rprise that it usually takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing the client won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks them. No witnesses are called to testify in hearing conducted by proffer; instead, their testimony is provided by affidavit or verified declaration.
If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.
This is an interesting question because if you have been financially independent of your spouse during your five year separation that implies that you don’t need financial support from your spouse.
Contrastingly, if for the past five years you have been destitute, have made requests of your spouse for financial support that your spouse has rejected, and have run up debts and other liabilities to meet your reasonable living expenses, then you would likely have a very strong basis for seeking alimony.
If, however, you have been separated from your spouse for five years and counting without having to rely for your financial support on a source other than your own income or other earnings in all that time, it is hard to imagine how you could make a compelling argument for deserving and alimony award.
One exceptional situation needs to be mentioned: if you have been self-supporting, but at a greatly reduced/lesser lifestyle, (i.e., you went from living at a certain level with your spouse because of your spouse’s affluence and ability to afford such a lifestyle to living more modestly on a modest income), then it may be possible for you to argue that you are entitled to alimony so that you can reach, or at least get as close as reasonably possible to, the lifestyle to which he became accustomed while married. One counter argument you could encounter (and I believe this argument would have merit) is that you have been self-supporting for so long — albeit at a lower level of income than you enjoyed before separation — that one can reasonably conclude that your change in lifestyle is no longer involuntary imposed upon you but a matter of your own personal choice.
And let’s and on a note of adding insult to injury: imagine that you had no choice but to pull yourself up by your own bootstraps after separation because your spouse refused to provide any financial support for you. Could you make some kind of argument that but for your spouse’s greedy neglect, you would have never needed to become self-supporting? In my legal opinion, the answer is: probably not. The court would not be looking to how or why you became self-supporting, and whether the circumstances under which you became self-supporting were “fair,” but only that you are now currently self-supporting.
Bottom line: if you have been living financially independent of your spouse for the past five years and counting, and if you are not living hand to mouth, it is unlikely that you will succeed in seeking and alimony award.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Must I engage in all-day mediation in my divorce action, or for some other specific time period?
No, there is no mandatory minimum period of time you must spend in mediation. You don’t have to stay in all-day mediation or for half a day or for any specific period of time. All you are required to do is engage in mediation in good faith. Here’s the applicable statute:
Utah Code Section 30-3-39. Mediation program.
(2) If, after the filing of an answer to a complaint of divorce, there are any remaining contested issues, the parties shall participate in good faith in at least one session of mediation. This requirement does not preclude the entry of pretrial orders before mediation takes place.
If you want to attempt to reach a settlement agreement and spend half a day or all day trying, you certainly can, BUT you are under no obligation to do that. If after just a few minutes of good faith effort you conclude (in good faith) that you don’t believe a fair settlement will be reached, you can stop. You don’t have to keep trying to settle for the sake of trying to settle.
Indeed, one of the biggest mistakes you can make in your divorce case is placing way too much faith reaching a settlement.
Many people, including their attorneys, count on settlement (the prospect of going to trial is unthinkable to them), which then leads these people to value settlement settlement’s sake. In other words, litigants and their attorneys become so focused on reaching settlement — any settlement — that they lose sight of the fact that the purpose of negotiating isn’t just settlement, but getting an outcome as good as or better than what they reasonably (even conservatively) believe they could/should achieve at trial. If your settlement isn’t better than what you would get at trial, then your settlement (and all the time and effort and money you put into it) is a waste. Other people are so desperate to settle (out of fear of trial or for other reasons) that they engage in all-day mediation out of the mistaken believe they can somehow bring about a fair settlement by sheer force of will. Either way, it leads to fruitless and costly all-day mediation.
It is not lost on me that many people have to make lousy settlements in their divorce actions because they simply run out of money or willpower to keep fighting.
People who settle out of exhaustion cannot be faulted for making lousy settlement deals when a lousy settlement is the best they could hope for. What many divorcing people forget, however, is that their spouses are usually in the same position. If you can just hold on a little longer, outwork and outlast just that little bit more, that’s when the fair offer is finally made or accepted.
Finally, there are those who settle on unfair terms because they have no better option and they absolutely know it. These are the people who settle because their spouses’ superhuman levels of tenacity born of unimaginable evil and mental and emotional instability. These are people who know that their spouses will never abide by any agreement, never abide by any court order. Those who are married to such monsters reach settlement simply to bring the divorce litigation to an end (or more accurately, in the hope of bringing the divorce litigation to an end).
Utah Family Law, LC | divorceutah.com | 801-466-9277
While it is true that some lawyers write up needlessly long divorce documents just to pad their bills, even the most efficient and honest lawyers often find themselves having to draft (write) documents that are longer than most people want them to be.
Why? You can answer this question yourself with this simple experiment:
Draft (write) up what you want the terms of your divorce to be, ensuring that it’s clear and complete and leaves out nothing that is important to you, understanding that if your court order is not clear and complete and does not cover every issue that is important to you, then it may be difficult to enforce, perhaps impossible to enforce. And if you forgot to include a particular provision or particular provisions, you’re out of luck as to those issues.
Then see just how short or long your document is.
Utah Family Law, LC | divorceutah.com | 801-466-9277