BLANK

Tag: litigation

Are couples with prenups more likely to divorce?

Research is hard to come by. Reliable research even harder. But here is what I could find in short order (how accurate it is I cannot say):

https://psycnet.apa.org/record/2017-23543-004

Maybruch, C., Weissman, S., & Pirutinsky, S. (2017). Marital outcomes and consideration of divorce among Orthodox Jews after signing a religious prenuptial agreement to facilitate future divorce. Journal of Divorce & Remarriage, 58(4), 276–287. https://doi.org/10.1080/10502556.2017.1301152

Abstract

This study examined marital satisfaction, marital adjustment, and consideration of divorce among Orthodox Jews in North America (N = 2,652). These marital outcomes were compared for individuals who signed or did not sign a religious prenuptial agreement that facilitates a woman’s future ability to receive a religious divorce from her husband. Results indicated a higher level of marital satisfaction among those who signed the religious prenuptial agreement, and no significant difference in marital adjustment or tendency to consider divorce between groups of individuals who signed or did not sign the religious prenuptial agreement. (PsycINFO Database Record (c) 2017 APA, all rights reserved)

http://www.law.harvard.edu/programs/olin_center/papers/pdf/436.pdf

https://news.harvard.edu/gazette/story/2003/10/for-many-prenups-seem-to-predict-doom/

This paper did not address the question of whether prenuptial agreements lead to divorce, but, among the other subject it touches, “discusses two major explanations for the paucity of prenuptial agreements: underestimation of the value of prenuptial agreements, especially due to false optimism that marriages will last; and a belief that discussing prenuptial agreements would signal uncertainty about marriage.”

In the event of divorce – statistically, the reality for nearly half the marriages in America – a prenuptial agreement has the potential to save the divorcing couple anguish, arguments, and thousands of dollars. It may represent an exit agreement far closer to their wishes than the court-ordered divorce. A good prenuptial agreement can even exert a positive force on a healthy marriage.

https://sccur.csuci.edu/abstract/viewabstract/fear-and-loathing-in-marriage-the-psychological-and-financial-destruction-caused-by-prenuptial-.htm

Fear and Loathing in Marriage: The Psychological and Financial Destruction Caused by Prenuptial Author: Anne Cominsky Mentor: Kurt Meyer, Professor of English, Irvine Valley College Historically, prenuptial agreements as a condition of saying “I do” were sought out by the economically stronger partner as financial protection from divorce. Currently, legal experts and financial advisors agree the general use of prenuptial agreements is on the rise. A random poll suggests that over half of the general public view prenuptial agreements favorably.

https://www.nytimes.com/roomfordebate/2013/03/21/the-power-of-the-prenup/if-you-want-a-prenup-you-dont-want-marriage

If You Want a Prenup, You Don’t Want Marriage

If you’re thinking about a prenup, or — worse yet — your intended is pushing a prenup on you, you might as well go ahead and just cancel the wedding. There’s an easier way to keep your assets and income separate: it’s called cohabitation. In most states, cohabiting partners are free to walk away from their relationship with their income and assets intact, all without the hassle and expense of a divorce. There’s an easier way to keep your assets and income separate: it’s called cohabitation. But if you’re truly in love, and you wish to share your life, your body, your children and your checkbook with your beloved “till death do you part,” marriage is generally the ticket. Marriage is about establishing a common life together, about putting someone else ahead of yourself, and sharing the things that mean the most to you, including your money. And, paradoxically, if you take this other-centered approach to marriage, you’re not only less likely to divorce, but also to enjoy a happier relationship. My research suggests that couples who embrace a generous orientation toward their marriage, as well as those who take a dim view of divorce, are significantly more likely to be happy in their marriages. A National Center for Family and Marriage Research study finds that couples who share joint bank accounts are less likely to get divorced. In fact, married couples who do not pool their income are 145 percent more likely to end up in divorce court, compared to couples who share a bank account. So, the kind of partners who wish to hold something back from their spouse in a marriage — emotionally, practically and financially — and to look out for No. 1 instead are more likely to end up unhappy and divorced. If that is your aim in marrying, go ahead and get a prenup. But if you wish to experience the best that marriage has to offer, find a partner who is willing to give everything to you, and do the same for them. Your odds of finding wedded bliss will be higher than your peers with prenups. Join Opinion on Facebook and follow updates on twitter.com/roomfordebate .

https://www.divorcenet.com/states/nationwide/five_realities_about_prenuptial_agreements

5 Prenuptial Pitfalls to Consider — Having One May be Bad for Your Marriage | DivorceNet

For what it’s worth, now that you have some research data: in the course of my cursory research I noticed a distinct bias in the articles that claim that prenuptial and postnuptial agreements do not encourage divorce/discourage marriage. I believe that any intellectually honest person would conclude that for the vast majority of young, unmarried people contemplating marriage for the first time and who aren’t celebrities, or rich or in some other exceptional category contemplating marriage, a prenuptial agreement raises red flags and tends to raise doubts as to the other party’s commitment to marriage.

Pro-prenuptial agreement articles gloss over the red flags. They claim prenuptial agreements “”clear the air, “help break the ice about discussing finances”, and “reduce acrimonious litigation in the event of divorce” rather transparently strain credulity to make those arguments stick.

(48) Eric Johnson’s answer to Are couples with prenups more likely to divorce? – Quora

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

Tags: , , , , , ,

Special masters, parent coordinators, and the infantilization of parents

Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.

The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.

In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.

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

Tags: , , , , , ,

Can someone legally move out without notice and turn off utilities?

The judge finalized our divorce a month ago. My ex-husband decided to move out without any notice and then he turned off all utilities service. Can he legally do that without saying anything?

It depends upon 1) the rules and statutes that apply in your jurisdiction; and 2) the provisions in your decree of divorce (and related orders, if in your jurisdiction divorces end with multiple orders, as opposed to all of the orders in one “Decree of Divorce” document). 

For example, in the jurisdiction where I practice divorce and family law (Utah), there is no law that specifically prevents a divorced spouse from canceling the accounts for the household utilities.* Indeed, if, in a divorce proceeding, the house is awarded to one of the spouses and the other spouse must now move out, many such divorced spouses have good reason for canceling the accounts for the household utilities, and that is to ensure they are no longer billed and held liable for utilities for a house in which they no longer reside.  

If the provisions in your decree of divorce (and related orders, if in your jurisdiction divorces end with multiple orders, as opposed to all of the orders in one “Decree of Divorce” document) prohibit one’s ex-spouse from canceling or otherwise interfering with the other’s utilities, then the affected ex-spouse could move the court to hold the offending ex-spouse in contempt of court and seek to have the offending ex-spouse sanctioned for contempt.  

Now clearly there are usually better ways of handling the situation than secretly closing the accounts notifying the ex-spouse after the fact or not telling the other spouse at all and letting him/her discover it on his/her own, but just because it’s ill-mannered does not make illegal. And if there is no provision in the decree of divorce or related orders that don’t expressly prohibit you and your ex from canceling the utilities that are presumably in your joint names (because you presumably open the accounts when you were married to each other), there may be nothing (and their likely is nothing) that you could do through the courts to punish your ex-spouse for his/her actions.

———————————

*If a divorced couple has minor children, it might be possible to argue that cutting off the utilities to the house could constitute child abuse under Utah Code § 76-5-109. If the couple has a disabled child, one might argue that canceling the utilities account(s) is abuse or neglect of a disabled child. § 76-5-110 (Abuse or neglect of a child with a disability). I don’t know if one could argue that canceling the utilities to the house could be construed as “criminal mischief” as defined in Utah Code § 76-6-106(2)(b)(i)(A) or (B) or (ii). 

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

https://www.quora.com/The-judge-finalized-our-divorce-a-month-ago-My-ex-husband-decided-to-move-out-without-any-notice-and-then-he-turned-off-all-utilities-service-Can-he-legally-do-that-without-saying-anything/answer/Eric-Johnson-311  

Tags: , , , , , , ,

Law from a legal assistant’s point of view, week 38: Arb-med, part II

By Quinton Lister, legal assistant

Last week I wrote a post about Arb-med and how it can benefit practitioners of law, particularly family law. In this post I will be addressing the specific benefits of Arb-med to those who are going through divorce.

  1. Arb-med is faster than litigation. While any case, no matter what form of resolution you seek, can drag out, arb-med is streamlined to work to a resolution as efficiently as possible. After you are done arbitrating you move straight to mediation.
  2. Arb-med is cheaper than litigation. A major benefit of the efficient design of arb-med is that it costs significantly less than litigating your case. Avoiding unnecessary debt is a huge bonus.
  3. Arb-med generates better resolutions than litigation. Most judges do not have the time nor the specific expertise required to always get the judgment right in a given divorce case. Arb-med puts your case in the hands of an experienced family law practitioner with both the time and expertise to get the judgment right.

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

Tags: , , , , , , , ,

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  

Tags: , , , , , , , , ,

Should I pay my lawyer to talk to the attorney of the other party? He spent 3 hours last week responding to 12 emails from the other lawyer and I need to pay him for this time. At this rate I my lawyer will become a secretary and I will be bankrupt.

Should I pay my lawyer to talk to the attorney of the other party? He spent 3 hours last week responding to 12 emails from the other lawyer and I need to pay him for this time. At this rate I my lawyer will become a secretary and I will be bankrupt.

This is a great question.

Clearly, if the opposing lawyer is trying to run up the costs of the litigation by calling or corresponding with your attorney excessively, so that your attorney has to take the calls and/or write responses to all of the correspondence, that opposing lawyer is playing dirty.

Still, some cases are expansive and/or complicated and may require a great deal of back and forth between attorneys as a reasonable and necessary part of the litigation process.

If your case is the kind that doesn’t require anything close to the amount of calls and emails the opposing side is sending to your attorney, if it is clear that the volume of the opposing attorneys communications are excessive and engaged in in bad faith, you are not obligated to suffer it.

One way that your attorney and you may be able to remedy this problem would be by having your attorney send opposing counsel an email like this:

Dear opposing counsel,

It is clear to any reasonable person that the frequency and volume of your telephone calls and/or written correspondence with our office are unnecessary, unduly burdensome and oppressive, and engaged in in bad faith. My client cannot afford to have my staff or me take such calls and read and/or respond to every one of such written correspondence. Consequently, my client has now directed my staff and me to:

  • spend no more than five minutes per week taking calls from anyone at your office; and
  • read and/or respond to written communications from your office totaling no more than 250 words.

If in a given week you honestly believe you need more than five minutes to speak with me; and/or more than 250 words to communicate in writing to me, my client requires that you send me an email (no printed letters, no faxes) stating a clear and concise explanation why. No one at the office will read your email but I will forward it to my client to determine whether [he/she] authorizes me that week to speak with you for more than five minutes and/or review and/or respond to more than 250 written words from you.

If you have any questions regarding this policy, you are welcome to call me and discuss them with me for up to five minutes this week and/or email me with your questions this week, so long as your email is no more than 250 words in length.

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

https://www.quora.com/Should-I-pay-my-lawyer-to-talk-to-the-attorney-of-the-other-party-He-spent-3-hours-last-week-responding-to-12-emails-from-the-other-lawyer-and-I-need-to-pay-him-for-this-time-At-this-rate-I-my-lawyer-will-become-a/answer/Eric-Johnson-311?prompt_topic_bio=1

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Practically speaking (and in my experience), yes and no.

I’ll start with the “no” part of my answer because it’s short. I say “no” because although there are rules against frivolous, bad-faith litigation (such as litigation based on lies), these rules are shamefully under-enforced. So even if you can make a clear case for an opposing party engaging in frivolous, bad-faith litigation, in my experience courts rarely punish such behavior. It’s one of the main reasons people lose faith in the legal system when they find themselves subject to the system.

The best way to protect yourself from having a court believe the opposing party’s lies is to prove them false by objective, independently verifiable evidence that cannot be denied. So, document your words and deeds six ways from Sunday. If it’s not a close call, the opposing side’s efforts to cheat won’t make any difference.

And here’s my “yes” part of the answer: Most jurisdictions, including the jurisdiction in which I practice law (Utah), have a rule or rules that is intended to prevent frivolous litigation. One such rule in Utah is the Utah Rules of Civil Procedure rule 11 (which is almost identical to the Federal Rules of Civil Procedure rule 11). Utah’s rule 11 provides:

(b) Representations to court. By presenting a pleading, written motion, or other paper to the court (whether by signing, filing, submitting, or advocating), an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

(b)(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(b)(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(b)(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(b)(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that paragraph (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated paragraph (b) or are responsible for the violation.

There are also laws against making frivolous and bad-faith claims. Utah’s law is:

78B-5-825. Attorney fees — Award where action or defense in bad faith — Exceptions.

(1) In civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith, except under Subsection (2).

(2) The court, in its discretion, may award no fees or limited fees against a party under Subsection (1), but only if the court:

(a) finds the party has filed an affidavit of impecuniosity in the action before the court; or

(b) the court enters in the record the reason for not awarding fees under the provisions of Subsection (1).

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

https://www.quora.com/Are-there-laws-that-protect-one-parent-from-being-a-victim-of-the-other-parents-continuous-reporting-through-the-other-parents-attorney-about-violations-of-a-restraining-order-that-are-all-lies/answer/Eric-Johnson-311

=1

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Why do pro se litigants fail so often?

Why do pro se litigants fail so often? And if you’re wondering what a pro se litigant is, here’s the definition:

someone who argues his/her own case in a lawsuit, rather than having a lawyer represent him/her and do the legal work for him/her. “Pro se” is Latin for “on behalf of oneself”.

So why do pro se litigants fail so often? This is a great question and one that you should ask, if you haven’t already. You may be wondering if you should go the pro se route yourself. It’s a perfectly fair question for your to ask. Many lawyers will “answer” this question with an Emperor’s New Clothes kind of response, i.e., “Oh, come on, are you really thinking representing yourself? That’s crazy. Surely you see that.”

Others are little more sophisticated and give you that “You wouldn’t try to remove your own appendix, would you? No, you’d hire a pro!” But that doesn’t really answer your question either.

Is it too hard to represent yourself in court in a divorce case? Is it more trouble than it’s worth? Is it a question of “yes, I could do it myself, but should I?”

See, with rare exception, virtually every divorce attorney won’t tell you what you really want to know because they are afraid you will determine that once you know you will decide not to hire an attorney. I am not afraid of that. With that stated, here is the truth:

No matter how well prepared you are and how well you know the argument and how good your argument is, there’s a very good chance that your arguments will fall fully or partially on deaf ears. Why?

Because pro se litigants generally do such a terrible job that courts have low and negative expectations of pro se litigants generally. As a result, courts often just put up mental and emotional walls at the very mention of “pro se litigant”. That’s too bad. It’s unfair to the pro se litigants who know what they’re doing and do it well.

But the fact of the matter is that so many crazy and ill-prepared, rambling, incoherent pro se litigants have passed through the courthouses that they’ve spoiled it for everyone else.

If you’re a well prepared well-versed pro se litigant, you’re just not going to be received as well and taken as seriously as someone who shows up in court with a competent lawyer.

Wait, am I saying that sometimes you need a lawyer, if only as a prop? Yes. Exactly. That’s what I’m saying (now don’t get the idea that it’s because law is easy–it’s not; while I concede it is not rocket science it still takes a lot of time, effort, brains, patience, and thick skin to learn, understand, and apply effectively). It might even be better for you simply to prepare a script for your prop lawyer to read if you want to ensure that your argument is heard and understood and taken seriously. It’s a reason for why you need a lawyer (and need to pay that lawyer) that most lawyers and courts don’t want to admit, but it’s no less true.

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

Tags: , , , , , , , ,
Click to listen highlighted text!