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Tag: legal assistant

How to Fill Out Your Financial Declaration, Paragraph One. By Braxton Mounteer, Legal Assistant

If you find yourself involved in a Utah divorce action (whether child support will be an issue or not) or an action over the support of minor children in Utah (such as a child support action or action for parentage/paternity), you will need to exchange with your spouse or with the other parent an official court form known as the “Financial Declaration” (see Utah Rules of Civil Procedure 26.1). This blog series will concisely walk you through the process of preparing your financial declaration correctly.

As a general matter: you want to ensure your financial declaration is as accurate and complete as you can make it.

There are twelve total paragraphs in the Financial Declaration form.

Paragraph one of your financial declaration is easy to complete. It consists of checking a box declaring whether you are filing your financial declaration with the court.

When do you file your financial declaration with the court?:

  • In the event that you have a hearing regarding an issue of child support, spousal support, marital property, marital debts, attorney fees, court fees, or the court has specifically requested that a financial declaration be filed with the court.

Even if you are not required to file your financial declaration with the court, you are still required by the Rules of Civil Procedure to serve a copy of it (along with supporting documents for the claims and statements you make in your financial declaration) on the opposing party.

Please follow the rest of our posts on preparing your financial declaration, so that you understand better what is required of your financial declaration and why (and why it’s so important to ensure your financial declaration is as accurate and complete as you can make it).

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

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What Would I Have Done Differently If I Were In My Parents’ Shoes? By Braxton Mounteer, Legal Assistant

Like many people, I am a child of divorce. While I may not understand every reason why my parents chose to end their marriage (I was too young to understand at the time), I can look back on how I was raised, both pre- and post-divorce, and see what worked and what only caused problems. Hindsight is 20/20, after all.

I know that I cannot go back in time to do things differently, but if my experience might help divorcing parents who are contemplating these issues and help them avoid the difficulties and disappointments I encountered, this post will be among my best.

One of the things that affected me the most was how my divorced parents handled the matter of my clothes. Having two sets of similarly styled clothes might not have mattered to some people, but it always felt like a continental divide to me. I am the same person at both homes, but no matter what I did, I was never comfortable in either set of clothes. They always felt like I was borrowing clothing from a twin that I had just missed in passing.

My parents lived close enough that during major holidays, we did mid-day drop offs. On paper, this meant that I got two Christmases (and other holidays) on the same day. In reality, I was always late to the party. Always too early or too late to enjoy the holiday.

I love both my parents, but two Christmases gets old very quickly. I was surprised to find that as a child I had a limited amount of avarice during that particular holiday. Both parents want child-like wonder, and it always felt forced to drum up that much emotion for each holiday.

What I would have done differently (and what I did do when I was older) is use a suitcase. I combined both sets of clothing and made one set that I used all the time. It wasn’t the best solution to the problem, but it did help. To fix the holiday problem, I would adjust the schedule so that the holiday wouldn’t have been so taxing for my siblings and me.

Ultimately, the worst issues of my parents divorce are not something that I could have fixed as a child. For those issues I wish my parents would have come to me and my siblings together (parents together talking with their children together), to learn what our needs were and how they could meet them as best they could under the circumstances.

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

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Why Your Witness May Not Be As Good As You Think By Braxton Mounteer

I recently went to trial with my boss for a divorce case. One of the things that stuck out to me was that quite often the witnesses people call in support of their claims and defenses aren’t nearly as helpful as they were expected to be. Why?

1)      Proximity of the witness to the parties or to the facts. I don’t mean physical proximity, but I do mean their personal relationships to the parties or to the events witnessed. These witnesses could be a mother, father, brother, sister, best friend, etc. Courts expect these kinds of people to be loyal, even to the point of a) being hopelessly biased and/or b) lying to help their friends/family members. Your mom’s not expected to be the most neutral or objective witness. Your brother droning on about how your spouse is the devil and you are a saint isn’t all that credible. I’m not saying such witnesses are worthless (you don’t want your mom or brother testifying against you, for example), but they aren’t the most helpful of witnesses.

2)      Your witness’s testimony isn’t engaging enough. A witness who testifies that he/she has never seen you treat your kids poorly is a witness who isn’t saying you treat your kids well. Yawn. A compelling witness is someone who witnessed you selflessly coaching the kids’ soccer team for years and who made a great impact for good in the team members’ lives. You want a teacher who can testify that you came to every parent-teacher conference and read with your child 20 minutes every night. You need that police officer who witnessed and arrested your spouse for trying to beat you with a bat. You need the boss who testifies what you are paid.

3)      Your witness didn’t witness anything first-hand. Your witness can’t get on the stand and tell the judge what he heard someone else say. That’s called hearsay, and with few exceptions, it’s not admissible as evidence.

What if you don’t have any witnesses beyond your immediate circle of friends and family? You can still call them as witnesses, and if they are credible people who don’t know a whole lot, you likely should call them as witnesses. No witnesses in your corner looks worse than mediocre witnesses who can testify believably of a few things.

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

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You Reap What You Sow.

I’m Braxton Mounteer, a legal assistant. I’ve written and talked about this problem before, but it’s a recurring problem and a serious one. It’s hard enough to muster the courage to hire a divorce lawyer and pay so much money to your lawyer to represent you in your divorce in the hope that your lawyer can protect you, guide you through the divorce process, help you make sense of what’s going on, and bring you to the end of the divorce process with an equitable outcome. So why do so many clients make it so difficult for their lawyers to help them? Why do so many clients procrastinate? Why do they ignore or put off until the last minute their attorneys’ requests for vital documents. Why do they evade or give incomplete or outright false answers to important questions? Why do so many clients act as though their wish is the lawyer’s command? Look, we know this is a hard process for you. We know it’s hard to manage all of life’s challenges without a divorce being added to the mix. We know you don’t like having to go through your financial records and share them with strangers. We know you don’t want to go over your criminal history, your infidelity, your substance abuse, and other examples of your bad judgment you’ve been trying to leave in the past and move on from and even forget. We know you don’t like what feels like intrusions into your privacy, your mental and physical health history, relationships between you and your spouse, between you and your children, between you and other members of your extended family and circle of friends. We know that you hate already being in dire financial straits before you had to start budgeting to pay for a divorce lawyer. We know you don’t like feeling ignorant of the legal system and all the terms getting thrown around as the lawyers and the courts discuss your fate. We know how tempting it is to believe if you simply bury your head in the sand all of this will go away. But it won’t. It’s tempting to fool yourself into believing that once you hire a divorce lawyer it’s all in your lawyer’s hands. But it’s not. If you have a house, some retirement savings, minor children, if you are facing the prospect of paying or receiving alimony, if there’s substantial marital debt, then you will almost surely benefit in the long run from investing in the services of a skilled divorce lawyer. The most effective lawyers work with a client, not merely for a client. Lawyers are called counselors for a reason; They confer with you, they advise you, but the choices are yours to make. Wouldn’t you rather have as many options and choices open to you? Wouldn’t you rather act instead of being acted upon? In a very real sense, how much your lawyer can help you depends upon how much you help your lawyer. You reap what you sow.

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You Can’t Tell What The Judge Is Thinking By Braxton Mounteer, Legal Assistant

I recently accompanied my boss to the trial of a divorce case. If I had had to place a bet on what the judge was thinking at given moment or what the rulings would have been during the trial or at the end, I would have left the courtroom much poorer. One of the things that struck me most about trial was my inability to determine the importance a judge gives to the evidence and to witness testimony. I could not consistently predict which way the judge was leaning at any given moment. But it’s not solely a matter of my inexperience with the legal system. My boss (who has considerable trial experience) told me he encounters the same thing.

We believe this is intentional on the judge’s part, that judges deliberately wear a poker face (some better than others). If a judge expressively reacted to a piece of evidence or to testimony, it might give a false (or true) indication that the judge is favoring one party over the other.

An actual trial is not like the movies and television shows would have you believe (at least at a divorce trial isn’t). There was no audible gasp from one side or the other when a piece of evidence was entered. The lawyers don’t (at least not typically) swagger around the court room cracking wise or orating so as to bring the room to tears. It really was just the evidence and argument from one party versus evidence and argument of the other.

Now a judge being inscrutable is not to say the judge sits stone-faced and silent until the trial ended. The judge can and usually will make clear and candid statements occasionally during the trial. Sometimes the judge will ask a witness questions of his or her own, but sparingly (judges are discouraged from doing too much of their own questioning). And the judge obviously must rule on objections raised during the questioning of witnesses too. During recesses, the judges and attorneys and sometimes even the parties and witnesses may chat about sports or local news to unwind a bit from the tension that builds up over the course of the trial. Some judges will essentially let the lawyers go until the time runs out. Other judges may inform the parties and their lawyers whether the direction they are taking the case in isn’t all that useful to the court in reaching its ultimate decision.

The notion of “reasonable minds can differ” stands out in stark relief at a trial. Sometimes what the lawyer tries to persuade the court to do and what the court decided are the same, but other times what the court did with the evidence can really surprise you. Keep that in mind when you’re convinced that the judge could not possibly rule any way but the way you favor. The better you understand all the possible arguments, the more accurately, reasonably, and persuasively you can make yours.

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Is Court-Ordered Therapy Over-Used? By Braxton Mounteer, legal assistant.

Whether you believe that everyone needs (or could benefit from) therapy or that it is only for the most dysfunctional families, you, like most people, likely agree some therapy has a place in family law matters. For all the benefits of court-ordered therapy, however, therapy can be misused and abused.

For therapy to be effective in these kinds of settings, if you don’t have willing and earnest participation, it’s not going to work. It is hard work to confront your own faults and the faults of those who may have hurt you. It’s hard to better yourself. It’s hard to reconcile with past abuse, betrayals, and other kinds of mistreatment. One who is forced into therapy will, in most cases, refuse to participate or even actively oppose it. Is it any wonder why?

Courts often order too much therapy, with “too much” meaning either ordering therapy too often, or ordering therapy for too long. There are many reasons for this, but two of the worst are virtue signaling courts and greedy therapists.

Many judges and commissioners order therapy so that they can’t be accused of not being thorough, of not being sufficiently sensitive and caring and protective. This results in therapy being ordered even when it’s not needed or even warranted. It’s easy for courts to order therapy. It feels good. It’s a cheap, easy way for courts to look good. It doesn’t cost the commissioners and judges a penny to order therapy.

The point of ordering family members into therapy is rarely “eh, see if it helps.” Not everyone needs therapy. Some problems aren’t problems (or big enough problems) to warrant therapy. It’s likely a safe bet that most people might benefit from a little therapy. We’re all flawed. “Better safe than sorry” is tempting, but forcing people into therapy who aren’t dysfunctional can itself cause dysfunction.

I am referring to the emotional equivalent to scraping your knee. Those situations wouldn’t require the emergency room or physical therapy. However, when a court orders therapy left, right, and center, is making something that can help a lot of people into a hammer and every potential problem a nail.

You may say, “Well, even if the only benefit that therapy provides is a place to voice your problems, it is still better than nothing.” and you would be wrong. What if a child is handling the divorce well and putting him or her in therapy makes the child falsely feel he or she is being treated for a non-existent problem? Money wasted on needless therapy could leave one unable to pay for other needs in other aspects of one’s life and the life of one’s children.

If you are an aggressive and abusive husband or an emotionally abusive and cheating wife and your children take issue with that, it’s your fault. Therapy isn’t glue to keep your family together. You can’t expect someone to keep a ship afloat if you are constantly drilling holes in the hull. Sometimes you really are the problem and could benefit from facing and fixing your issues. When courts default to ordering therapy as a catch-all cure-all, they’re phoning it in. No one benefits from that. If you’re afraid to oppose therapy because you’re afraid you’ll be labeled anti-child or anti-caring, don’t be. If the court can’t make a cogent case that therapy is truly necessary or clearly warranted, have the gumption and courage to object. If you don’t, then you have no one to blame but yourself, if needless knee-jerk therapy is ordered in your case

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

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Should You Ask for a Psychological Evaluation in Your Divorce Case? By Braxton Mounteer

The point of a psychological evaluation isn’t to establish if someone merely suffers from any mental or emotional disorder or disorders, but to help determine whether such disorders, if they exist, render your spouse a danger to himself/herself or to your children, and/or whether your spouse is a pathological liar. In other words, if your spouse suffers from a mental or emotional disorder or disorders, are the disorders relevant to any issues to be decided in the divorce action?

If you’re contemplating a psychological evaluation, ask yourself why.
Is it because your spouse is genuinely unstable or deluded and not credible, or are you trying to embarrass, humiliate, or defame your spouse?

And FYI, if your attorney recommended a psychological evaluation, don’t let that be your own basis for seeking one. If your attorney cannot honestly explain to you the justification for a psychological evaluation, your attorney is likely just trying to get you to spend money.

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

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Why Hiding or Misrepresenting Your Income in a Divorce and/or Child Support Court Case Won’t Work (and why people still try) By Braxton Mounteer

When those who realize they may be ordered to pay child and/or spousal support (alimony) confront the matter, many try to lie about and to misrepresent their income in the hope they can avoid paying, or at least pay as little as possible. Few involved in the support calculation effort–from the would-be support obligee (“obligee” means the one who receives support payments) to the court–believes anyone would tell the truth about his/her income, and this is doubly true for support obligors (“obligor” means the one who pays) who are self-employed.

Those who hope to receive child support are also tempted to lie about their income as well because the less income they can get the court to believe they have, the more they hope to be paid.

While it is tempting to lie about your income in the hope of either receiving more than you should or paying less than you should, that’s wrong (and it most likely would not work anyway).

Many will earn more than they claim to earn by getting paid under the table or working a side hustle.

But how do you enjoy the hard-earned cash that you have cleaned your name from (i.e., the Walter White problem)? If you spend the money you haven’t reported, you risk unraveling the lie. For example, if your personal expenses are $10,000 per month, but you report an income of only $6,000 per month and don’t show yourself incurring $4,000 worth of debt every month, then clearly you have income of some kind that enables you to cover your $10,000 of monthly living expenses.

Avoiding your legal obligations often proves to be more trouble than it’s worth. It is both easier and easier on your conscience just to tell the truth. Most people aren’t good enough liars to keep everyone fooled forever. Don’t give your children reason to hate you for being greedy.

Now, we get it: some of you would feel a lot better about paying child support if you knew the parent receiving the support money was actually spending it for the child’s support and not for that parent’s own selfish benefit. But that’s a subject for another blog.

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

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Evidence and Honesty By Braxton Mounteer

You have just decided to file for divorce. Or perhaps you have been served with divorce papers. At some point early on in the process you will likely think to yourself, “I have so many text messages that clearly prove my spouse is terrible,” or “I have videos of my spouse behaving badly.” You could be right. But do you know what kind of evidence is relevant and that the court finds persuasive? And have you considered the implications of what your “evidence” actually says about you? For every gotcha text message or video you have, does your spouse have similar dirt on you?

You may think to yourself, “I’ll just delete the messages that cast me in a bad light,” or “I’ll edit the videos a certain way to make myself look better” and engage in other cherry picking. This rarely works. Indeed, it often backfires. Manipulating the facts is a form of lying. And it’s not that hard to spot or expose.

Understand what kinds of evidence the court needs and what is useless to a court. The court’s jobs are clearcut: 1) end the marriage 2) divide the marital assets, 3) divide responsibility for marital debts, 4) deal with custody of the children (if any), parent-time, and child support, and 4) determine whether to award alimony, and if so, how much and for how long based upon the recipient’s need and the payor’s ability to pay. That’s it. It is not the purpose of the divorce court to settle scores between you and your spouse or to declare who’s worse than the other. While spousal or child abuse can be relevant in a divorce case, stories about shouting matches and squabbles are nothing new or compelling in a divorce case.

Take a businesslike approach to your divorce case. You have to work out your feelings in a divorce case, just not in court. Don’t dwell on your feelings too much when dealing with the court; it’s a waste of your time and energy.

What should you do, then? You need to face the truth and deal with the truth. Submit the relevant evidence and concede your flaws and faults along with it. Your credibility is more important than trying to put up a false front. Your credibility is easier to show and maintain when you’re honest. Courts are more sympathetic with honest people than with liars.

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

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Evidence and Honesty By Braxton Mounteer

You have just decided to file for divorce. Or perhaps you have been served with divorce papers. At some point early on in the process you will likely think to yourself, “I have so many text messages that clearly prove my spouse is terrible,” or “I have videos of my spouse behaving badly.” You could be right. But do you know what kind of evidence is relevant and that the court finds persuasive? And have you considered the implications of what your “evidence” actually says about you? For every gotcha text message or video you have, does your spouse have similar dirt on you?

You may think to yourself, “I’ll just delete the messages that cast me in a bad light,” or “I’ll edit the videos a certain way to make myself look better” and engage in other cherry picking. This rarely works. Indeed, it often backfires. Manipulating the facts is a form of lying. And it’s not that hard to spot or expose.

Understand what kinds of evidence the court needs and what is useless to a court. The court’s jobs are clearcut: 1) end the marriage 2) divide the marital assets, 3) divide responsibility for marital debts, 4) deal with custody of the children (if any), parent-time, and child support, and 4) determine whether to award alimony, and if so, how much and for how long based upon the recipient’s need and the payor’s ability to pay. That’s it. It is not the purpose of the divorce court to settle scores between you and your spouse or to declare who’s worse than the other. While spousal or child abuse can be relevant in a divorce case, stories about shouting matches and squabbles are nothing new or compelling in a divorce case.

Take a businesslike approach to your divorce case. You have to work out your feelings in a divorce case, just not in court. Don’t dwell on your feelings too much when dealing with the court; it’s a waste of your time and energy.

What should you do, then? You need to face the truth and deal with the truth. Submit the relevant evidence and concede your flaws and faults along with it. Your credibility is more important than trying to put up a false front. Your credibility is easier to show and maintain when you’re honest. Courts are more sympathetic with honest people than with liars.

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

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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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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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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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Court Proceedings from the Perspective of a New Legal Assistant By Braxton Mounteer

I have finished my first week as a legal assistant. In that time, I have been to a few court proceedings. Previous to taking this job as a legal assistant, my only interaction with the court was being summoned for jury duty.

I have found that real life legal work is different from what you see in the movies and TV shows. Frankly, I prefer the dramatized versions.

The court proceedings that I have watched or participated in this week have been online via Webex. Remote court appearances are a huge convenience over the bad old days when everyone had to appear physically in a courtroom. I have seen people apprear for court proceedings via Webex in their cars, bedrooms, living rooms, from prison, their offices, and one cabin so far. People can still show up to court in person (sometimes they must), but they are then also included on the video call, if other participants appear via Webex.

I have seen sentencing, an adoption case, rescheduling, and objections all within the span of an hour. I saw a lawyer ask the court for directions on how to proceed because she had never appeared in that kind of proceeding before.

Many court case proceedings are scheduled at the same time, but don’t happen all that the same time. This has been lovingly referred to as “the cattle call”. People often wait up to an hour or more before their case is heard. This is one reason why remote appearances are a convenience; rather than having to twiddle your thumbs waiting at the courthouse, you can be at work or home and work or do other things while you wait until your case is finally called.

For the most part, court proceedings are a boring experience to the outside observer. There aren’t many “high-octane” moments where the bad guys almost win or the surprise witness bursts through the door. It often seems to me to be a matter of who the better b.s. artist is. This is where lawyers as a profession get their reputation for “gotcha” phrasing. I have seen entire arguments or refutations hinge on a single word. These aren’t arguments that would save or destroy the world, they are largely about whether something should happen. I think that the reason many proceedings are largely boring is due to the fact that they involve regular people. Regular people aren’t in charge of the fate of the world, just their own. If I was watching major corporations being taken down for nefarious deeds, then it would be more dramatic. I think that people forget that regular everyday life is everywhere, even in the courtroom.

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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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Lyndsey: Week 16 of Being a Legal Assistant

Magical Law in the Wizarding World: Harry Potter and the Chamber of Secrets

Welcome back to magical law in the Wizarding World the series where we analyze magical law in the Harry Potter books. For this video we will be analyzing Harry Potter and the Chamber of Secrets.

Quickly within the second chapter of the Chamber of Secrets we are reminded of the two most basic laws within the Wizarding World. The International Statute of Wizarding Secrecy and the Decree for the Reasonable Restriction of Underage Sorcery when Ron Wealsey and his twin brothers come to rescue Harry from his aunt and uncle’s house in a flying car. When Ron sees Harry he says, “…dad came home and said you’d got an official warning for using magic in front of muggles…you know we’re not supposed to do spells outside of school.” We are being reminded that it is against the law to use magic in front of muggles (the International Statute of Wizarding Secrecy) and that underage wizards are not allowed to use magic outside of school (Decree for the Reasonable Restriction of Underage Sorcery).

Later, in chapter three The Burrow we learn that Arthur Wealsey oversees the Misuse of Muggle Artifacts Office at the Ministry of Magic. When Harry asks what exactly Ron’s dad does, Ron explains it by saying, “It’s all to do with bewitching things that are Muggle-made, you know, in case they end up back in a Muggle shop or house. Like, last year, some old witch died, and her tea set was sold to an antiques shop. This Muggle woman bought it, took it home, and tried to serve her friends tea in it…The teapot went berserk and squirted boiling tea all over the place and one man ended up in the hospital with the sugar tongs clamped to his nose. Dad was going frantic — it’s only him and an old warlock called Perkins in the office — and they had to do Memory Charms and all sorts of stuff to cover it up —” Ron also mentions that if his father did a ‘raid’ on his own house he would have to put himself under arrest. I am pretty sure that the first time ‘raids’ are mentioned in the Harry Potter books are on page 31 of the Chamber of Secrets, however if I am wrong. Please let me know.

Raids are when the Misuse of Muggle Artifacts Office shows up unannounced to people’s houses to collect any bewitched muggle items that would land back in the hands of muggles. This is important because in chapter four At Flourish and Blotts we are presented with a scene of Mr. Malfoy selling items to Mr. Borgin at Borgin and Burkes – a known dark magical object antique shop.  Mr. Malfoy while talking to Mr. Borgin says, “You have heard, of course, that the Ministry is conducting more raids…I have a few — ah — items at home that might embarrass me, if the Ministry were to call.…I have not been visited yet…[but]…There are rumors about a new Muggle Protection Act — no doubt that flea-bitten, Muggle-loving fool Arthur Weasley is behind it…and as you see, certain of these poisons might make it appear…” This shows that there were polices in the Wizarding World that have strong enough consequences that even former death eaters, close followers of Voldemort, were concerned of the repercussions of breaking the laws.

Speaking of repercussions for breaking laws in the Wizarding World, Harry Potter and the Chamber of Secrets is the first time we are introduced to the jail that exists for wizards – Azkaban. We are introduced to the idea of it when the Minister of Magic (Cornelius Fudge) who we are also first introduced to in this book, comes to take Hagrid to Azkaban to calm people suspicions that he is the heir of Slytherin and that he has opened the Chamber of Secrets. However, it isn’t until Harry Potter and the Prisoner of Azkaban (book 3) that we learn more about Azkaban.

On a side note, Harry Potter and the Chamber of Secrets introduces us to the bribery, blackmail, and corruption that exists in the Wizarding World. Mr. Malfoy brough a letter from the Governor to suspend Dumbledore as the headmaster of Hogwarts, however in chapter eighteen Dobby’s Reward Dumbledore returned to Hogwarts to which Mr. Malfoy responded by saying, “You’ve come back. The governors suspended you, but you still saw fit to return to Hogwarts.” To which Dumbledore responds by saying, “Well, you see…the other eleven governors contacted me today. It was something like being caught in a hailstorm of owls, to tell the truth. They’d heard that Arthur Weasley’s daughter had been killed and wanted me back here at once. They seemed to think I was the best man for the job after all. Very strange tales they told me, too…Several of them seemed to think that you had threatened to curse their families if they didn’t agree to suspend me in the first place.” This shows us that there is still fear in the Wizarding World and that it is not a perfect law-abiding world.

There is one more instance of law breaking I want to bring up – Ron and Harry using Mr. Weasley’s flying car to get them to Hogwarts. We are first introduced to Mr. Weasley’s flying car by Ron and his twin brothers when they are picking up/kidnapping harry from his uncle and aunt’s house. When Harry inquired about the car, Ron and his brother mentioned that Mr. Wealsey had written a loophole in the laws of muggle artifacts that was currently the law. Mr. Wealsey wrote that you could bewitch muggle artifacts as long as you weren’t planning on using them. That is why he made a car that could fly but was never planning on flying it. When Ron and Harry were trying to get to Platform 9 ¾ they were unable to and decided to use Mr. Weasley’s car to fly to Hogwarts instead of doing anything else what would have been more practical. Anyways, while Ron and Harry were flying to Hogwarts, they forgot to use the invisibility button, and they were seen by muggles. Breaking the International Statue of Wizarding Secrecy among many other muggle laws and caused a ruckus within the wizarding community. We later find out that Mr. Wealsey was facing an inquiry at work because of the car he had built to fly that he never intended on flying. I wanted to mention this situation because it shows that there are a certain number of checks and balances within the wizarding community. Even though Mr. Wealsey was the head of his department, there was still an inquire into him, and the actions he took.

Interestingly, enough Ron and Harry somehow seem to escape most legal punishments when they break the law but in Harry Potter and the Chamber of Secrets, we do some people held to a higher standard. Join me next week as we discuss Harry Potter and the Prisoner of Azkaban.

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Lyndsey: Week 14 of Being a Legal Assistant

Legal Books

I am a big book reader. In fact, I am on about my 27th book in 2022 so far. So, for my fourteenth week of being a legal assistant, I want to tell you about some of my favorite books about legal topics that I’ve read and why I like them. We will start off with one of my favorite college textbooks/law books. First off is Policy Paradox: The Art of Political Decision Making by Deborah Stone. This book really opens your eyes to all the different sides of making laws. It is important while making laws that you understand every aspect and every type of glasses through which someone could look at the law. One of my favorite book series growing up was the Theodore Boone series by bestselling author (and former real lawyer) John Grisham. These books follow a young boy who is the son of two lawyers and how he offers his friends legal advice. I have yet to reread these books since becoming a legal assistant, but it would be fun to read them again to see if and how my opinion of them changes. One of the more recent legal books I have read is Where the Crawdads Sing by Delia Owens. I loved how this book intertwined the courtroom and conversations Kya had with her lawyer with what happened. It was fun to read along with the court what was happening and to find out along with them the facts of the case. I also liked how we did not know the result of the court case, we were learning along with everyone else. Last but not least, another of my favorite legal books is of course the…Harry Potter series by J.K. Rowling….. hey! They have court and prison in those books. I am rereading the Harry Potter series and it’s interesting to read it from a legal perspective. And there is a whole page on the Harry Potter Wiki about Magical Law. (that link is in the description section of this video), In fact, in the future I will make a video about Magical Law in the wizarding world. See you next week.

 

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Lyndsey: Week 15 of Being a Legal Assistant

Magical Law in the Wizarding World: Harry Potter and the Sorcerer’s Stone.

Believe me when I tell you that this video is about law. Stay with me. We are first introduced to the Wizarding World of Harry Potter in the book Harry Potter and the Sorcerer’s Stone. And it only seems right to start off my analysis of magical law in the Wizarding World by starting with that very first book. If you have not read the Harry Potter Books this video contains many spoilers, so do not continue watching if you have not read the books and think you might want to read them in the future.

There is one major law that governs the Wizarding World, and that is that magic is to be kept a secret from those who do not themselves practice magic or know what magic is. That means keeping it secret from the Muggles; “muggles” is a term for a person who does not possess supernatural powers, in other words, people like you and me. This law is called the International Statute of Wizarding Secrecy and it was passed into law in 1692, according to chapter five of Quidditch Through the Ages.

As is the case with all laws, there are institutions that exist for its creation, interpretation, and enforcement. And the Wizarding World is no exception. The first time the Ministry of Magic is mentioned is in Chapter Five Diagon Alley of the Sorcerer’s Stone during an exchange Harry has with Rubeus Hagrid. This exchange starts when Hagrid says, “Ministry o’ Magic messin’ things up as usual.” Harry responds by asking “There’s a Ministry of Magic?” and then later asks “But what does a Ministry of Magic do? ” Hagrid responds, “[T]heir main job is to keep it from the Muggles that there’s still witches an’ wizards up an’ down the country.” I find it interesting, all the laws that are in the Wizarding World that is, especially now that I am a legal assistant.

Within the Sorcerer’s Stone there are a few random laws that are mentioned here and there. I’ll mention some. This is not a conclusive list, so if you think of some more, please leave them in the comments section below.

Owning dragons is illegal. In chapter 14 Norbert the Norwegian Ridgeback we learn that Hagrid was hatching a dragon in his apartment. In a conversation between Harry Potter and Ron Weasley Harry says, “Hagrid’s always wanted a dragon, he told me so the first time I ever met him.” To which Ron response by saying, “But it’s against our laws. Dragon breeding was outlawed by the Warlocks’ Convention of 1709, everyone knows that.”

Preforming magic, if you were expelled from a wizarding school, is explained to us in chapter four The Keeper of the Keys, as illegal too. At least this was the case for Hagrid who said asked Harry not to mention any of the magic he preformed because, “Be grateful if yeh didn’t mention that ter anyone at Hogwarts, I’m – er – not supposed ter do magic, strictly speakin’.” When Harry asked him why, Hagrid responded that, “I was at Hogwarts meself but I – er – got ex-pelled, ter tell yeh the truth. In me third year. They snapped me wand in half an’ everything…” However, I am unsure if everyone who gets expelled from a wizarding school is not allowed to do magic or it is on a case by case basis.

In chapter 15, The Forbidden Forest it is mentioned that killing a unicorn is a crime and according to the Harry Potter Fandom Website unicorn blood is, “probably a Non-Tradeable Item, since the sale of this substance is controlled by the Ministry of Magic, making it strictly forbidden.” When Harry and his classmates were in the Forbidden Forest while serving detention, they are looking for what has been slaying and drinking the blood of unicorns in the forest. While in the forest Harry meets Firenze the Centaur who tells Harry, among other things about killing unicorns, “The blood of a unicorn will keep you alive, even if you are an inch from death, but at a terrible price.”

Students using magic outside of school while still under the age of 17 is also illegal according to the Decree for the Reasonable Restriction of Underage Sorcery, which was passed in 1875, but we do not learn more about it until you get to book two: Harry Potter and the Chamber of Secrets.

While preparing this I started to realize how many laws Hagrid constantly breaks while still trying to do what is right. There are of course plenty of Hogwarts rules Harry, Ron, Hermione, and others in the Wizarding World break, but those are rules, not laws. In the future books we learn more about other laws and the punishments for breaking them.

Thinking about these laws from a legal assistant’s perspective is very interesting. Imagine having to move for or draft an order or something of the sort for violating Wizarding World law. Those would be some interesting things to draft. However, the Wizarding World’s legal and court systems are different from what we have in the United States. We will get more into that later when we talk about Magical Law in the Wizarding World: Harry Potter and the Chamber of Secrets.

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