by the court. It does not merely surprise me how hard it is to get required information out of most clients, it’s shocking and demoralizing. It doesn’t seem to matter what information is required, how long or how short the document they have to fill out is, and it doesn’t seem to matter whether they are the petitioners or respondents in the case.

2) Most clients seem to have a blind spot for deadlines. They could be reminded weeks (even months) in advance of a looming deadline, then reminded every week, then every other day, then every day, then multiple a day, and still act surprised when we chew them out in the 11th hour for having little to nothing done and shooting themselves in the foot as result.

We get that a divorce case is gut-wrenching. We understand that it’s discouraging–even terrifying–to deal with the allegations and the costs. We understand the all too human desire to bury your head in the sand and hope in vain that it will all just go away. We understand why the temptation to procrastinate is so strong. Which is why you need to do the work, in full and on time. Avoidance will only make things harder, will only make things worse.

3) Many clients provide false and/or incomplete information to the court and to the opposing party in the course of a divorce case. Whether they outright lie or are simply being careless, the consequence is the same: credibility is damaged, (often irreparably) and the case is weakened (sometimes irreparably). The more honest and completely forthcoming you are, the stronger your armor is in the litigation battle. Truth be told, lying and deception can result in some big wins sometimes, but lying and deception are wrong (and despite their general reputation for playing fast and loose with the truth, there are some lawyers out there who take their oaths to be honest and just seriously). If being morally upstanding isn’t enough to inspire you to be honest, frankly the risks of lying and deception aren’t worth the consequences if you’re caught (and most liars get caught).

4) It’s amazing how often clients get in legal trouble over the course of their divorce proceedings. They’ve been stand-up and law-abiding citizens their whole lives up to that point, but then they “miraculously” are accused of domestic violence, stalking, substance abuse, tax evasion, DUI, child molestation, etc. Now, clearly there is a difference between committing a crime and being falsely accused of a crime by a spouse who is trying to use the false allegations as leverage in the divorce action, but it is surprising how often divorce causes good people to snap. Whether they end up in jail (or picking up trash along the Interstate to work off their community service) or passed out on the floor drunk or high or both, many good people are pushed over the edge by divorce. Remember that when a divorce case is filed, you may find yourself reaching your breaking point. Be prepared. Swallow your pride. Keep your judgment clear. Don’t be afraid to find the occasional listening ear or shoulder to cry on. Find safe and non-incriminating ways to deal with the despair, fear, anger, and anxiety by spending time with family and friends, fellow church members, or, if need be, a good (a good, not just any) counselor or therapist.

The reason someone retains the services of an attorney in a divorce case is to get the help they need to do what they cannot and should not do themselves in the divorce case. A good lawyer is a good value. But the best lawyer in the world is not a wizard. Your lawyer shouldn’t be spending his time and your money saving you from yourself. Do yourself a favor and keep this in mind (and avoid the chronic missteps I see clients engage in far too often).

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Can Divorce-Split Property Proceedings Be Done With Attorneys on a Contingency Pay Basis, Offering Lawyers a Part of the Estate to Pay for Court Costs?

I cannot answer this question as it applies in all jurisdictions because I am not licensed in all jurisdictions, but I can answer this question at that applies in the jurisdiction where I practice divorce and family law (Utah):

Utah Rules Professional Conduct Rule 1.5 provides:

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof[.]

Divorce attorneys can acquire an interest in a client’s property through an attorney’s lien. This excerpt from an article by Keith A. Call in the Utah Bar , Volume 27 No. 1 Jan/Feb 2014l explains the attorney’s lien clearly and succinctly:

Rule 1.8(i) specifically provides that a lawyer shall not acquire an interest in the cause of action or subject matter of the litigation, except that the lawyer may (1) “acquire a lien authorized by law to secure [his] fee,” and (2) enter into a reasonable contingent fee arrangement in civil cases. Id. R. 1.8(i).

The Statutory Attorney’s Lien

A “lien authorized by law” as described in Rule 1.8(i)(1) includes the statutory attorney’s lien found in Utah Code section 38-2-7. By statute, a lawyer automatically receives a lien on any money or property that is the “subject of or connected with the work performed.” Utah Code Ann. § 38-2-7(2) (LexisNexis 2010). This includes real or personal property, funds held by the attorney, and any settlement, judgment, and proceeds thereof. Id. The statute includes limitations on pending criminal and domestic relations matters. Id. § 38-2-7(9).

The statutory attorney’s lien is not a “business transaction” with the client and is therefore exempt from the requirements of Rule 1.8(a). See Utah State Bar, Ethics Advisory Op. Comm., Op. 01-01 (2001). The Ethics Advisory Opinion Committee has further opined that, given a lack of clarity in the extent of an attorney’s statutory lien rights, lawyers should not be subject to discipline for asserting lien rights according to a good faith interpretation of the statute. See id. The statutory “attorney’s lien commences at the time of employment.” Utah Code Ann. § 38-2-7(3). Notice of the lien can be given by filing a notice of lien in a pending legal action in which the attorney performed services or, in the case of real property, by filing a notice of lien with the county recorder. Id. § 38-2-7(5).

To enforce the statutory lien, a lawyer must first demand payment from the client. If the client fails to pay within thirty days, the lawyer can move to intervene in the case in which the attorney performed services or the lawyer may file a separate legal action to enforce the lien. Id. § 38-2-7(4)-(5).

Utah Code §38-2-7 (Compensation—Attorney’s lien) provides:

(9) This section does not authorize an attorney to have a lien in the representation of a client in a criminal matter or domestic relations matter where a final order of divorce has not been secured unless:

(a) the criminal matter has been concluded or the domestic relations matter has been concluded by the securing of a final order of divorce or the attorney/client relationship has terminated; and

(b) the client has failed to fulfill the client’s financial obligation to the attorney.

Utah Family Law, LC | | 801-466-9277

(16) Eric Johnson’s answer to Can divorce-split property proceedings be done with attorneys on a contingency pay basis, offering lawyers a part of the estate to pay for court costs? – Quora

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Do Lawyers for the Parents Have a Duty to Their Children?

Lawyers are officers of the court. That means that while a lawyer clearly has a duty to his or her client, a lawyer’s first duty is not to the client, but to the court. In child custody disputes, the court’s paramount duty is to subserve the best interest of the child. I happen to believe that this is a misguided policy (the court’s paramount duty is to subserve the best interest of the family, both as to its individual and collective members). But I digress. Given the best interest of the child doctrine, what duty, if any does the lawyer for a parent—who is also an officer of the court—owe to the child? Is there a duty, owed by the lawyers for the parties to the Court, which also takes priority over the duty to the client? After all, a child is not a party to those proceedings. Yet because a court’s primary duty is subserving the best interest of the child, some argue this means that the welfare of the child (i.e., the best interest of the child) prevails over the lawyer’s duty to subserve the best interest of his or her own client. I’m not sure that’s good reasoning, good morals, good ethics, or good policy. I’ll have more on this in future videos, but in the meantime, what do you think?

Utah Family Law, LC | | 801-466-9277


How Are Family Law Attorneys Expected to Handle a Decision Made by the Judge? Do They Call Their Client and Explain It? Do They Have Their Office Manager Send the Decision to Their Client Without Explanation?

This is a great question because it is so basic, yet so important. These are the kinds of questions a client needs to have answered understood before he or she can ask—and understand the answers to—more complex questions.

My guess is that you may be asking this question at a point where you have yet to experience going through family law/domestic relations legal proceedings. Thank you for having the guts to ask a question like this.

In many situations in family law legal proceedings, the client will be in court with his or her lawyer at the time of a hearing, so the client will be there to see and hear the decision that the judge makes from the bench when the hearing is over. In those situations, the client does not have to worry about whether his or her lawyer will inform him of the decision because the client was there himself or herself to hear the decision of the judge. but even in those circumstances, a client may not understand what the judge was saying or what the effect of the judge’s decision will be on the client. In those situations, the client needs to make sure to ask his/her lawyer to explain what the client does not understand and to answer the questions the client may have about the impact of the judge’s decision, and should be proactive in advising the client what to do going forward in light of and in compliance with the judge’s decision.

There will be other times when the judge will not state his or her decision from the bench orally, but will do what is known as taking the matter under advisement after the hearing is over and issuing a written decision later. Sometimes the judge will tell you when to expect the judge’s written decision (the judge will tell you and your lawyer that the judge expects to get the decision written within the next week or 10 days or whatever period of time the judge states). some judges will simply tell you that you will get the judge’s decision when you get the judge’s decision. Even in those situations, there are rules that govern how long a judge can take before he or she must issue that written decision. It is important for a client to inquire with his or her lawyer to ensure that the lawyer send the client a copy of the judge’s written decision. Good lawyers will forward to the client a copy of the judge’s decision as soon as the lawyer receives it himself/herself. Unfortunately, however, not all lawyers are good lawyers. Not all lawyers will send their clients copies of the documents that the judges issue or that opposing counsel sends to them. Clients need to ensure that they are monitoring and policing their own case. They should not, unfortunately, believe that their lawyers will timely keep them informed of what is going on in their cases.

If ever you believe that your lawyer is not keeping you apprised of what is happening in your case and is not doing what needs to be done in your case, not reacting as quickly and effectively as he or she should, and not taking proactive measures as quickly and effectively as he or she should, do not be afraid to raise these concerns with your lawyer. You don’t have to do so in an overly aggressive or snotty way, nor do you have to do it obsequiously or with fear and trembling before your attorney. one of the things you are entitled to as a client is to be kept informed of what’s going on in your case and informed of what your options are so that you can make timely educated decisions about your case.

Good lawyers will not only send their clients copies of court orders and other documents that are generated in the course of the case, but they will also explain what these documents mean and why they were prepared or received at a particular time and what effect the documents or their content will have on the client and on the client’s case. Good lawyers will answer their clients’ questions about what is happening in their cases. But a good client will not sit back and wait for his or her good lawyer (or is a bad or mediocre lawyer, as the case may be) to anticipate and to answer the client’s questions and concerns. A good client will ask thoughtful questions and will thoughtfully receive them and consider them.

Utah Family Law, LC | | 801-466-9277


Do Family Law Attorneys Typically Play Along With Unreasonable Client Demands?

The better question is: Do SOME family law attorneys typically play along with unreasonable client demands?

The answer is, unequivocally, yes: some family law attorneys typically play along with unreasonable client demands. And their numbers are bigger than you’d guess. Family law attorneys who play along with unreasonable client demands do so out of a need (or a greed) for clients and a fear that if they don’t agree with their clients and do their bidding, no matter how crazy/unfair the client’s desires are, they will lose the client (and the client’s fees). As good as it may make a client feel sometimes to have a yes man as your divorce or family lawyer, that client is being fleeced.

Do MOST family law attorneys typically play along with unreasonable client demands? As much as I don’t like most family law attorneys are their machinations, I cannot honestly say that, in my opinion, most family law attorneys typically play along with unreasonable client demands. Far too many family law attorneys play along with unreasonable client demands, but not most.

Do ALL family law attorneys typically play along with unreasonable client demands? No.

Utah Family Law, LC | | 801-466-9277

(8) Eric Johnson’s answer to Do family law attorneys typically play along with unreasonable client demands? – Quora

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How Do You Get a Divorce That Involves No Children and No Property or Money if You Haven’t Been Able to Find Your Spouse for Almost 10 Years, and Without Having to Hire a Lawyer?

You probably worry that hiring a lawyer will bankrupt you, and so you’re afraid to get the help a good divorce lawyer could be to you.

Before you resolve not to hire an attorney to represent you, find out what it will cost you to get a good divorce attorney’s help in your situation. You may be surprised that it’s not ruinously expensive.

I won’t lie: sometimes the cost of what it would cost you to have an attorney represent you is ruinously expensive, but find out if that’s true in your case. Don’t deny yourself the benefits of good legal representation because you foolishly refused to find out if you can afford it.

In the situation you described (no children to fight over, no property to fight over, and your spouse has been AWOL for ten years), getting your divorce case filed, service of process completed, and your decree of divorce issued by the court may not take long or cost much, if you end up getting a divorce by default.

Even if you ultimately decide not to hire an attorney, meeting for an initial consultation with an attorney or two is still a good way to get informed about certain aspects of the divorce process.

If, after you consult with an attorney, you determine that you cannot afford an attorney’s services or you prefer not to spend the money on the attorney’s services, there are do-it-yourself options available, but frankly, do it yourself divorce is a risky proposition.

To find out what do-it-yourself options are available to you for your jurisdiction, visit the local courthouse and the law school nearest you; they may have forms and even clinics that offer help and guidance in the DIY process. You can (and should) read about divorce online to educate yourself about what divorce is and how the law applies and functions, but before you order a set of DIY divorce forms online, talk with the people at the courthouse and law schools to get your bearings.

Utah Family Law, LC | | 801-466-9277

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What are two lines of work that fit together well?

What are two lines of work that fit together well? For example, a remodeling contractor and a divorce lawyer.

I do not believe a lawyer or client would really want to interact with each other any more than necessary. I wouldn’t want to remodel my divorce client’s home, and I doubt that my client would want me remodeling his/her home either. 

But now you have me thinking. Perhaps one could practice law and write novels. The problem there is that if you’re really good at one of the two, you’re likely to be pretty mediocre at the other and want to give up the “sideline” as more trouble than it’s worth. That’s what John Grisham did (after he hit it big as a novelist he stopped practicing law and—based upon the scornful way he describes the practice of law and lawyers in his novels—joyously never looked back). 

It’s extremely hard to practice law profitably on a part-time basis, I can’t think of another line of work that fits together well with the practice of divorce law other than perhaps teaching a law class or two in law school or college. Even then, it wouldn’t be a “I have two part-time jobs I work equally” situation; you’d still be practicing law full-time. 

Utah Family Law, LC | | 801-466-9277 

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Is there anything that can surprise a judge during a divorce proceeding?

Is there anything that can surprise a judge during a contested divorce proceeding?  

Of course.  

We’ve all read about cases where all of the circumstantial evidence indicated the defendant is guilty, only to be surprised in the eleventh hour some piece of evidence that conclusively proves he couldn’t be guilty, but that someone else is the perpetrator.  

We know, sadly, of people mistakenly or wrongfully convicted, which often comes as a surprise (because we hate the idea that the justice system can be and in such cases is corrupt at one or more levels): 

And we’ve all, unfortunately, learned of cases where the defendant was falsely accused, which surprises some. See: 

Of course. I will describe one common way a judge can be surprised (especially in divorce and family law cases): like all of us, judges have their own worldviews based upon their individual personal experiences, what they were taught as they grew up, their own beliefs and biases. A good judge tries to be as aware as possible of these things, so that he/she will not take a subject approach to the case but will follow where the evidence leads according to what the law dictates.  

One of the things that many subjective-minded judges tend to do in divorce and child custody disputes is believe the woman/mother to be: 

  • honest 
  • the better parent of the two 
  • financially dependent on her husband 
  • under the husband’s explicit or implicit control (whether that be financially, emotionally/psychologically, physically, or both) 
    • victimized in some way (whether great or small) by the husband, if the wife claims to have been. Extremely common examples: “He controlled all the money, wouldn’t tell me how much/how little we had, and wouldn’t give me any to spend,” and/or “He forbade me from having a job,” and/or “He physically/sexually/emotionally abused me and/or the children,” and/or “He forced me to engage in sexual acts that I found objectionable/humiliating,” and/or “He never shared in the household chores and childrearing.” 

Don’t get me wrong; many wives/mothers are all of these things, but not always. But 25 years as a divorce and family lawyer I can tell you that in my experiences some judges presume the women to be some of these things simply by virtue of them being women, and if the wife/mother makes claims to being any of these things, the judge will often treat such claims as “prima facie” established until the husband/father refutes/rebuts them.  

Consequently, it often surprises some such judges when a husband/father proves* that, while he is not perfect: 

  • he is honest and/or the wife/mother has been lying about him or on the subject of other issues in the divorce and/or child custody case. 
  • he is either just as good a parent as his wife or the better parent of the two 
    • and if he proves he’s the better parent, that often comes as so big of a shock to some courts that the court cannot/will not bring itself to accept such a concept, let alone such a fact 
  • that if the wife/mother is in fact financially dependent on him (as many wives often are, though decreasingly so in modern society), he has been forthright and transparent about financial matters with his wife  
  • that he does not exercise any kind of force or control over his wife and/or children but is decent, loving, and treats all of his family members fairly and well 

*Getting over that bar is often extremely difficult, sometimes impossible for some husbands/fathers with some judges.  

Utah Family Law, LC | | 801-466-9277  

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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 | | 801-466-9277 

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I signed a CPS safety plan but the court orders protective supervision.

What happens if I signed a CPS safety plan but the court orders protective supervision? 

The court’s order supersedes the agreement. 

Utah Family Law, LC | | 801-466-9277  


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Do I need to show up for court if I was never served papers?

Do I need to show up for court if I was never served papers? I live in South Carolina.

I cannot speak for or about the jurisdiction of South Carolina because I practice law in Utah (so you need to inquire with a lawyer who is licensed to practice in South Carolina), but I can tell you a few things as a general rule of thumb: 

  • Many people are under the mistaken belief that “if they don’t give me them court papers first, the court is powerless to do anything to me”. Not true. Good faith, duly diligent efforts to effectuate service of process on you or at least—depending on the proceedings—notice to you is generally required before court action can be taken against you, but if, despite duly diligent efforts to locate you or chase you down to hand you “them court papers,” you cannot be found or served, there are other ways that a court will deem you to have been served and/or put on notice. 
  • If you hide in an effort to evade service/notice, the court will take that into account and hold that against you. No one can game the system this way. When that happens, the court can order that service on you be accomplished through alternative means. Such as? For example: 
    • the court could order that notice be mailed to your last known address (if you’re not there, that’s your problem, not the court’s); 
    • the court could order that notice be given in the form of an email or text message (to your last-known email address or phone number; if the email address or phone number used is not an address or number you use anymore, that’s your problem, not the court’s); 
    • the court could order that notice be given in the form of an instant message to an open social media account of yours (if you don’t use it anymore, but didn’t close it, that’s your problem, not the court’s); 
    • courts could (as they did frequently in the past, but not so much nowadays) give notice by publishing a notice in the “legal notices”” section of the newspaper (kids, for those of you too young to know what a newspaper is, you can click here) 
  • So if you think that avoiding service of process or closing your eyes and ears to notice is going to thwart the court or the opposing party, the joke’s on you. 
  • If you think you don’t have to appear in court merely because you didn’t receive service of process or notice (or more accurately, did your darnedest to ensure you didn’t get service or notice), again, the joke’s on you.

Utah Family Law, LC | | 801-466-9277 

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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 | | 801-466-9277

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