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Tag: legal system

I’m a Divorce Lawyer. Too Many People Divorce.

I’m a divorce lawyer. I’m not divorced (God willing, I won’t ever be), I am opposed to divorce generally (while there are times when a divorce is plainly necessary, most of the time divorce makes what one is suffering, what one’s spouse, and what one’s family are suffering worse). The family law legal system is adequately designed but poorly administered (and that includes many of the litigants).

While I acknowledge that many people marry foolishly and recklessly, people divorce far too often.

If your marriage is not placing your physical safety or life in danger, if your spouse is not flouting his/her marital vows, and yet you are still contemplating divorce, ask yourself if it’s your spouse or even merely being married that is your problem (it likely isn’t).

If your spouse or marriage is not your problem, they are likely more help to you than a hindrance, and throwing them away will likely do you (and your spouse) more harm than good.

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

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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 | divorceutah.com | 801-466-9277

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I Am Going through a Custody Battle and the Other Parent Is Making False Statements About Me in Court. What Can I Do to Protect Myself and My Child?

If you want just my direct answer to this question, skip to the last paragraph, but I submit that you’ll have a much better understanding of the answer if you read all of this first.

This is and has been a major, serious problem in family law for as long as I can remember. It’s not getting better. It victimizes far too many innocent people who naively trust the legal system to value truth and justice above all.

Guilt by accusation. Accuse your spouse of being an abusive parent, and immediately the accused finds himself or herself in a position of guilty until proven innocent.

Judges (and that includes the domestic relations commissioner) are, with due respect to them, quite often (so often; more often than you’d expect or hope, frankly) suckers for substituting and accepting the seriousness of the allegations over the substance of the evidence. Why?

Many people innately know, but struggle to articulate it, either because it’s subconscious or too shameful to admit: the cowardly, lazy allure of “better safe than sorry” and “abundance of caution”. “Treat all allegations of spousal or child abuse as true,” so the “reasoning” goes, “and that way we prevent abuse, whether real or imagined.” Why go to all the trouble of investigating, factfinding, and truth seeking when abusers might lie and get away with it? No, better to treat pretty much every abuse claim as true. And if innocent parents (mostly men, but a fair and growing number of women too) are the victims of such a policy (ruined reputations, loss of standing in the community, loss of friends, loss of employment, being persecuted), it’s a price worth paying (especially when the judges and commissioners themselves don’t pay that price themselves) “if it saves just one life.” It’s obvious nonsense (no judge who treats people this way would ever want to be treated that way), but that is culture of the modern legal system. I wish I could deny it, but I’d be lying, if I did.

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

― John Adams

When it comes to accusations of abuse (or even danger of being abusive), it’s terrifyingly far too often the opposite of the “Better that a hundred guilty men go free than to convict one innocent man.”

So, if you are being falsely accused, don’t rely on “I can’t prove a negative,” “accuser has the burden of proof,” or “innocent until proven guilty.” If you can prove you’re innocent, do it. Do everything in your power to prove your innocence. Spend the money and the time and the effort to fight for and to prove your innocence. Strive to hold the courts to being competent and impartial because when it comes to allegations of spousal or child abuse, many courts will not exercise the courage to dismiss such claims for a lack of proof.

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

(65) Eric Johnson’s answer to I am going through a custody battle and the other parent is making false statements about me in court. What can I do to protect myself and my child? – Quora

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House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”

Today’s post on proposed family law legislation under consideration during the 2024 Utah legislative session is House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”.

This bill, according to its own description:

  • provides that a substantial and material change in circumstances for a custody order includes a parent residing with an individual, or providing the individual with access to the parent’s child, when the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual with access to the parent’s child, and the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and
  • makes technical and conforming changes.

It would amend the following code sections, if passed into law:

Utah Code § 30-3-10.4

Utah Code § 30-3-33

My thoughts on this bill:

If this bill passed, what effect would it have? A parent discovers that the person he/she resides with or to whom the parent has “provide access to his/her child(ren)” meets one or more of the child abuse/child sexual abuse factors and has to notify the other parent of this fact? So what? Unless the person is barred from contact with children, then unless that person has abused, attempted to abuse, or threatened to abuse the child(ren), what can legally be done? A child being in the presence of a child abuse ex-con is not itself a “substantial and material change of circumstances” justifying a modification of child custody or parent-time, in my view. We can’t keep punishing someone repeatedly for the same crime.

And the definition of “sex offender” gets broader all the time. You can get on the sex offender list for the silliest of things (I know a guy who went streaking in college and is on the sex offender list—it was stupid of him to go streaking, but a little kid saw him from a neighboring window and that’s what got him on the sex offender list).

Yes, living with a child abuse ex-con or providing a child abuse ex-con “access to the child(ren)” is poor judgment, but without the children being harmed or in danger of being harmed, there’s not enough to go on to do anything.

But I get it. If I were a divorced or single parent, I wouldn’t want the other parent living with a convicted sex offender either (assuming the offense was a serious one, and not one of those “he/she is on the sex offender list for public urination” kind of convictions).

It’s not a matter of how I feel about sex offenders (real sex offenses are vile), it’s whether the proposed law would do any good. I don’t think it would. Especially not in the legal system we have now. What good one perceives such a law would do and what it would actually do are quite different, in my view.

I don’t know a great deal about the sex offender registry law and other post-conviction laws. Are convicted sex offenders required to notify prospective boyfriends/girlfriends or spouses that they are convicted sex offenders currently? It is my understanding that they do not. If they do, then H.B. 140 may have stronger rational footing than I believe. If not, then the bill doesn’t appear to make much legal sense to me (meaning: I don’t see what good it will actually do, no matter how good it may feel to propose such a law).

Even if the law were passed, it would not likely be the basis for a modification of a child custody or parent-time order. Living with someone who is a convicted sex offender alone is simply not proof of any harm or sufficient danger to a child (just as living with one convicted of a violent crime, drug use, drug dealing, or other crimes is not). I don’t know the real statistics about the rate of recidivism for sex offenders, but even if we assume for the sake of discussion that it’s very high, that alone would not, in my view, likely be seen by a court as a reason to change custody. Like it or not.

If a parent resided with a sex offender with a history of repeated offenses, that might qualify as too great a risk to a child, but if we’re talking one conviction (maybe even two, sadly), that may not be enough to establish the sex offender as a danger to the children. My opinion is not based upon sympathy for sex offenders but on what I believe the courts would do in the situation you describe. This is why you’ll notice that there has not been a bill proposed that prevents a single parent or divorced parent from marrying or living with a convicted sex offender. I believe it would be found unconstitutional, that it would be found to unduly punish those who don’t re-offend.

Besides, how would one ever prove that a parent who resides with a convicted sex offender or provides him/her with access to that parent’s knows that the individual is a sex offender or worse, “an offense that is substantially similar to” a sex offense (see lines 57 and 58 of the bill, emphasis mine).

No matter how good the intent behind H.B. 140 may be, I foresee far too many adverse unintended consequences and abuses of such a law.

AMENDMENTS TO CUSTODY AND PARENT-TIME

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 30-3-10.4 is amended to read:
35          30-3-10.4. Modification or termination of order.
36          (1) The court has continuing jurisdiction to make subsequent changes to modify:
37          (a) custody of a child if there is a showing of a substantial and material change in
38     circumstances since the entry of the order; and
39          (b) parent-time for a child if there is a showing that there is a change in circumstances
40     since the entry of the order.
41          (2) A substantial and material change in circumstances under Subsection (1)(a)
42     includes a showing by a parent that the other parent:
43          (a) resides with an individual or provides an individual with access to the child; and
44          (b) knows that the individual:
45          (i) is required to register as a sex offender or a kidnap offender for an offense against a
46     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
47          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
48     Abuse Offender Registry; or
49          (iii) has been convicted of:
50          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
51     or 76-5-208;
52          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
53          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
54     Part 3, Kidnapping, Trafficking, and Smuggling;
55          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
56     Exploitation Act; or

57          (E) an offense that is substantially similar to an offense under Subsections
58     (2)(b)(iii)(A) through (D).
59          [(1)(3) On the petition of one or both of the parents, or the joint legal or physical
60     custodians if they are not the parents, the court may, after a hearing, modify or terminate an
61     order that established joint legal custody or joint physical custody if:
62          (a) the verified petition or accompanying affidavit initially alleges that admissible
63     evidence will show that the circumstances of the child or one or both parents or joint legal or
64     physical custodians have materially and substantially changed since the entry of the order to be
65     modified;
66          (b) a modification of the terms and conditions of the order would be an improvement
67     for and in the best interest of the child; and
68          (c) (i) both parents have complied in good faith with the dispute resolution procedure
69     in accordance with Subsection 30-3-10.3(7); or
70          (ii) if no dispute resolution procedure is contained in the order that established joint
71     legal custody or joint physical custody, the court orders the parents to participate in a dispute
72     resolution procedure in accordance with Subsection 30-3-10.2(5) unless the parents certify that,
73     in good faith, they have used a dispute resolution procedure to resolve their dispute.
74          [(2)(4) (a) In determining whether the best interest of a child will be served by either
75     modifying or terminating the joint legal custody or joint physical custody order, the court shall,
76     in addition to other factors the court considers relevant, consider the factors outlined in Section
77     30-3-10 and Subsection 30-3-10.2(2).
78          (b) A court order modifying or terminating an existing joint legal custody or joint
79     physical custody order shall contain written findings that:
80          (i) a material and substantial change of circumstance has occurred; and
81          (ii) a modification of the terms and conditions of the order would be an improvement
82     for and in the best interest of the child.
83          (c) The court shall give substantial weight to the existing joint legal custody or joint
84     physical custody order when the child is thriving, happy, and well-adjusted.
85          [(3)(5) The court shall, in every case regarding a petition for termination of a joint
86     legal custody or joint physical custody order, consider reasonable alternatives to preserve the
87     existing order in accordance with Subsection 30-3-10(3). The court may modify the terms and

88     conditions of the existing order in accordance with Subsection 30-3-10(8) and may order the
89     parents to file a parenting plan in accordance with this chapter.
90          [(4)(6) A parent requesting a modification from sole custody to joint legal custody or
91     joint physical custody or both, or any other type of shared parenting arrangement, shall file and
92     serve a proposed parenting plan with the petition to modify in accordance with Section
93     30-3-10.8.
94          [(5)(7) If the court finds that an action under this section is filed or answered
95     frivolously and in a manner designed to harass the other party, the court shall assess attorney
96     fees as costs against the offending party.
97          [(6)(8) If an issue before the court involves custodial responsibility in the event of
98     deployment of one or both parents who are service members, and the service member has not
99     yet been notified of deployment, the court shall resolve the issue based on the standards in
100     Sections 78B-20-306 through 78B-20-309.
101          Section 2. Section 30-3-33 is amended to read:
102          30-3-33. Advisory guidelines for a custody and parent-time arrangement.
103          (1) In addition to the parent-time schedules provided in Sections 30-3-35 and
104     30-3-35.5, the following advisory guidelines are suggested to govern [all parent-time
105     arrangementsa custody and parent-time arrangement between parents.
106          [(1)(2) [Parent-time schedulesA parent-time schedule mutually agreed upon by both
107     parents [areis preferable to a court-imposed solution.
108          [(2)(3) [TheA parent-time schedule shall be used to maximize the continuity and
109     stability of the child’s life.
110          [(3)(4) [Special consideration shall be given by each parentEach parent shall give
111     special consideration to make the child available to attend family functions including funerals,
112     weddings, family reunions, religious holidays, important ceremonies, and other significant
113     events in the life of the child or in the life of either parent which may inadvertently conflict
114     with the parent-time schedule.
115          [(4)(5) (a) The court shall determine the responsibility for the pick up, delivery, and
116     return of the child [shall be determined by the court] when the parent-time order is entered[,
117     and may be changed].
118          (b) The court may change the responsibility described in Subsection (5)(a) at any time

119     a subsequent modification is made to the parent-time order.
120          [(5)(c) If the noncustodial parent will be providing transportation, the custodial parent
121     shall:
122          (i) have the child ready for parent-time at the time the child is to be picked up [and
123     shall]; and
124          (ii) be present at the custodial home or [shall] make reasonable alternate arrangements
125     to receive the child at the time the child is returned.
126          [(6)(d) If the custodial parent will be transporting the child, the noncustodial parent
127     shall:
128          (i) be at the appointed place at the time the noncustodial parent is to receive the child[,
129     and]; and
130          (ii) have the child ready to be picked up at the appointed time and place[,] or have
131     made reasonable alternate arrangements for the custodial parent to pick up the child.
132          [(7)(6) [RegularA parent may not interrupt regular school hours [may not be
133     interrupted] for a school-age child for the exercise of parent-time [by either parent].
134          [(8)(7) The court may:
135          (a) make alterations in the parent-time schedule to reasonably accommodate the work
136     schedule of both parents [and may]; and
137          (b) increase the parent-time allowed to the noncustodial parent but may not diminish
138     the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.
139          [(9)(8) The court may make alterations in the parent-time schedule to reasonably
140     accommodate the distance between the parties and the expense of exercising parent-time.
141          [(10)(9) [Neither parent-time nor child support is to be withheld due to eitherA
142     parent may not withhold parent-time or child support due to the other parent’s failure to comply
143     with a court-ordered parent-time schedule.
144          [(11)(10) (a) The custodial parent shall notify the noncustodial parent within 24 hours
145     of receiving notice of all significant school, social, sports, and community functions in which
146     the child is participating or being honored[, and the].
147          (b) The noncustodial parent [shall beis entitled to attend and participate fully in the
148     functions described in Subsection (10)(a).
149          [(12)(c) The noncustodial parent shall have access directly to all school reports

150     including preschool and daycare reports and medical records [and shall be notified immediately
151     by the custodial parent].
152          (d) A parent shall immediately notify the other parent in the event of a medical
153     emergency.
154          [(13)(11) Each parent shall provide the other with the parent’s current address and
155     telephone number, email address, and other virtual parent-time access information within 24
156     hours of any change.
157          [(14)(12) (a) Each parent shall permit and encourage, during reasonable hours,
158     reasonable and uncensored communications with the child, in the form of mail privileges and
159     virtual parent-time if the equipment is reasonably available[, provided that if the parties].
160          (b) If the parents cannot agree on whether the equipment is reasonably available, the
161     court shall decide whether the equipment for virtual parent-time is reasonably available[,by
162     taking into consideration:
163          [(a)(i) the best interests of the child;
164          [(b)(ii) each parent’s ability to handle any additional expenses for virtual parent-time;
165     and
166          [(c)(iii) any other factors the court considers material.
167          [(15)(13) (a) Parental care [shall beis presumed to be better care for the child than
168     surrogate care [and the].
169          (b) The court shall encourage the parties to cooperate in allowing the noncustodial
170     parent, if willing and able to transport the children, to provide the child care.
171          (c) Child care arrangements existing during the marriage are preferred as are child care
172     arrangements with nominal or no charge.
173          [(16)(14) Each parent shall:
174          (a) provide all surrogate care providers with the name, current address, and telephone
175     number of the other parent [and shall]; and
176          (b) provide the noncustodial parent with the name, current address, and telephone
177     number of all surrogate care providers unless the court for good cause orders otherwise.
178          [(17)(15) (a) Each parent [shall beis entitled to an equal division of major religious
179     holidays celebrated by the parents[, and the].
180          (b) The parent who celebrates a religious holiday that the other parent does not

181     celebrate shall have the right to be together with the child on the religious holiday.
182          [(18)(16) If the child is on a different parent-time schedule than a sibling, based on
183     Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for
184     parent-time with all the minor children so that parent-time is uniform between school aged and
185     nonschool aged children, is appropriate.
186          [(19)(17) (a) When one or both parents are servicemembers or contemplating joining
187     a uniformed service, the parents should resolve issues of custodial responsibility in the event of
188     deployment as soon as practicable through reaching a voluntary agreement pursuant to Section
189     78B-20-201 or through court order obtained pursuant to Section 30-3-10.
190          (b) [ServicemembersService members shall ensure their family care plan reflects
191     orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed
192     Parents Custody, Parent-time, and Visitation Act.
193          (18) A parent shall immediately notify the other parent if:
194          (a) the parent resides with an individual or provides an individual with access to the
195     child; and
196          (b) the parent knows that the individual:
197          (i) is required to register as a sex offender or a kidnap offender for an offense against a
198     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
199          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
200     Abuse Offender Registry; or
201          (iii) has been convicted of:
202          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
203     or 76-5-208;
204          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
205          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
206     Part 3, Kidnapping, Trafficking, and Smuggling;
207          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
208     Exploitation Act; or
209          (E) an offense that is substantially similar to an offense under Subsections
210     (18)(b)(iii)(A) through (D).

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

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Should I intentionally botch my hair follicle test?

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

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

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

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

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

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

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

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

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

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

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How do I file a response in a divorce if the summons is invalid?

How do I file a response in a divorce if missing the court’s address for filing invalidates the summons?

Be very careful getting cute with procedural technicalities. If you were served with a summons that is defective only because it does not include the address of the courthouse where the underlying action was filed, you may or may not have an argument for defective service of process. But to test that theory you may have to take the risk of being defaulted and then moving to set aside the default and default judgment and hoping you prevail on that motion. That is not a risk I would be willing to take myself. 

What you need to do immediately is consult a good attorney (i.e., a knowledgeable, skilled one) and fast, i.e., before the time in which to file a responsive pleading has expired, so that if you, after conferring with at least one good attorney, determine you need to file something with the court before the responsive pleading time expires you can. 

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

https://www.quora.com/How-do-I-file-a-response-in-a-divorce-if-missing-the-court-s-address-for-filing-invalidates-the-summons/answer/Eric-Johnson-311

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How much should you trust your lawyer? Part 2

This blog is in response to a comment made to a  video entitled How much should you trust your lawyer?

“The biggest problem I’ve encountered with attorneys isn’t legal competence but the “to a hammer, everything looks like a nail” problem. Emotions not motions is often the answer.”

I hear that frequently. And it is a good point, but 1) it means different things to different people and 2) it’s not as good a point an many people (particularly clients of lawyers) think.  

Yes, there are attorneys who stir up trouble and litigate either because they know no other way or because it’s lucrative for them. But there are also attorneys who aren’t afraid to get their hands dirty and do the necessary and difficult work of making the sausage once a dispute is submitted to the court’s for resolution. Many clients find they don’t have the stomach for seeing how the sausage is made. They come to realize they didn’t understand just how difficult, time-consuming, and costly litigation is. Rather than admit that they made a mistake, they will often claim that the lawyers and the legal system are the problem.* 

Many clients want to believe that “if we’d just talk it out, the opposing side and I could work it out.” This is true in some, but not all, cases. If “we can work it out between us ourselves, without involving attorneys and the courts” were true, most people who hire lawyers wouldn’t hire lawyers because they would have no reason and no need to hire lawyers.  

The fact is that many people can’t or won’t resolve their differences voluntarily between them. They take positions that they feel are irreconcilable, and when that happens, one or both of them resorts to litigation. 

Subsequently, the clients who hire lawyers get frustrated (and many times justifiably so) with how needlessly and/or inexplicably expensive, slow/inefficient, and nerve wracking the legal process is. That’s often when the parties on both sides of the dispute suddenly “see the light” and “wonder why” they are engaged in litigation when all they need to do is speak from the heart.  

Experiencing the miseries of litigation often motivates the parties to believe it’s better for them to settle out of court. Somehow they come to see that a dispute that the parties thought was irreconcilable becomes something they can and should quickly and simply compromise.  

*I personally believe that many court procedures and systems are either outright designed or at least administered in such a way as to make the process miserable, so that the parties will settle their case out of court (thus relieving the burden on the legal system). This is wrong, but that doesn’t mean it doesn’t happen.  

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

From: https://www.quora.com/How-much-should-you-trust-your-lawyer/answer/Eric-Johnson-311  

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

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

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

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

prejudice (n.)

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

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

prejudice (v.) 

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

Entries linking to prejudice 

pre- 

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

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

judge (n.) 

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

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

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

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

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Must I hand a cop my license, or just show it?

I get this question a lot, and frankly, I am curious to know the answer myself:  

 If you have a dedicated sleeve in your wallet that holds your driver license (you know, the kind with a window so that you can display your driver license without having to remove it from your wallet), must you remove your license from your wallet during a traffic stop or during questioning when a police officer or highway patrolman tells you you must? 

 I’ve always suspected that the answer is “no” and that if you show your license as it is in your wallet sleeve/window that’s acceptable.  

 Some states actually do have laws that require you to “surrender” your license to the officer/patrolman during a traffic stop, but here is what I could find for Utah (pay particular attention to subsection (1)(b)): 

§53-3-217. License to be carried when driving motor vehicle–Production in court–Violation

 (1)(a) The licensee shall have his license certificate in his immediate possession at all times when driving a motor vehicle. 

 (𝗯) 𝗔 𝗹𝗶𝗰𝗲𝗻𝘀𝗲𝗲 𝘀𝗵𝗮𝗹𝗹 𝗱𝗶𝘀𝗽𝗹𝗮𝘆 𝗵𝗶𝘀 𝗹𝗶𝗰𝗲𝗻𝘀𝗲 𝗰𝗲𝗿𝘁𝗶𝗳𝗶𝗰𝗮𝘁𝗲 𝘂𝗽𝗼𝗻 𝗱𝗲𝗺𝗮𝗻𝗱 𝗼𝗳 𝗮 𝗷𝘂𝘀𝘁𝗶𝗰𝗲 𝗼𝗳 𝗽𝗲𝗮𝗰𝗲, 𝗮 𝗽𝗲𝗮𝗰𝗲 𝗼𝗳𝗳𝗶𝗰𝗲𝗿, 𝗼𝗿 𝗮 𝗳𝗶𝗲𝗹𝗱 𝗱𝗲𝗽𝘂𝘁𝘆 𝗼𝗿 𝗶𝗻𝘀𝗽𝗲𝗰𝘁𝗼𝗿 𝗼𝗳 𝘁𝗵𝗲 𝗱𝗶𝘃𝗶𝘀𝗶𝗼𝗻. 

 (2) It is a defense to a charge under this section that the person charged produces in court a license certificate issued to him and valid at the time of his citation or arrest. 

 (3) A person who violates Subsection (1)(a) or (1)(b) is guilty of an infraction. 

 The way I read subsection (1)(b), “display” is clearly not a synonym for “surrender” or “give” or “take out of your wallet and hand it over to me”. If there are other statutes, ordinances, or regulations that apply in this situation, I do not know what they are. 

 I can’t see a basis for being obligated to hand an officer your license under the general “stopand question (and possibly search) statute: 

§77-7-15. Authority of peace officer to stop and question suspect–Grounds

A peace officer may stop any individual in a public place when the officer has a reasonable suspicion to believe the individual has committed or is in the act of committing or is attempting to commit a public offense and may demand the individual’s name, address, date of birth, and an explanation of the individual’s actions. 

Here’s the law requiring one to have his/her license and registration with him/her when operating a motor vehicle, but it doesn’t require you to hand these documents to the officer: 

41-12a-603.  Operating motor vehicle without license or registration. 

Any person whose license or registration or nonresident’s operating privilege has been suspended or revoked under this chapter and who, during the suspension or revocation drives any motor vehicle upon any highway or knowingly permits any motor vehicle owned by the person to be operated by another upon any highway, except as permitted under this chapter, is guilty of a class C misdemeanor. 

41-1a-214.  Registration card to be exhibited. 

(1)        For the convenience of a peace officer or any officer or employee of the division, the owner or operator of a vehicle is encouraged to carry the registration card in the vehicle for which the registration card was issued and display the registration card upon request. 

(2)        For a vehicle owned by a rental company, as defined in Section 31A-22-311, a person driving or in control of the vehicle may display the vehicle’s rental agreement, as defined in Section 31A-22-311, in place of a registration card. 

This statute provides that one must “exhibit” one’s driver license (“operator’s license”) to a peace officer, but does not require one to deliver it into the officer’s possession: 

41-6a-401.  Accident involving property damage — Duties of operator, occupant, and owner — Exchange of information — Notification of law enforcement — Penalties. 

(3)        Except as provided under Subsection (6), if the vehicle or other property is operated, occupied, or attended by any person or if the owner of the vehicle or property is present, the operator of the vehicle involved in the accident shall: 

(a)        give to the persons involved: 

(i)         the operator’s name, address, and the registration number of the vehicle being operated; and 

(ii)        the name of the insurance provider covering the vehicle being operated including the phone number of the agent or provider; and 

(b)        upon request and if available, exhibit the operator’s license to: 

(i)         any investigating peace officer present; 

(ii)        the operator, occupant of, or person attending the vehicle or other property damaged in the accident; and 

(iii)       the owner of property damaged in the accident, if present. 

And there is this, for drivers of commercial motor vehicles, but it too only provides that one must “display” the license to the officer:

§53-3-404. Requirements to drive commercial motor vehicle

(1) A person may not drive a commercial motor vehicle, unless the person has been issued and is in immediate possession of: 

(a) a CDL license certificate valid for the commercial motor vehicle the person is driving; or 

(b) a valid CDIP license certificate in accordance with Section 53-3-408. 

(2)(a) A licensee shall display a CDL or CDIP license certificate upon demand of a justice court judge, a peace officer, a special function officer, a port-of-entry officer, or a designee of the division. 

(b) It is a defense to a charge under this section that the person charged produces in court a CDL or CDIP license certificate that is issued to the person and valid at the time of the citation or arrest. 

(3) A person may not drive a commercial motor vehicle if the person’s privilege to drive a commercial motor vehicle is: 

(a) suspended, revoked, or canceled; 

(b) subject to a disqualification; 

(c) subject to an out-of-service order; or 

(d) not medically certified as defined in Section 53-3-402. 

(4) A person may not drive a commercial motor vehicle if the commercial motor vehicle is subject to an out-of-service order. 

This statute uses the word “display” only regarding registration and insurance documentation (this statute is lengthy, so I only share excerpts of it):

§41-12a-303.2. Evidence of owner’s or operator’s security to be carried when operating motor vehicle–Defense–Penalties

***** 

(2)(a)(i) A person operating a motor vehicle shall: 

(A) have in the person’s immediate possession evidence of owner’s or operator’s security for the motor vehicle the person is operating; and 

(B) display it upon demand of a peace officer. 

(ii) A person is exempt from the requirements of Subsection (2)(a)(i) if the person is operating: 

(A) a government-owned or leased motor vehicle; or 

(B) an employer-owned or leased motor vehicle and is driving it with the employer’s permission. 

(iii) A person operating a vehicle that is owned by a rental company, as defined in Section 31A-22-311, may comply with Subsection (2)(a)(i) by having in the person’s immediate possession, or displaying, the rental vehicle’s rental agreement, as defined in Section 31A-22-311. 

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

https://www.quora.com/Do-I-need-to-show-up-for-court-if-I-was-never-served-papers-I-live-in-South-Carolina/answer/Eric-Johnson-311 

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Do lawyers approach people in high profile cases to offer their services?

Do lawyers typically approach people who will have high profile cases, like Kyle Rittenhouse, to offer their services?

Some do. Some do because they are allowed by the ethical rules of their jurisdiction to do so. Some do regardless of whether the ethical rules of their jurisdiction to do so (“ambulance chasers”). 

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

https://www.quora.com/Do-lawyers-typically-approach-people-who-will-have-high-profile-cases-like-Kyle-Rittenhouse-to-offer-their-services/answer/Eric-Johnson-311  

 

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Would you want to groom your children to become lawyers?

Would you enlist your children into a pre-law school program which grooms them to become top notch lawyers? 

No. I have gone in the opposite direction. I have told my children (who love dogs and want dogs because their mother and I do not want a dog and have never had a dog) that I will buy each of them a dog, if they promise not to go to law school and become lawyers. The “legal biz” can, and often does, ruin good people who become lawyers. I don’t want to risk my children being ruined by the legal profession. There are some good people in the legal profession, but there aren’t enough good people in it to redeem it, in my opinion. 

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

https://www.quora.com/Would-you-enlist-your-children-into-a-pre-law-school-programme-which-grooms-them-to-become-top-notch-lawyers/answer/Eric-Johnson-311

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What is the basis for everything I have to do for my Utah divorce case?

What is the legal basis for all the hoops I have to jump through in my Utah divorce case?

This is a great question. It’s a question I often ask myself. Here is the answer. 

Why do I have to submit an “affidavit of jurisdiction and grounds”? 

See Utah Code § 30-3-1.  Procedure — Residence — Grounds. 

§ 30-3-1.  Procedure — Residence —Grounds.

(1) Proceedings in divorce are commenced and conducted as provided by law for proceedings in civil causes, except as provided in this chapter. 

(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action. 

(3) Grounds for divorce: 

(a) impotency of the respondent at the time of marriage; 

(b) adultery committed by the respondent subsequent to marriage; 

(c) willful desertion of the petitioner by the respondent for more than one year; 

(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life; 

(e) habitual drunkenness of the respondent; 

(f) conviction of the respondent for a felony; 

(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner; 

(h) irreconcilable differences of the marriage; 

(i) incurable insanity; or 

(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation. 

***** 

(d) In all actions the court and judge have jurisdiction over the payment of alimony, the distribution of property, and the custody and maintenance of minor children, as the courts and judges possess in other actions for divorce. 

 § 30-3-4.  Pleadings — Decree — Use of affidavit — Private records.

(1) 

***** 

(b) A decree of divorce may not be granted upon default or otherwise except upon legal evidence taken in the cause. If the decree is to be entered upon the default of the respondent, evidence to support the decree may be submitted upon the affidavit of the petitioner with the approval of the court. 

(c) If the petitioner and the respondent have a child or children, a decree of divorce may not be granted until both parties have attended the mandatory course described in Section 30-3-11.3 or 30-3-11.4, and have presented a certificate of course completion to the court. The court may waive this requirement, on its own motion or on the motion of one of the parties, if it determines course attendance and completion are not necessary, appropriate, feasible, or in the best interest of the parties. 

(d) All hearings and trials for divorce shall be held before the court or the court commissioner as provided by Section 78A-5-107 and rules of the Judicial Council. The court or the commissioner in all divorce cases shall enter the decree upon the evidence or, in the case of a decree after default of the respondent, upon the petitioner’s affidavit

 § 30-3-10.  Custody of a child — Custody factors.

(1) If a married couple having one or more minor children are separated, or the married couple’s marriage is declared void or dissolved, the court shall enter, and has continuing jurisdiction to modify, an order of custody and parent-time. 

Why do I have to submit an “affidavit of income verification and compliance with child support guidelines”?  

Why do I have to provide all of that information about me, my ex-spouse, and my children

§ 30-3-10.17.  Social security number in court records.

The social security number of any individual who is subject to a divorce decree, support order, or paternity determination or acknowledgment shall be placed in the records relating to the matter.

 § 78B-12-201.  Procedure — Documentation — Stipulation.

(1) In any matter in which child support is ordered, the moving party shall submit: 

(a) a completed child support worksheet; 

(b) the financial verification required by Subsection 78B-12-203(5); 

(c) a written statement indicating whether or not the amount of child support requested is consistent with the guidelines; and 

(d) the information required under Subsection (3). 

(2)  

(a) If the documentation of income required under Subsection (1) is not available, a verified representation of the other party’s income by the moving party, based on the best evidence available, may be submitted. 

(b) The evidence shall be in affidavit form and may only be offered after a copy has been provided to the other party in accordance with Utah Rules of Civil Procedure or Title 63G, Chapter 4, Administrative Procedures Act, in an administrative proceeding. 

(3) Upon the entry of an order in a proceeding to establish paternity or to establish, modify, or enforce a support order, each party shall file identifying information and shall update that information as changes occur with the court that conducted the proceeding. 

(a) The required identifying information shall include the person’s social security number, driver’s license number, residential and mailing addresses, telephone numbers, the name, address and telephone number of employers, and any other data required by the United States Secretary of Health and Human Services.

§ 78B-12-203.  Determination of gross income — Imputed income.

(4)  

***** 

(b) Each parent shall provide verification of current income. Each parent shall provide year-to-date pay stubs or employer statements and complete copies of tax returns from at least the most recent year unless the court finds the verification is not reasonably available. Verification of income from records maintained by the Department of Workforce Services may be substituted for pay stubs, employer statements, and income tax returns. 

Rule Allowing Affidavits 

Utah Rules of Civil Procedure, Rule 104. Divorce decree upon affidavit. 

A party in a divorce case may apply for entry of a decree without a hearing in cases in which the other party fails to make a timely appearance after service of process or other appropriate notice, waives notice, stipulates to the withdrawal of the answer, or stipulates to the entry of the decree or entry of default. An affidavit in support of the decree must accompany the application. The affidavit must contain evidence sufficient to support necessary findings of fact and a final judgment. 

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

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Cameras in court, cheap entertainment or a way to achieve justice?

Are cameras in the courtroom, a cheap form of reality television, or a better way to achieve justice?

This is a subject that is near and dear to my heart, both as a lawyer and as a news reporter. 

It’s not hard to understand why some people would feel uncomfortable having news reporters, including but not limited to video cameras and audio recording devices, in a public court proceeding. Rarely is a lawsuit something that the parties to the lawsuit want to become public knowledge. 

Still, there are at least two very good reasons for cameras in the courtroom that open the courtrooms to greater public access: fostering 1) court accountability; and 2) public education. 

“An educated citizenry is a vital requisite for our survival as a free people.” (author unknown) 

“The requirement of access is particularly important, in two senses. First, law should be epistemically accessible: it should be a body of norms promulgated as public knowledge so that people can study it, internalize it, figure out what it requires of them, and use it as a framework for their plans and expectations and for settling their disputes with others.” (Stanford Encyclopedia of Philosophy) 

And as Justice Brandeis so aptly stated: 

“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” 

These are the reasons why, with rare exception, court proceedings are open to the public. A public that has access to court proceedings are better informed about the legal system and the laws it administers. Denying the public access to court proceedings inherently both breeds suspicion and distrust and sows the seeds of corruption. 

If we don’t make the proceedings of our courts open to public oversight and scrutiny, then they can quickly devolve into star chambers where judges, juries, and lawyers could and would run amok, where justice could and would be perverted and outright denied. We develop and use technology to improve access to every good thing. Greater, easier access to public court proceedings through technology is not and cannot be an exception. 

After balancing the litigants’ and other participants’ desire for privacy against public oversight and scrutiny, if we must on one side or the other, public oversight and scrutiny wins, as well it should. The right of the public to know what goes on in the halls of government is the foundation for First Amendment freedom of the press. Bar the courthouse doors to the press, and you bar the court house doors to the public. 

And in an age when court proceedings are increasingly taking place via remote videoconference (and consequently with less frequency in physical court houses where the people can personally enter the court rooms to observe public court proceedings), the public needs to work harder than ever to ensure public access to public court proceedings is preserved. When members of the public can be excluded from public court proceedings with the simple click of a mouse or stroke of a key, I know from personal experience that many judges can’t or don’t resist the temptation to shut everyone out. There are all kinds of excuses judges will proffer for this undemocratic, unconstitutional, and dangerous behavior, but none hold water. 

As with any technology, cameras in the courtroom can be used for good or ill. But fear of cameras being abused in the courtrooms is no reason to impose an absolute prohibition against cameras and their responsible, beneficial uses in the courtrooms. 

Some try to argue that the mere presence of a camera in a courtroom can make witnesses nervous and self-conscious, thus discouraging them from being candid and forthcoming. The argument is weak. We live in a society where everyone carries a camera with him/her. You can go anywhere without a camera pointed at you in a store, in a parking lot, at school, at work, etc. Indeed, you’d be hard-pressed to find a courtroom of record that does not have at least one hidden camera and microphone in them for security purposes, if for no other reason. While the merits of surveillance culture are debatable, the fact is we are more accustomed to the presence of cameras than we ever have been in history (and that will only deepen over time). Thus, to suggest that the mere presence of cameras recording proceedings in the courtroom would disrupt the proceedings, adversely affect the administration of justice, and generally do more harm than good is simply disingenuous. 

The public not only deserves to know how its courts function, it needs to know how its courts function, if it is to ensure that the courts function properly for the public good. 

To put it more bluntly (but no less sincerely), unobtrusive cameras in the courtroom help keep courtroom proceedings honest. They preserve, even increase, public oversight and scrutiny of court proceedings, which is, on balance, a net benefit to the administration of justice for the public at large. 

It is crucial that the public have access to court proceedings so that the courts are subject to public oversight and accountability. It’s a right. Besides, he or she who would close the courthouse doors to the public would squander opportunities to educate and inform the public about the law and how it is administered properly (and improperly). To close the courthouse doors to the public is to show disrespect and contempt for the public, which can only breed public contempt for and distrust of the courts. 

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

https://www.quora.com/Are-cameras-in-the-courtroom-a-cheap-form-of-reality-television-or-a-better-way-to-achieve-justice/answer/Eric-Johnson-311  

 

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Law from a legal assistant’s point of view, week 24: Legal reform

By Quinton Lister, legal assistant 

As a legal assistant who is relatively wet behind the ears, my thoughts on legal reform will likely seem naïve. With that as a disclaimer, here are my thoughts on legal reform. 

Legal reform is needed but some seem to question the efficacy of using the traditional means of legal reform to correct the flaws in the current system. Here is why it is a bad idea to seek reform by non-traditional, “revolutionary” means:  

  1. “Burn it down and start over” thinking could move us farther away from the Constitution which has proven, despite its limitations and flaws, to be the most effective instrument of regulating earthly justice and freedom ever invented yet. 
  1. A completely new justice system would surely suffer from more flaws, weaknesses, and unintended consequences than the current system (a system that appears to me to be fairly well designed but badly administered). It doesn’t seem wise to lose the progress we have made to this point by risking it on a completely new set of problems incident to a completely new and untried system.  

Besides, the essence of legal reform lies within individuals themselves. We need good people more than we need good laws. Good people govern themselves and do not need a rule or a statute in order to make progress. They know what is right and wrong and they are willing to change if they know they are wrong or learn that they have been mistaken in their actions. Justice is not mere vengeance. Mercy is not mere leniency. Good citizens behave well regardless of whether laws dictate good behavior.  

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

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What is a court proceeding?

According to Black’s Law Dictionary (11th ed. 2019): 

PROCEEDING 

proceeding (16c) 1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 

  1. Any procedural means for seeking redress from a tribunal or agency.
  2. An act or step that is part of a larger action.
  3. The business conducted by a court or other official body; a hearing.
  4. Bankruptcy. A particular dispute or matter arising within a pending case — as opposed to the case as a whole.

“‘Proceeding’ is a word much used to express the business done in courts. A proceeding in court is an act done by the authority or direction of the court, express or implied. It is more comprehensive than the word ‘action,’ but it may include in its general sense all the steps taken or measures adopted in the prosecution or defense of an action, including the pleadings and judgment. As applied to actions, the term ‘proceeding’ may include — (1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat; (4) the pleadings; (5) the taking of testimony before trial; (6) all motions made in the action; (7) the trial; (8) the judgment; (9) the execution; (10) proceedings supplementary to execution, in code practice; (11) the taking of the appeal or writ of error; (12) the remittitur, or sending back of the record to the lower court from the appellate or reviewing court; (13) the enforcement of the judgment, or a new trial, as may be directed by the court of last resort.” Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3–4 (2d ed. 1899). 

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

https://www.quora.com/What-is-a-court-proceeding/answer/Eric-Johnson-311  

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Law from a legal assistant’s point of view, week 21: Never

By Quinton Lister, legal assistant

I am still new at my job. I have only been a legal assistant since Summer of 2021, but I know for myself that I would never go to court representing myself. There is simply too much going on in the legal system to not have expert help.  

Perhaps you think I am biased because my boss is a lawyer, but I have been to enough hearings and a few trials to know that “Pro Se” ain’t the way to go. Pro Se litigants are at a tremendous disadvantage simply because they do not know what they do not know. Many people elect to represent themselves due to financial constraints, while this is completely understandable, I feel for these people. They are at the mercy of a system that kills the weak (for lack of a more flattering term). The legal system seems more often to create victims rather than protect them. True justice is hard work, and if you are not trained, no matter how hard you work the load will likely be too much to bear by yourself. 

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

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What is a court order and its types?

Here’s the definition from Black’s Law Dictionary (11th ed. 2019): 

ordern. (16c) 1. A command, direction, or instruction. See MANDATE (1). 2. A written direction or command delivered by a government official, esp. a court or judge. • The word generally embraces final decrees as well as interlocutory directions or commands. — Also termed court order; judicial order. See MANDAMUS. 

“An order is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings.” 1 Henry Campbell Black, A Treatise on the Law of Judgments § 1, at 5 (2d ed. 1902). 

“While an order may under some circumstances amount to a judgment, they must be distinguished, owing to the different consequences flowing from them, not only in the matter of enforcement and appeal but in other respects, as, for instance, the time within which proceedings to annul them must be taken. Rulings on motions are ordinarily orders rather than judgments. The class of judgments and of decrees formerly called interlocutory is included in the definition given in [modern codes] of the word ‘order.’” 1 A.C. Freeman, A Treatise of the Law of Judgments § 19, at 28 (Edward W. Tuttle ed., 5th ed. 1925). 

What kinds of orders are common in a Utah divorce action? Again, I defer to Black’s Law Dictionary: 

- enforcement order. A court’s order issued to compel a person or entity to comply with a statute, regulation, contract provision, previous court order, or other binding authority. 

- ex parte order (eks pahr-tee) (18c) An order made by the court upon the application of one party to an action without notice to the other. 

- final order. (16c) An order that is dispositive of the entire case. See final judgment under JUDGMENT (2). 

- final judgment. (18c) A court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fees) and enforcement of the judgment. — Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order. 

– income-withholding order (1986) A court order providing for the withholding of a person’s income by an employer, usu. to enforce a child-support order. — Abbr. IWO. — Also termed wage-withholding order; wage-assignment order; wage assignment. Cf. attachment of wages under ATTACHMENT (1). 

- interim order. (18c) 1. A temporary court decree that remains in effect for a specified time or until a specified event occurs. 2. See interlocutory order. 

- interlocutory order (in-tər-lok-yə-tor-ee) (17c) An order that relates to some intermediate matter in the case; any order other than a final order. • Most interlocutory orders are not appealable until the case is fully resolved. But by rule or statute, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class-certification orders) to be immediately appealed. — Also termed interlocutory decision; interim order; intermediate order. See appealable decision under DECISION (1); COLLATERAL-ORDER DOCTRINE. 

- maintenance order. See SUPPORT ORDER. 

– support order (1948) A court decree requiring a party (esp. one in a divorce or paternity proceeding) to make payments to maintain a child or spouse, including medical, dental, and educational expenses. — Also termed maintenance order. 

- foreign support order. (1948) An out-of-state support order. 

- minute order. (1918) 1. An order recorded in the minutes of the court rather than directly on a case docket. • Although practice varies, traditionally when a trial judge is sitting officially, with or without a court reporter, a clerk or deputy clerk keeps minutes. When the judge makes an oral order, the only record of that order may be in the minutes. It is therefore referred to as a minute order. — Also termed minute entry. 2. A court order not directly relating to a case, such as an order adopting a local rule of court. • In this sense, the court is not a single judge acting in an adjudicatory capacity, but a chief judge, or a group of two or more judges, acting for a court in an administrative or some other nonadjudicatory capacity. 

- modification order (1936) Family law. A post-divorce order that changes the terms of child support, custody, visitation, or alimony. • A modification order may be agreed to by the parties or may be ordered by the court. The party wishing to modify an existing order must show a material change in circumstances from the time when the order sought to be modified was entered. See CHANGE IN CIRCUMSTANCES. 

- pretrial order (1939) A court order setting out the claims and defenses to be tried, the stipulations of the parties, and the case’s procedural rules, as agreed to by the parties or mandated by the court at a pretrial conference.  

- emergency protective order. (1976) A temporary protective order granted on an expedited basis, usu. after an ex parte hearing (without notice to the other side), most commonly to provide injunctive relief from an abuser in a domestic-violence case; esp., a short-term restraining order that is issued at the request of a law-enforcement officer in response to a domestic-violence complaint from a victim who is in immediate danger. • A victim of domestic violence can obtain an EPO only through a law-enforcement officer. There is no notice requirement, but the abuser must be served with the order. The duration of an EPO varies from three to seven days, depending on state law. — Abbr. EPO. Cf. TEMPORARY RESTRAINING ORDER. 

- permanent protective order. (1981) A protective order of indefinite duration granted after a hearing with notice to both sides; esp., a court order that prohibits an abuser from contacting or approaching the protected person for a long period, usu. years. Despite the name, permanent orders often have expiration dates set by state law. An order may also require the abuser to perform certain acts such as attending counseling or providing financial support for the protected person. — Abbr. PPO. 

– qualified domestic-relations order (1984) A state-court order or judgment that relates to alimony, child support, or some other state domestic-relations matter and that (1) recognizes or provides for an alternate payee’s right to receive all or part of any benefits due a participant under a pension, profit-sharing, or other retirement benefit plan, (2) otherwise satisfies § 414 of the Internal Revenue Code, and (3) is exempt from the ERISA rule prohibiting the assignment of plan benefits. • Among other things, the QDRO must set out certain facts, including the name and last-known mailing address of the plan participant and alternate payee, the amount or percentage of benefits going to the alternate payee, and the number of payments to which the plan applies. The benefits provided under a QDRO are treated as income to the actual recipient. IRC (26 USCA) § 414(p)(1)(A); 29 USCA § 1056(d)(3)(D)(i). — Abbr. QDRO. 

– restraining order (1876) 1. A court order prohibiting family violence; esp., an order restricting a person from harassing, threatening, and sometimes merely contacting or approaching another specified person. • This type of order is issued most commonly in cases of domestic violence. A court may grant an ex parte restraining order in a family-violence case if it is necessary to (1) achieve the government’s interest in protecting victims of family violence from further abuse, (2) ensure prompt action where there is an immediate threat of danger, and (3) provide governmental control by ensuring that judges grant such orders only where there is an immediate danger of such abuse. — Also termed protective order; order of protection; stay-away order. See ex parte motion under MOTION (1). 2. TEMPORARY RESTRAINING ORDER. 3. A court order entered to prevent the dissipation or loss of property. 

- scheduling order. (1959) A court’s order that sets the time deadlines for different procedural actions in a case, such as amending pleadings, filing motions, and completing discovery. 

- separation order. (1882) A court order granting a married person’s request for a legal separation. See SEPARATION AGREEMENT (1). 

- show-cause order. (1925) An order directing a party to appear in court and explain why the party took (or failed to take) some action or why the court should or should not impose some sanction or grant some relief. — Abbr. SCO. — Also termed order to show cause (OSC; OTSC); rule to show cause; show-cause rule. 

- supervision order. (1938) Family law. A court’s order placing a child or young person under the supervision of a child-welfare agency or a probation officer in a case of neglect, abuse, or delinquency. 

– support order (1948) A court decree requiring a party (esp. one in a divorce or paternity proceeding) to make payments to maintain a child or spouse, including medical, dental, and educational expenses. — Also termed maintenance order. 

- foreign support order. (1948) An out-of-state support order. 

- temporary order. (1808) A court order issued during the pendency of a suit, before the final order or judgment has been entered. 

– temporary restraining order (1861) 1. A court order preserving the status quo until a litigant’s application for a preliminary or permanent injunction can be heard. • A temporary restraining order may sometimes be granted without notifying the opposing party in advance. Cf. emergency protective order under PROTECTIVE ORDER. 2. See ex parte injunction under INJUNCTION. — Abbr. TRO. — Often shortened to restraining order.  

- visitation order (1944) Family law.1. An order establishing the visiting times for a noncustodial parent with his or her child. 2. An order establishing the visiting times for a child and a person with a significant relationship to the child. • Such an order may allow for visitation between (1) a grandparent and a grandchild, (2) a child and another relative, (3) a child and a stepparent, or (4) occasionally, a child and the child’s psychological parent. — Also termed access order. 

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

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Erring on the side of caution is not merely cowardly, it is evil

Erring on the side of caution is not merely cowardly, not merely corrupt, it is evil. 

We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. 

But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever. 

— John Adams  

(emphasis added) 

Erring on the side of caution when it comes to allegations of spousal and/or child abuse is a blatant violation of the preponderance of evidence standard. When courts err on the side of caution, when they take a better safe than sorry approach to allegations of spousal or child abuse, they aren’t doing anything virtuous, but the polar opposite. The guilty until proven innocent approach is a violation of the other spouse’s/parent’s civil rights. Any judge who issues a restraining order or protective order or supervised parent time order on the basis of erring on the side of caution has committed misconduct. Such is clear error and grounds for appeal from “correctness” (the appellate court decides the matter for itself and does not defer in any degree to the trial judge’s determination of law [1]to “abuse of discretion” (when a serious inequity has resulted [2], when a judge acts outside the law [3], when a ruling is beyond the limits of reasonability [4], is inherently unfair [5], fails to consider all the legally relevant factors [6]and all the way up to “clearly erroneous” (findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court’s determination [7] and findings are clearly erroneous if they are against the clear weight of the evidence or if the appellate court reaches a definite and firm conviction that a mistake has been made. [8]). [9]  

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

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Law from a legal assistant’s point of view, week 19: Litigation

By Quinton Lister, legal assistant

Litigation is not fun. It’s anything but fun. Now, I am not a lawyer and I have only been a legal assistant since this past summer, and that’s the sum total of my experience with the legal system to this point in my life. But even then, I feel that I know enough to say that litigating is hard and I see why people hire lawyers when they’re involved in litigation. I am not a naturally argumentative person. I do not really go looking for arguments and I do not enjoy arguing because the point of arguing is to show why you are right and the other person is wrong, and I prefer to stay out of stuff like that because I do not feel qualified to say someone is right or wrong (even if it is as clear as day). So, what on Earth is driving me to want to pursue law? It seems like I would hate it as a career, so why would I bother seeking to gain more knowledge in that area? 

Well, I might be a fool, but as much as I hate arguing, I hate to see other people become victims of the very system that claims to defend their rights even more. I hate seeing other people being taken advantage of by people who are supposed to be watching out for that person’s best interests (I am talking about lawyers and judges). It is cliché now to suggest that the system is broken (which is only causing people to be more complacent about the broken system), but I think people deserve to be treated like people and when we do not stand up for the rights of all people we eventually stand up for the rights of none (also cliché, but no less true; in fact, all the more true because it’s fallen to the level of cliché).  

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

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