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Tag: mediation

What’s wrong with divorce mediation in Utah?

Much.

And much that you can prevent, once you know what to avoid, what to do, and why.

Profiteering mediators. It’s hard to find anyone selling goods or services these days who isn’t trying to take advantage of the client or customer. Mediators (not all mediators, but many—more than I’d care to admit) are no exception.

Overworked, understaffed judges that don’t want to do their jobs, and so they pressure divorce litigants into settling. I’ve personally witnessed judges and commissioners telling divorce litigants that they should settle because “I [the judge] will probably do a worse job with your case than you can.”

A fundamental misunderstanding of how and why successful mediation succeeds. Courts and lawyers have lost sight of what makes for good mediation, i.e., conflict resolution that is faster, less expensive, less acrimonious, more suited to the particular circumstances of the family, and more likely to result in less future litigation.

“Shuttle mediation”. If you are preparing for your divorce mediation, learn about shuttle mediation and avoid it.

  • With rare exception (such as when a party is truly terrified of being in the same room with another, or if there is a protective order in place that bars the parties from being in each other’s physical presence), shuttle mediation is an inexcusable waste of time, money, and duplicative effort.
  • Shuttle mediation at least doubles the time a mediation would otherwise take were the parties speaking to each other across the same table or in the same Zoom meeting.
  • Because the only participant in shuttle mediation who speaks to the disputing parties is the mediator (the parties don’t speak to each other directly in shuttle mediation), the mediator can manipulate the negotiation process by telling one party one thing and the other party something completely different (and many mediators cannot resist that temptation).
  • Many mediators like shuttle mediation because by doubling or even tripling the amount of time it causes mediation to take, mediators thus double or triple their fees over what they’d otherwise earn were the parties all in the same room or in the same Zoom conference.
  • The way mediation is scheduled and held is also incredibly inefficient and wasteful. Parties should go to mediation after exchanging with each other written comprehensive settlement proposals. So much time is wasted in mediation doing anything but actual negotiation.

While you are required to engage in mediation to try to settle your divorce case, you are not required to engage in shuttle mediation. If your spouse will see reason and agree to avoid shuttle mediation, then ensure that your mediator is not a shuttle mediator.

Mediation isn’t necessary if the parties and their respective attorneys are willing to negotiate without a mediator. If the parties can discuss the case and negotiate without a mediator, they are free to do so. Few attorneys, however, are willing to do this. Why I do not know. But if you are a client and you believe your spouse (and his/her attorney) is willing to meet in settlement negotiations without a mediator, try it! If such negotiations fail, you can always go to mediation next.

Parties (usually because of their attorneys) wait too long to discuss and negotiate settlement. Attorneys make less money when cases settle sooner than later. Don’t go into mediation unprepared, of course, but don’t put it off any longer than necessary.

Too much time in mediation sessions is not spent in actual negotiation. Consequently, mediation ends up being incredibly inefficient and wasteful. Often the first 2/3 of the time spent in mediation is spent “getting up to speed,” with the mediator giving an “introductory speech” about how mediation works and with both the mediator and often unprepared attorneys trying to get an understanding of the case and what the issues are. All of that can and should be dealt with before the mediation settlement conference itself.

  • The mediator should send the parties a link to his/her written and recorded “introduction to mediation” presentation to read/listen to/watch before everyone meets in the mediation settlement conference.
  • The parties should meet in mediation only after:

o   expeditiously conducting necessary discovery, so that the material and relevant facts are known to the parties; and

o   then exchanging with each other (and providing the mediator with copies of) their written comprehensive settlement proposals, so that everyone knows in advance 1) what the issues are and 2) what the initial respective positions of the parties on the issues are.

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

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Divorce Mediation – To Good to Be True (For Most People)

I know you want to believe that divorce mediation is the trick to a fast, easy, cheap, amicable divorce. I know you want to believe this, and we know why. But if it sounds to good to be true, it likely is. So it is with mediation.

Divorce mediation won’t work unless you and your spouse trust each other to negotiate in good faith and honor any settlement agreement reached. You cannot get out of mediation any more than you put into it.

Divorce mediation was a good idea that the legal profession spoiled by making it mandatory.

Divorce mediation is a good idea when it’s done at the beginning, but divorce lawyers put it off until they’ve squeezed a hefty profit out of their clients through a bunch of pretrial motions and discovery. Thus, mediation typically “succeeds” because by the time the parties get to mediation they’re so emotionally and financially spent that they settle out of resignation and exhaustion; “think win-win” had nothing to do with it.

Mediation worked well when it was voluntary and between two people who both believed they might reach an agreement they trusted each would honor. Now mediation is just one more of the “dumb [and expensive] things I gotta do” before I can get divorced.

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

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How Can Family Law Mediation Help You?

You can find tens of thousands—and I wouldn’t be surprised if you could find millions—of articles about divorce and family law mediation and all of the benefits thereof. Just Google “divorce mediation” or “family law mediation” and you will find limitless numbers of articles on divorce and family law mediation of varying degrees of detail and quality. These are usually not objective articles but articles written by mediators who want you to use their mediation services, and so, as with any sales pitch, you should receive them a healthy dose of skepticism (A healthy dose, not too much, but not too little).

Given the extreme volume of articles that describe what family law mediation is and how it can be conducted, I’m not going to rehash here what you can read in the literally countless number of articles that have been written about the benefits of divorce and family law mediation.

Instead, I will tell you what many of you who believe or want to believe that mediation is a magic pill by which you and/or your spouse we’ll quickly, inexpensively, comprehensively, and amicably resolve your divorce or other family law dispute probably don’t want to know but need to know: mediation only works as well as the people who engage in it. Thus:

  • evil people;
  • vindictive people;
  • greedy people;
  • lazy people;
  • cheapskates;
  • sociopaths;
  • conflict averse people (cowards); and
  • stupid people

rarely reach agreement in mediation quickly, inexpensively, comprehensively, fairly, or amicably.

No matter how good your mediator is (and I have yet to meet a mediator with a magic touch, someone who has that supernatural ability to transform bitter rivals into “problem solving partners” who think win-win), your odds of reaching a quick, inexpensive comprehensive, fair, and amicable settlement agreement in mediation are slim to none if you and/or your spouse or your children’s other parent aren’t decent, intelligent, informed, rational, and pragmatic people yourselves.

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

https://www.quora.com/How-can-family-law-mediation-help-you/answer/Eric-Johnson-311

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What is a Settlement Conference for Child Custody? 

While I cannot tell you what is meant by “settlement conference for child custody” in every jurisdiction, I can tell you what it means in the jurisdiction where I practice child custody law (Utah). 

The term “settlement conference” means a meeting held for the purpose of a hoped for settlement out of court of one or more issues in a pending lawsuit. “Settlement conference” can mean many different things. 

When litigating parties meet in the hope of reaching a settlement agreement, that is a settlement conference. 

When litigating parties meet in mediation with a mediator in the hope of reaching a settlement agreement, that is a settlement conference. 

When litigating parties meet in mediation with a judge serving as the mediator in the hope of reaching a settlement agreement, that is known as a judicial settlement conference. 

Thus, when litigating parties meet—with or without a mediator—in the hope of reaching a settlement agreement on a particular issue, such as the child custody award, that is a child custody settlement conference. 

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

https://www.quora.com/What-is-a-settlement-conference-for-child-custody/answer/Eric-Johnson-311  

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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

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How can I enforce my power when I have final say in joint custody?

My sons father and I have joint custody but I have final say over his well being health and education. How can I enforce my power? 

If you are asking: “How do I enforce in good faith my final say authority over our son’s well-being, health, and education when the other parent and I do not agree?,” then the answer is (depending upon the jurisdiction’s requirements) typically: 

  • go to mediation to try to resolve the dispute, and if that does not work, then 
  • file a motion with the court seeking an order that compels your ex to comply with your final decision-making authority. 

Don’t take this the wrong way, and I realize that there is more than one way to interpret the meaning of your question, but the fact that you would ask how you can “enforce” your “power” without ever expressing any concern for the welfare or best interest of the child raises questions as your motives for exercising that power. A parent wants to exercise power for the sake of lording it over the other parent is clearly unworthy of that power and should be stripped of it for the sake of the child’s welfare and best interest. 

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

https://www.quora.com/My-sons-father-and-I-have-joint-custody-but-I-have-final-say-over-his-well-being-health-and-education-How-can-I-enforce-my-power/answer/Eric-Johnson-311  

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Law from a legal assistant’s point of view, week 13: Thoughts on ADR

By Quinton Lister, Legal Assistant

Part of what has drawn me to my current position as a legal assistant to a divorce attorney is that I wanted to learn more about Alternative Dispute Resolution (ADR). In very basic terms, ADR refers to the other methods of solving disputes between parties outside of litigation in court.  

But ADR is clearly not an “alternative” when you have no choice. ADR is often peddled as a cheaper, faster, less stressful cure-all, but that’s deceptive. I’ll discuss this more later in this post.  

One form of ADR is mediation, which in today’s world probably everyone has at least heard of, and most people probably have some idea of how mediation works. In mediation the disputing parties privately discuss their issues and try to reach an agreement with a neutral third party acting as a moderator but not a decision maker.  

Each divorce case in Utah is required to go to mediation before the matter can go to trial. I figured that I would get a chance to experience what mediation is like by working at a divorce and family law firm. I was right. The mediations I have attended were an educational experience. Each party was fairly civil and the mediator’s job was mostly keeping the discussion on track to cover each topic in dispute. The parties’ respective lawyers were also instrumental in getting the terms of a final settlement nailed down. 

Family law in Utah has a strong connection to ADR, particularly mediation. Some might even say the connection to mediation is too strong.  

Because mediation is mandatory in all divorce cases before you can go to trial (if you go to trial), the power and value of mediation has been somewhat diluted. Mediation works best when disputing people agree that trying to work out their differences is preferable to fighting out those differences in court. Requiring people who don’t want to negotiate with each other to negotiate will feel forced because it is forced. People come away from mediation with a bad taste in their mouths when they are made to negotiate with a party who hostile or deceptive, or both. Mandatory mediation can feel like just another hoop to jump through on the way to the courthouse for trial. I think it makes sense that just because mediation is possible that does not it should be mandatory.  

But one of the reasons that mediation is so appealing to people going through a divorce or other family law dispute is because going to court is so appalling. Mediation, however, doesn’t work with people who aren’t able or aren’t willing to compromise. And there’s nothing that requires you to compromise, especially if you don’t feel it’s fair for you to compromise, when you know or at least strongly believe that the law is on your side. is there a way to fight for what’s right without getting caught up in all the expense and bureaucratic red tape of the court system? Yes, there is. This is where arbitration comes in.  

Arbitration is a private forum for arguing and deciding disputes, where the two parties present their case to a neutral third party, typically a retired judge or lawyer, who then decides the case for them and issues an order that is as binding legally binding upon the parties as a court order from a judge. So if you and the other party don’t trust each other to reach a resolution in mediation, and you both have the good sense to know that going to trial in court is going in soon too far too much time, money, and effort, yet you still need your dispute resolved, arbitration maybe just the thing you both need. 

I still believe ADR is a topic worthy of further investigation and development. I want to continue to learn more about this topic, better understand the advantages and disadvantages of ADR, and make ADR work. 

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

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How do I prepare for family court mediation?

How do I prepare for family court mediation? 

There appears to be a lot of confusion and fear surrounding the divorce mediation settlement conference. There shouldn’t be. 

The two main reasons for the mystery and worry appear to be 1) that lawyers don’t explain mediation to their clients very well (if at all), and 2) clients, who generally hate everything about the divorce process, are thus not terribly eager to learn about or prepare for the various aspects of the divorce process (which is understandable). 

So, here is a concise, clear description of what divorce mediation is, how it works under the law of the jurisdiction where I practice divorce and family law (Utah), and how to prepare for it. 

What a divorce mediation settlement conference is: the process of trying to reach a settlement of all (or at least some) of the disputes in the divorce case by involving a neutral third person (the mediator) to assist and encourage the spouses to settle their legal dispute(s). 

That’s it. The mediator is someone who tries to help the parties reach an agreement. 

If you want more details on better understanding what mediation is, you will find this informative and useful: 

  • The mediator does not have the power to force or order the parties to settle. 
  • The mediator does not dispense legal advice. Many divorcing people, who are short on funds, think they can “cheat the system” by going to mediation and not hiring a lawyer to represent them. They believe that the mediator will not only help the parties try to settle, but advise them on what good settlement terms are. A mediator is not permitted to advise the parties to a mediation. That would be a conflict of interest. A mediator cannot be a neutral and at the same time advise people with opposing interests as to what each of them should do. If what benefits you would come in your spouse’s expense, there is no way the mediator could look out for your best interest and look out for your spouse’s best interest at the same time. 
  • If the parties do not settle in mediation, the mediator cannot be called as a witness at trial to testify about what was discussed during the mediation settlement conference. This means that if your spouse or you made a settlement proposal or offer in mediation that was rejected, that proposal or offer cannot be brought up at trial as “proof” that you or your spouse can and should be ordered to do as proposed or offered in settlement negotiations. 
  • Note: many mediators try to create the false impression that mediation is a sophisticated, complicated process that can only be “practiced” successfully by elite, highly trained professionals who possess rare and unique skills. While it is true that most successful mediators have in common a certain minimal level of competence and procedures to be effective, mediation isn’t nearly as exotic and complex as these “mediateurs” would have you believe. Don’t be taken in. 
    • That stated, it is obvious that a well-intentioned layperson who has no knowledge of divorce law is likely not going to be as good at mediating a divorce settlement as a mediator who has training and experience in divorce law. 
    • The more experience your mediator has with divorce (such as a lawyer who has been practicing divorce law for decades or a retired domestic relations commissioner or judge), the more your mediator will know about the many different ways he/she has seen cases like yours settle satisfactorily and successfully. A mediator experienced in divorce law can also provide the parties with the added benefit of providing both spouses with a reality check as to just how strong or weak their respective cases are, were either or both of them to go to trial. 

How to prepare for your divorce mediation settlement conference: 

1. Know and understand the legal strengths and weaknesses of your case.

a. How badly you want something or want to avoid something does not make your case strong.

b. How sincerely you feel about certain principles does not make your case strong.

c. There are statutes and case law that govern how every divorce issue is to be decided. If the facts of your case don’t favor you, you will — unless your judge is corrupt and/or incompetent — lose on those issues at trial, if the case goes to trial.

d. Understanding the law and what it will and will not allow you or your spouse to have prevents you from setting your heart on things that you either cannot possibly get or that you are extraordinarily unlikely to get.

e. So, don’t go into mediation expecting bluff and bluster to compensate for the weaknesses in your case. Rarely will your spouse and his/her lawyer not be aware of the same weaknesses.

f. Go into your mediation settlement conference with an informed and realistic understanding of what you could expect to get at trial (which usually means you must be prepared for disappointment in most, if not all subjects of your divorce because very few people’s desires square with the law). Then try to negotiate a settlement that is better than or at least as good as what you expect you would get a trial. that way you avoid the time, effort, and expense that preparing for and going to trial would consume.

g. Prepare for mediation knowing what your bottom line is. What do I mean by “bottom line”? what is the least you are willing to settle for without going to trial? At what point would your spouse’s settlement proposal cause you to say to him/her, “Unacceptable. I will see you in court”? This segues perfectly to the next point

2. Know and understand your spouse’s case in the arguments behind it as well as you understand yours.

a. The more you understand the facts that bear upon the divorce case and the more you understand your spouse’s interests and motives, the better you can craft a settlement proposal that meets as many of your spouse’s desires while still consisting of terms acceptable too you.

b. The better you understand both your case and your spouse’s case, the more confident you can be in making an offer that you’re willing to go to court to defend, if your spouse rejects it in mediation.

c. Knowing your case and your spouse’s case inside and out ensures that negotiation time is spent efficiently and productively. If you going to mediation unsure of the value of your assets, how much money is in the bank in your various accounts, if you don’t know what kind of child custody award you want and why, you’re going to waste a ton of time in mediation just trying to get up to speed. Ignorance of the facts will easily be misconstrued as misrepresentation or concealment of the facts. Consequently, both you and your spouse will be frustrated at how little progress is being made toward settlement.

3. Have a fully formed, comprehensive settlement proposal in mind before you go to mediation, and send a copy of this proposal to your spouse well in advance of mediation.

a. This helps you to frame the issues in a light most positive to you. This helps to create an agenda for discussing the issues and in the order you may wish to discuss them.

b. I am amazed at how rarely anyone does this in advance of mediation, but I am never amazed at how advantageous it is for my clients and me when we do it.

c. Sending your spouse and his/her attorney a comprehensive settlement proposal in advance of mediation helps ensure that mediation doesn’t waste time and has the effect of planting the seed in your spouse’s mind that you have a command of the situation, you have a plan where he/she does not.

d. If your spouse is too lazy and/or scared or discouraged to want to think about a comprehensive settlement of his/her own, the fact that you prepared one may have the effect of causing your spouse to accept more of your proposals than would otherwise be the case if you sprang your proposal on your spouse and his/her attorney for the first time at mediation.

4. Be as open-minded, flexible, and nimble as possible. You may be surprised when you get to mediation to learn that your spouse has a proposal for settling certain issues that is better than anything you had in mind. You may learn at mediation for the first time facts that suddenly make your case a lot better or worse than you thought. Don’t reject good ideas simply because they come from your spouse. Don’t blind to yourself to beneficial possibilities, just because you didn’t think of them. By definition, no one can be prepared for surprises, but failing to acknowledge the possibility of surprise and doing your best to ready yourself for that possibility, will help you react far more rationally, and perhaps even to your advantage.

5. Do the work. How much you get out of mediation depends upon how much you put into it. How well mediation goes depends upon how well you prepared in advance and how well you  participate in the mediation settlement conference itself.

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

https://www.quora.com/How-do-I-prepare-for-family-court-mediation/answer/Eric-Johnson-311?prompt_topic_bio=1  

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How long does it take a divorce to become final if one party is refusing the divorce?

How long does it take a divorce to become final if one party is refusing the divorce?

It can take an amazingly, shockingly long time.

One of the most frustrating things about this experience is that while you clearly have a stake in the expeditious outcome of your divorce action, you are not the only participant in the divorce process, and if the other participants do not share your desire to dispose of your divorce case as promptly as reasonably possible, you can often find the divorce process frustratingly tedious.

I’ve been involved in cases that have, despite my and my clients’ best efforts, dragged out for years beyond when they should have been set for trial.

Here are a few things that you can do to ensure that you are not contributing to the delays in your case:

  • Don’t keep hoping for a perfectly fair settlement;
    • I completely understand the desire to settle the case so that you avoid months or years of protracted litigation and or having to spend scary amounts of money preparing for and going to trial. but once you’ve gone to mediation once or twice, once you’ve exchanged multiple settlement proposals, and have nothing to show for it, then it should be clear that unless you roll over and settle on the terms your spouse dictates, your case will be going to trial. When she reached that realization there’s no point in putting it off any longer.
    • Sometimes it may be your attorney, not you, who is afraid to stop negotiating in a fruitless attempt to reach a settlement. Some lawyers are terrified of going to trial, so they might be the ones slowing the case down in a vain attempt to settle the case so that they don’t have to worry about preparing for and going to trial.
  • Bite the bullet and realize that preparing for and going to trial is expensive. For some people, the financial cost of preparing for and going to trial is more than they can pay. Some people literally cannot afford to go to trial. If you find yourself in that situation, and then make a settlement you know isn’t fair but one that you made because you had no other alternative, that’s a hard pill to swallow, but there’s little point in complaining about it; you did the best you could.
  • Make sure you have an attorney who doesn’t put up with the opposing parties and/or the opposing party’s attorney’s or even the court’s dilatory shenanigans. Your attorney cannot force your case to settle on your terms and timetable but can take steps to ensure that the opposing side and/or the court isn’t/aren’t delaying the progress of the case inexcusably. If your attorney is in this kind of attorney, fire him or her and get one who is.

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

https://www.quora.com/How-long-does-it-take-a-divorce-to-become-final-if-one-party-is-refusing-the-divorce/answer/Eric-Johnson-311?prompt_topic_bio=1

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What are the Steps for Getting Divorced in Utah?

What are the Steps for Getting Divorced in Utah?

To start the divorce process, you must begin by filing what is called a complaint or a petition for divorce with the court. This means you are suing your spouse for a divorce. Don’t let the term “suing” frighten you or your spouse. “To sue” means to institute legal proceedings against your spouse. That’s all.

Then your complaint or petition for divorce is served on (or officially delivered to) your spouse, usually by a law enforcement officer or a private process server. You can also waive personal service by a law enforcement officer or process server and just accept service by signing a simply accepting the documents without the need for personal service.

If you and your spouse agree to the terms of your divorce, also known as an “uncontested divorce,” the issue of “service of process” doesn’t come up because you submit voluntarily to the jurisdiction of the court by signing and filing with the court your divorce settlement agreement and other documents that indicate you recognize you are subject to the to the jurisdiction of the court.

If you’re the one seeking a divorce and the one who filed for divorce, your spouse has 21 days to respond to the complaint for divorce or 30 days to respond if your spouse is served outside of the state of Utah.

The name for the response to a complaint for divorce is an “answer”. If you wish to countersue your spouse for divorce after you get served with a petition or complaint for divorce, you can file an “answer and counterclaim”.

How the case proceeds from this point could take various routes:

  • At any point during the pendency of the case, as long as the trial has not concluded and the court issued its decree and orders, you and your spouse can reach a settlement agreement.
  • After the complaint and answer or answer and counterclaim are filed, the parties have to exchange some initial financial information and information about the evidence each party has and what witnesses the parties might call to testify at trial.
  • Then the parties have 180 days to conduct discovery. The purpose of discovery is to obtain facts and information that will reveal the truth in a matter and help both parties and the court determine what’s truly in dispute and what is not. After discovery closes, then the case is almost ready to take to trial, but not quite.
  • Before a divorce case can go to trial in Utah the parties must first to go mediation and try to settle the case (if the parties don’t want to go to mediation they can ask the court to waive the mediation requirement “for good cause,” but it’s not easy to get the court to find good cause to waive mediation. Most couples go to mediation, even if they think it won’t work, if for no other reason than to check the “we went to mediation” box, so that they can get to trial.
  • After discovery closes and mediation is completed, either party can certify the case as read for trial.
  • Then the court schedules one or more pretrial conferences to prepare for trial, set a trial date, the number of day the trial will take, and other matters.
  • After trial, the court can take up to 60 days to issue its decision on the case, after which one of the parties’ respective attorneys is ordered to prepare the Decree of Divorce for the court’s signature.

That’s the Utah divorce process in a nutshell.

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

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Utah Divorce Case Timeline Summary

Utah Divorce Case Timeline Summary

The greatest influence on how long a divorce case takes is usually how much and how severely the parties fight over the issues. The more they fight and the more things they fight over, the longer and more expensive the divorce process is. But here is a general timeline for a Utah divorce, step by step.

Bottom line: Generally speaking, a contested divorce will likely take between 15 months to 24 months. Bitterly contested divorce cases can take many years. An uncontested divorce can take as little as 45-60 days to complete from the date of filing, if the parties agree on everything.

Timeline

What happens first?

  1. Complaint or petition for divorce is filed (“complaint for divorce” and “petition for divorce” are interchangeable terms). The person who files is the “petitioner”.

What happens next?

  1. Your spouse is served with the summons and a copy of the complaint/petition for divorce. Your spouse is the “respondent”.

When?: The respondent has 21 days to file an “answer” to your complaint. Your spouse will likely not only answer your divorce complaint but also counters through you which is known as a counterclaim.

You will then have 21 days to respond to the counterclaim after it is served on you (and if you have an attorney the counterclaim will be sent to your attorney, and your attorney should provide you with a copy of it).

What happens next?

  1. Financial declaration and initial disclosures. After the complaint have been filed with the court and served on your spouse and after the parties have responded to each other’s respective complaint and counterclaim for divorce they have to exchange what are known as financial declarations and initial disclosures.

Financial declaration. The financial declaration requires you to identify

      • Whether you are employed and if so, by whom and what you earn from employment.
      • Other forms of income other than income from a job (unearned income).
      • Monthly expenses
      • Business interests, if you have any
      • Financial Assets. A description of your financial assets
      • Real Estate. Identifying any interests in real estate that you own
      • Personal Property. A description of your personal property, such as vehicles, boats, trailers, major equipment, furniture, jewelry, and collectibles
      • Debts Owed. A list of your debts and obligations, what you owe, and who your creditors are.

Initial Disclosures. Your initial disclosures require you to disclose:

      • each individual likely to have discoverable information supporting your claims or defenses
      • each fact witness you may call at trial
      • a copy of all documents, data compilations, electronically stored information, and tangible things in your possession or control that you may offer at trial
      • a copy of all documents to which you refer in your pleadings

When?: The petitioner must serve her financial declaration and initial disclosures 14 days after the answer is filed (that’s a lot of work in a fairly short time, so don’t dillydally if you’re the petitioner). The respondent is required to serve his financial declaration and initial disclosures 28 days after the answer is filed.

What happens next?

  1. Temporary orders. After the answer and counterclaim have been filed with the court, it is typical for the parties to request what are known as “temporary orders” from the court. Temporary orders are put in place to ensure that the leaves and affairs of the family are maintained during the pendency of the divorce action. So temporary orders can include things like responsibility for the mortgage and other expenses associated with the house and family. They can include temporary orders of child custody and parent time and child support and spousal support. Temporary orders can include other provisions as well, depending upon the circumstances and needs of your family.

When?: You soonest you could file for temporary orders is when you file your petition/complaint for divorce. Most people file after the petition/complaint for divorce is filed.

After the motions are file the court usually schedules a hearing within 1 to 3 months of the date the motion was filed.

What happens next?

  1. Discovery. Discovery is the process By which the parties request documents and other evidence from each other to help them get a better understanding of the issues, and to determine what issues are really disputed and which ones aren’t or can’t be disputed. Discovery is used to help the parties gain a better understanding of the issues and to help each party build its strongest case against the other party.

When?: You are allowed 180 days for discovery. The discovery period starts the day after the last day that initial disclosures and financial declarations are due from the respondent.

If you have children and you and your spouse are fighting over child custody: a custody evaluation may be ordered. A custody evaluation is supposed to take 4 months. They almost always take longer. Sometimes the custody evaluation won’t be completed by the time discovery closes. Be prepared for this possibility.

What happens next?

  1. Divorce Orientation and Education Courses. If the divorcing couple has minor children then divorce orientation and education courses are mandatory for both parties. You can learn about and sign up for those courses using this link: https://www.utcourts.gov/specproj/dived/

When?: You can take the divorce orientation and education courses any time, even before you file for divorce. Most people sign up for and complete the courses around the time after the answer and the reply to counterclaim have been filed and served.

You cannot obtain a decree of divorce without completing the divorce orientation and education courses or having the requirement to attend them waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Mediation. You must go to mediation before the case can go trial. Most divorce actions settle and most settle in mediation. If neither party wants to go to mediation or there are circumstances (such as domestic violence) that would not make mediation feasible or worthwhile, the parties can move to waive the mediation requirement.

When?: You can go to mediation any time, even before you file for divorce, although if you go to mediation before you or your spouse file(s) for divorce the court may make you go to mediation again before you will be allowed to go to trial.

So bear in mind that you can go to mediation at any point in the case.

You cannot obtain a decree of divorce without engaging in mediation or having the mediation requirement waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Trial. If the parties do not settle their case (whether in mediation or on their own), then the case goes to trial.

When?: After discovery has closed (after 180-day discovery period has elapsed), then the case can be certified for trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date. All told, it takes about a year to a year and a half to go from filing for divorce to trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date.

All told, it takes about a year to a year and a half to go from filing for divorce to trial.

What happens next?

  1. After trial, the court will make its decisions as to the issues that were argued over and “tried” in court and then the Decree of Divorce is prepared and the court signs it.

When?: Usually 30 to 60 days after trial.

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

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Putting my money where my mouth is: I now offer half-day mediation services free of charge. No strings attached.

Putting my money where my mouth is: I now offer half-day mediation services free of charge. No strings attached.
Divorce litigation almost always costs too much. Divorce mediation is now getting out of control too.
 
I cannot offer unlimited free mediation sessions, but I offer one slot per week. You don’t have to be poor to qualify. Anyone can request my free divorce mediation services. 
In person or over Zoom (or Skype, Google Meet, or Microsoft Teams), I can accommodate you.
 
If you or someone you know who needs or wants to mediate, you can book a half-day mediation (either 8 to noon or 1 to 4) with me on a first come, first-served basis. 801-466-9277. Or to book by e-mail, send your message to my legal assistant, Brian: brian@divorceutah.com.

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

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How can I turn arguments into negotiations and agreement?

How can I turn arguments into negotiations and agreement?

If you could only read and apply one book on the subject, I would recommend “Start with No,” by Jim Camp.

Here is the link to buy the printed book on Amazon

Here is the link to the audio book on Audible

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

https://www.quora.com/What-does-it-feel-like-to-separate-two-kids-out-of-spite-during-a-divorce/answer/Eric-Johnson-311

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If we agree on child support and custody, can the judge reject our agreement?

If my husband and I agree on child support and custody in mediation, can the judge reject our agreement?

Yes.

A judge is not obligated to approve of and adopt as his/her child custody order the agreement the parents may agree upon.

To illustrate this principle in an overly simplified manner, let me give you an example of why that is.

Imagine the parents agreeing to a joint physical custody award when A) the mother is employed as an airline pilot, leaving her gone for several days at a time and subject to a constantly changing schedule that can change at a moment’s notice, and B) the father works from home during the same hours the children are in school so that he can provide personal care and attention for them when they are home. And if there’s any question as to whether mom can make this schedule work, the answer is, clearly and verifiably, no.

A judge may look at that schedule that the parents have agreed to and determine that the schedule was agreed to not because it serves the best interest of the children but because mom the airline pilot threatened to continue to litigate the issue unless dad agreed to a schedule and child support obligation that mom—and only mom—wants (but can’t even exercise due to her work schedule). In such a situation, the judge is not bound to do as the parents agree, but must exercise his/her judgment as to what custody arrangement best serves the children.

So if you and your spouse are trying to settle out of court your divorce issues, including but not limited to child custody, make sure that your agreements are fair and equitable and feasible; otherwise, your judge may reject them.

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

https://www.quora.com/If-my-husband-and-I-can-agree-on-child-support-and-custody-during-mediation-can-a-judge-deny-our-agreement/answer/Eric-Johnson-311

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Must I engage in all-day divorce mediation or some other time period?

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

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How much does a collaborative divorce cost?

How much does a collaborative divorce cost?

Too much, generally. Odds are that if you attempt to settle your divorce through what is called the “collaborative law” process your experience will be a negative one and/or one that cost you far more in time and money and effort than it should have.

Truly collaborative divorce is, in practice, a sham more often than not.

Most collaborative lawyers are all hat and no cattle, selling the sizzle and not a steak. With rare exception, most attorneys who call themselves “collaborative lawyers” do so for the sole purpose of exploiting what they believe to be a lucrative trend, not to be real collaborators.

Forewarned is forearmed.

Collaborative divorce is one of those things that sounds great in concept but doesn’t translate to real world success. Even the most enthusiastic and vocal (and honest) proponents of collaborative divorce will tell you this (please read on to find out who and why).

I was recently asked why collaborative law is not utilized more in divorce cases, and while I had my own ideas for how to answer the question, I wanted to refer to someone with more expertise and a greater understanding of the subject than I do, to make sure that I did not misstate 1) the correct definition of collaborative law; and 2) did not misstate the strengths and weaknesses of collaborative law as it is practiced in the real world today.

As I searched the web for such an article, I found a few that summarized what I was thinking, but I still felt did not accurately describe what real collaborative law is or why collaborative law practice so often fails to be practiced correctly. I knew that I still did not myself have a correct definition or correct understanding of collaborative law.

Then I came across ‘Collaborative Divorce’ Is Collaborative in Name Only. The author of this article, Mark Baer, hit the nail on the head when you said that what many people describe as “collaborative law” is in fact “cooperative law”.

The article laments “a collaborative law community that seems more intent on patting itself on the back and devising a way for all of us to make more money than in really helping our clients.” Again, it hits the nail squarely on the head.

Human nature being what it is, most people won’t exercise the patience or take the leap of faith needed for collaborative law to function properly. That’s a shame, but Mr. Baer’s article neatly summarizes why this is.

The real power of collaborative law practice, ADR, mediation, etc. is wasted and/or never realized when people don’t understand that the real power lies in mutual benefit as the goal. While mediation may still be better than litigation, if the main benefits are compromise obtained through conflict avoidance, the disputants “left money on the table” both literally and figuratively (i.e., emotionally and spiritually).

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

https://www.quora.com/How-much-does-a-collaborative-divorce-cost/answer/Eric-Johnson-311

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Good and Bad Advice About Preparing for Mediation

There’s a lot of advice on how to prepare for and go to mediation successfully. But how good is the advice? Let’s find out.

Read this article about how to prepare for a successful mediation (I didn’t write this one):

https://familylawyermagazine.com/articles/4-tips-to-prepare-for-a-successful-family-law-mediation/

It contains some good advice. It contains some bad advice. I’ll explain why below.

The Good

“2. Present your case to your mediator previous to mediation”.

This bit of advice is a little deceptive. Why? Because in my experience when you take care to prepare a mediation position statement and to provide the mediator with copies of the relevant documents needed to discuss the issues, rarely does the mediator review these documents in advance. Like most people, unfortunately, most mediators want to make as much profit as possible. The more time they spend preparing for your mediation, the less time they have to do other things they like to do. Mediators get paid the same amount of money whether they prepare in advance for your mediation or just wing it on the day of. Most mediators wing it on the day of. This, however, doesn’t mean you shouldn’t prepare in advance.

Whether your mediator benefits from it, you will benefit personally from thinking over the issues and generating ideas for settlement. The better you understand your case, the better you can educate your mediator.

The good advice in this paragraph of the article lies in extolling the benefits of preparation. The better prepared you are for mediation the more likely the mediation will be productive.

Preparation takes time and effort (and if you have an attorney assisting you, it takes money to pay for his/her help), and no matter how well you prepare, there’s no guarantee of success. Boo. But serious, good preparation is worth the effort nonetheless. Yay. Why? The more you prepare for mediation, the better you understand and appreciate the strengths and weaknesses of your case. The better your understanding of your case.

  • The better you can determine what the possible fair real-world settlement agreements might look like.
  • The better you can generate settlement ideas and options. Simply put, it takes more time and effort to come with Plan A and Plan B than just Plan A. And when start asking what your options are, the more options you will notice. Imagine how much better prepared you’ll be to settle on fair terms if you have a wide range of ideas on what all those fair terms could be and form they’d take.
  • And while the most productive mediation is one that ends in a satisfactory settlement, even a mediation that doesn’t end in settlement can be productive. If you don’t settle in mediation, you may learn things in mediation helpful you in your trial preparations. The better prepared you are for mediation, the better prepared you are to frame the issues and to discuss them. So even if the mediation does not end with a settlement, you and your spouse may come to understand better the respective strengths and weaknesses of your cases.
“3. The Parties’ State of Mind is Crucial”

The article goes on and on about the importance of being in the proper state of mind for mediation and goes to great lengths to describe what “being in the proper state of mind” means. I can sum it up in far fewer words:

Be prepared to compromise so bad it hurts.

Think about virtually every agreement you have ever made. With the exceptions of the deals you make with people you have over a barrel, the deal you end up with is almost never as good as the one you hoped for. Divorce mediation is no exception.

While every now and then certain people get extraordinarily lucky in divorce settlements, the overwhelming odds are that you’re not going to get everything you want out of a settlement agreement. Accept it.

While preparation for mediation is crucial, no amount of preparation will make your case any stronger than it inherently is. No amount of preparation will make your spouse’s case any weaker than it inherently is. No amount of preparation magically causes the universe to bend to your will. Preparation helps you to make the best of a bad situation.

So when mediators urge you to “keep an open mind” and “be flexible” those are just euphemisms for “don’t be surprised if the best you can do is a mediocre deal.” That’s what settlement is most of the time.

True, occasionally two opposing parties with differing interests find a way to think “win-win,” but that rarely happens in divorce. There’s just never enough money and assets to make both parties financially secure. Just too much anger, bitterness, and vengefulness to enable the parties to trust each other and desire to work together for their mutual benefit. And should that come as any surprise? If you could amicably cooperate, think win-win, and make each other’s happiness your priority, you would not be divorcing in the first place.

The section of the article dealing with the importance of patience is excellent. Spot on. In most cases, a mediation doesn’t really start to get serious – and seriously productive – until the parties realize they are running out of time. Before then, the parties will spend a great deal of time (wasting a great deal of time, actually) telling the mediator their life stories.[1]

So while it is not unusual for a lot of time to be wasted in the first few hours of mediation, that does not mean that you must suffer this waste as a “natural” or “necessary” part of the mediation process. The sooner you can get down to business, without the venting and posturing, the more time you’ll have to formulate options and reach a settlement that is well-thought-out and as fair as you can reasonably expect.

The Bad

“1. Choose your mediator carefully”

This is bad advice because rarely do you get to choose your mediator.

Choice of mediator is a joint decision you reach with your spouse. As you might have guessed, one way to ensure your choice of preferred mediator is not chosen is to inform your spouse of your choice of preferred mediator. Most spouses will reject your proposed mediator on the basis that you proposed that mediator.

Another problem with choosing mediators: some people propose bad mediators and/or mediators you don’t like just to make you suffer.

So when the article tells you to select a mediator based upon the best fit of personalities, etc. that’s probably never going to happen. It can happen, but it’s not likely. It’s always hard to get agreement between two warring parties. So it should come as no surprise that if you and your spouse can’t agree upon the terms of your divorce without a mediator, why should you and your spouse suddenly develop the ability to cooperate when choosing the mediator?

Frankly, while there are some elite mediators who seemingly have an almost superhuman ability to get agreements out of almost anyone, I don’t know who any of these people are, and even if I did, these are the kinds of mediators you likely can’t afford and who are booked out so far down the road that you might have to wait months or even years before you can get a spot on his or her schedule. You and your spouse probably don’t want to spend months or years in a fruitless search for such a unicorn mediator.

The good news is that there are plenty of merely excellent mediators that you can book on just a few days’ or few weeks’ notice. Candidly, there is more value in getting mediation scheduled as soon as possible, before the attorneys’ fees and sickening worry start to rack up.

Odds are that if you find a mediator who is a former judge or a former court commissioner, or an experienced divorce and family law attorney with at least 10 or 20 years of experience, that is the kind of mediator who can help you frame the issues properly, help you understand the stakes and your options realistically, and think creatively to help you and your spouse reach an agreement that is as mutually beneficial as possible, fair, and – though it may not be an agreement you are thrilled with – an agreement you can live with. An agreement that is preferable to spending more time, effort, worry, and money on rolling the dice at trial.

The mediator has no power over you. He/she cannot tell you what to do. The mediator cannot be a witness for or against you in court. So don’t fear your mediator. Don’t worry about picking “the wrong mediator”. If you and your spouse end up picking a lousy mediator, you can always and the mediation session sooner than later and pick another mediator and try again.

Mediation succeeds only if you and your spouse reach an agreement. Mediators cannot force a settlement on anyone (although many try[2]). The mediator is not a miracle worker. The mediator does not possess magic powers of persuasion. So don’t pin all hopes of successful mediation on your mediator. Yes, there are mediators who are so incompetent that they do more harm than good, but what matters most is that you and your spouse are both of the mind that you would rather settle than continue to fight and litigate.

Knowing you don’t have to fear your mediator, and knowing that it’s unlikely that you and your spouse will agree upon “the best” mediator, you can take this part of the article for what it’s worth:

“You may be familiar with the mediators under consideration, but take time to think carefully about the personalities involved in your case and whether a particular mediator would be effective in dealing with you and your client. Also, think about the potential interaction between the mediator and your opponent. Mediators come to their task with differing experience, talents, dispositions, and styles. The mediator who would be perfect for resolving a case involving complex assets and property division issues may or may not be the best person to mediate a case focused upon custody and support issues. It is worth your time to research the background of the mediator. It can also be very helpful to solicit the advice of colleagues who have participated in mediations with a particular mediator. Finally, be prepared for the possibility that your opposing counsel may not agree with you as to the optimal person to handle the mediation. As an attorney representing a client, I attempt to diffuse this issue by providing opposing counsel with a list of three mediators, any of whom would be acceptable to me and my client. I allow opposing counsel to pick from the three and, in virtually every case, one of the three is acceptable.”

“4. Successful Family Law Mediation: Closing the Deal”

I struggled with whether to consider this bit of advice good or bad.

On the good side: if you and your spouse can – in the time you schedule to hold mediation – adequately identify, discuss, and resolve all of the issues in your case to your mutual satisfaction, and then reduce that agreement to a complete and clear written agreement, that is beautiful. It is not, however, terribly common.

But on the bad side: Far too often what happens is that the parties become desperate to reach an agreement for the sake of reaching an agreement. Any agreement. Anything to bring this horrible divorce case to a close. Anything to stop spending money on lawyers and mediators and Lord knows what else.

It is so tempting to believe that any settlement agreement is better than no settlement agreement. But it’s a lie. And when you’re desperate and fearful your judgment can be fatally clouded.

It’s similar to the feeling you have after you’ve negotiated with a used car salesman for hours and find yourself tempted to make a bad deal simply because you don’t want to walk away feeling as though you wasted all that time with nothing to show for it.

But just as you feel like a sucker the next day after you bought that overpriced heap, making a hasty settlement agreement doesn’t feel any better. In fact, it feels a lot worse. A bad deal on a used car can be minor inconvenience for a few years. A bad deal in divorce can dog you for the rest of your life.

I wouldn’t sign any divorce settlement agreement without sleeping on it first. That’s not only fair to you, it’s fair to your spouse. If the proposed deal still looks good in the morning, after you’ve had a chance to let your subconscious work on it, after you had a chance to review it with your attorney who was with you in mediation (or with an attorney for the first time, if you went to mediation without your attorney in the first place), after you’ve had a chance to review it with a trusted friend, then it’s probably a good deal and one that’s worth making. You’ll feel the peace of having taken a reasonable period of time to think it over before you sign your name and make it permanent.

If your spouse tries to pressure you into signing by claiming the deals off unless you sign right then and there, that’s probably a very good indication that it’s a bad deal for you.

Sleep on it. Any deal worth its salt will survive that.

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

[1] The reason this is a waste of time is because the mediator doesn’t find this information particularly useful. The mediator is there to help you reach an agreement, not to act as a therapist. A mediation needs to be conducted in a businesslike manner to be efficient and to provide you the greatest value.

[2] Many mediators have a personal stake in mediations because they want to brag about their high success rate. The more mediations that they conduct that end with the agreement, the more effective they can claim to be. So even if the mediator himself or herself would not make a deal if the case were his or her own, many mediators will twist arms and put a lot of pressure on parties to settle a case simply so that the mediator can claim the mediation was a success. Be aware of this possibility upfront.

It won’t be hard to tell when a mediator is putting pressure on you to settle. When that happens, recognize it and don’t give in. You don’t have to chew out your mediator for pressuring you. You may want to kindly point out to the mediator that he or she is pressuring you and that that is inappropriate. Another way of responding to mediator pressure is to point out that if and when you want the mediator’s opinion, you will ask for.

While the temptation to pressure one to settle is real, good mediators do not pressure anyone to settle. Good mediators are secure enough in their abilities and their limitations to know that whether people settle in mediation is not necessarily a reflection of the skill or effectiveness of the mediator.

Now good mediators will sometimes ask if you would like their opinion on whether the proposed settlement is appealing and worthwhile. If I were you, I would listen to such opinions. Experienced mediators can often help you recognize a good deal even when you can’t see it on your own. While it costs you nothing to hear and consider a professional opinion, it might cost you plenty if you never bother to hear the opinion out in the first place.

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A real client’s questions about divorce settlement and mediation

Here is a real client’s questions about divorce settlement and mediation. Don’t worry, I’ve removed the names and changed out the details to protect confidentiality. This client asked a lot of questions that frequently come up, so the client’s e-mail was particularly well-suited for a blog post.

I think you’ll really benefit from seeing what real people ask me and what my responses are.

The client’s e-mail and the client’s questions are in the left column below, and my responses to the client’s questions are in the right column:

Client asks:

My responses:

Eric,

I have a hodgepodge of questions…

What comes next and what are you needing me to prepare for and how to get “it” ready for you? I know I need an appraisal… do I notify [my spouse] this is coming out of the funds? …and what is the appraisal used for? Other than getting the appraisal, I don’t anticipating needing anything from you between now and the mediation date. But if anything comes up, I will notify you immediately.

The appraisal helps us get a neutral, professional opinion as to the true, market value of your house, so that you and [your spouse]—who aren’t really in any position to speak authoritatively on the value of the house—don’t have to argue about its value.

I’d e-mail [your spouse] with something simple, like this:

[your spouse],

My attorney suggested that, to get an accurate idea of the value of the house, we get an appraisal between now and our mediation date. I suggest we pay for a mutually chosen, neutral appraiser to conduct the appraisal and share the costs of the appraiser equally. How does that sound to you?

[Client]

Do you need me to still provide bank statements, paycheck subs? [my spouse] is the primary on the [credit card] and I don’t have the ability to see what is being charged or paid on that card anymore. It’s only under his login and password now. He was going to send me the rest of December [credit card] statement…but didn’t. Do you still need that from me, and do I press for it with [my spouse]? Yes, press for it. Gently, but firmly.

Press for the email password he changed too.

Even if [your spouse] never sends it, pressing for it (in a classy, non-nagging way) shows that you did you part to get it and that [your spouse] withheld it.

Should I start making plans with [my spouse] to arrange the exchange of property in dividing up the household and personal items. Do you recommend this done before mediation? Sure. If you and he can start working out the division of your personal property by agreement, start making overtures. Start seeing if you and he can agree.

It would be great if you could get this at least started before mediation. The more you can discuss or agree upon before mediation the less time and money you’ll spend in mediation. And if you can get it done before mediation, that’s great too.

Make sure that you understand that once something leaves your possession, it will be nigh on to impossible to get it back, if you want it back.

I don’t have any more money in the [my checking account with X bank]. I have no need to keep this account open, but I identified it in my Financial Declaration, so do you recommend to leave it open until the divorce is finalized? If you do say it’s ok to close and stop the account, what documentation is needed to be provided to the court in closing that account? Do you see any need for it to remain open? Any harm it would do [your spouse] if you closed it? If not, go ahead and close it, e-mail [your spouse] and tell him you closed it because there was no money left in it. You need to be able to document that you notified [your spouse] that you closed the account. If he gives you a hard time about closing the account, let me know, but I doubt he will.
Have you heard back about taxes, and how do I prepare… either way? [my spouse] has always gotten his taxes in early… I have e-mailed his attorney again about your desire to file a joint return. That’s about all we can do for now. Their failure to respond isn’t doing them any favors. You are free to inquire with [your spouse] about this too. I would, if I were you. Since we will be meeting in mediation before the filing deadline for income taxes, we can discuss this at mediation. If [your spouse] files before then, we can move the court to award you half of any refund you would have gotten had you filed jointly. Whether the court will grant that motion is not known, but the odds favor you.
Has his lawyer sail mailed his accounts statements documents?  He has always had full access and quick retrieval of all his accounts updates. Just recently he was able to quickly send me [credit card X] statements in the past few weeks.

 

The manner in which [my spouse] turned in his financial declaration and his supporting documents has me confused and baffled… as long as I have known him… he is most concerned about how he appears and is perceived by others. This has always been of highest priority to him. Do I say anything about the way he filled out his paperwork?

Nothing more than what we received the first time. You’ve seen my e-mails to his attorney asking for the supplementation/updates, but he’s ignoring me (this is normal for most divorce attorneys—not right, but normal).

Please send me anything [your spouse] has sent you by way of supplementation.

Don’t hassle [your spouse] directly about his financial declaration and supporting documents. Tell me, and let me hassle him through his attorney. His financial declaration is a joke, and his attorney knows better.

What does mediation look like? Will [my spouse] have to be here in person? [my spouse] had emailed me stating: Most divorce cases settle. Your odds of settling in your particular are good, in my opinion.

Most cases today settle in mediation.

Warning: mediators love to tell people how wonderful it is. Take this with a grain of salt.

Here is basically how mediation works:

The Mediation Process

The mediator will ask you to sign an agreement that acknowledges that what’s is discussed in mediation is confidential and not admissible in court, that the mediator cannot be called as a witness, and that you agree to pay the mediator’s fee.

At mediation you will usually start speaking with the mediator and provide background information about your marriage, your family, and what the issues are.

You’ll then meet in a conference room or office where the mediator will explain what you can expect from the process. For example, the mediator may tell you that everyone will be in the same room for the entire mediation or that you’ll meet in separate rooms (this is known as shuttle mediation) so that the mediator can get the views or positions of the parties in private and discuss their ideas and concerns openly, without the other party there to hear you.

If you reach agreement, either as to all issues or as to some, either the mediator or one of your attorneys will write a settlement agreement for the parties to sign. The settlement agreement is contractually binding. The terms of the settlement agreement will be incorporated into the Decree of Divorce.

(https://www.nolo.com/legal-encyclopedia/divorce-mediation-basics-36180.html)

If you want a good laugh, do a search on YouTube for “divorce mediation” for some of the worst acting you’ve ever seen and some of the most contrived mediation depictions. Still, you might learn a little useful information about the setting and the process, so either way, it’s worth a look.

“Regarding mediation, my plan will be to approach the meeting with an agreed upon amenable divorce so we don’t have to come prepared try to use the venue to air out the personal damages we caused each other.  I will share perspectives if you choose to go down that path but hopefully we will walk into the room with lift regarding personal matters and focus on how we will address agreed upon finances.

“I think you can see that I am doing my best to give when it comes to financial matters.  If you will do the same when it comes to the length of alimony payments asked for, this meeting could be brief and less traumatic on the already fragile lives we are living out.”

[your spouse] is a real bag of wind.

The more you can discuss in advance the more productive mediation will be.

DO NOT agree to anything with [your spouse], either orally or in writing, without consulting me first.

If you agree to anything with [your spouse], either orally or in writing, outside of mediation that may (in the case of an oral agreement) still be binding upon you (certainly in the case of a written agreement). Even just sending emails back and forth can constitute a written agreement. Don’t believe there can’t be a written agreement without there being a “formal” contract that is signed in ink. No, no.

This leads me to believe he may try engage in conversation about these matters. I have had a bare minimum interaction on as little topics as possible, because of his emails. I am needing to have more interaction on other topics of straightening out of some of our accounts. Go ahead and converse as much as you wish. Just don’t ever agree to anything with him without first consulting me.
Should I see if he’ll go ahead and give me the password to our family email? Absolutely.
Should I pay off my [credit card Y] bill I’m paying you on? If he has to pay my legal fees, would it look better to have the debt still unpaid as opposed to having them paid?? Make the monthly payment, if you like, or pay the whole balance off. I don’t think it will make any difference either way. Remember, most of the time the court does not award attorney’s fees, or if it does, it awards a fraction of what you incurred. I’m talking like 10 cents on the dollar.
More mediation questions:
What topics should I be preparing for…?? All issues raised by the pleadings of you and [your spouse].
How detailed in the personal aspects should I be ready for?? Negotiation is all business. Personal feelings and such really aren’t what mediation can help. It’s not a grievance airing session or therapy. It’s a business deal: “you get this, I get that, I trade this for that, you do this, and I’ll do that.”
[my spouse] has expressed his concern about how public the information is in mediation to me and others… so how public is it? Stupid question on his part. Mediation is private, but that doesn’t mean you can’t discuss your divorce with others.
How does [my spouse’s attorney] run his mediation?…and since [my spouse’s attorney] suggested the mediator, is there any concerns I need to be aware of??? Mediators have no power. They can make you do nothing. They make no report to the court. They can tell no one what goes on in mediation.

The mediator is not the key to a settlement. You could have a cardboard cutout serve as mediator.

Good mediators can help negotiations and may pull back from the brink a negotiation that is teetering on the edge of failure, but what makes for successful mediation and negotiation is YOU knowing what matters to you most and at what point you would say, “This and no further. If you won’t accept these terms, I’ll see you in court.”

We’re required to go to mediation, but frankly I have yet to see a “master” of mediation who can magically bring parties together.

I have no problem with our choice of mediator. I’ve used [the selected mediator] myself before. She’s good but no one special. She’s not a ringer for [my spouse’s attorney].

I do have questions about understanding alimony… for me those questions would work better in a conversation as to what our options are? What judgments can be made or set up from the beginning similar to civil judgments at that time, if any can be made similar to other civil judgments regarding money? Such as garnished wages, and other means that civil cases use? You will almost certainly not get as much alimony as you want or think you deserve.

You can have alimony awarded to be paid on a monthly basis. You can ask for a “lump sum” alimony award.

If [your spouse] does not pay child support as ordered, you can garnish his bank accounts and pay checks to ensure you get paid. The process of garnishing alimony is the same as for garnishing to collect a judgment.

I would be happy to meet with you again over lunch for an hour to discuss alimony and only alimony for the entire hour. Please call Phillip to schedule.

Thank you,

Client

You’re welcome. If you have any other questions, please ask.

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

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Rosser v. Rosser – 2019 UT App 5 – contempt of court

2019 UT App 5

THE UTAH COURT OF APPEALS

HOLLY REBECCA ROSSER,
Appellee,

v.

RONALD LEE ROSSER,
Appellant.

Opinion No. 20170736-CA
Filed January 10, 2019

Sixth District Court, Panguitch Department
The Honorable Paul D. Lyman
No. 154600013

Steven W. Beckstrom, Attorney for Appellant
Stephen D. Spencer, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        Ronald Lee Rosser and Holly Rebecca Rosser divorced in 2016 pursuant to a stipulated decree of divorce that was the result of mediation. One of the points of contention in their divorce case was how the parties would divide their 2015 tax obligations. At the conclusion of the mediation, the parties apparently agreed to split the 2015 tax liability equally. A few weeks later, however, both parties executed a stipulated decree of divorce that obligated Holly[1] to “pay any tax liabilities . . . for the year 2015.” Later, after Ronald refused to pay any of the outstanding 2015 tax obligation, Holly obtained an order to show cause and asked the district court to hold Ronald in contempt of court for refusing to pay his share of the 2015 taxes. The court granted Holly’s request and found Ronald in contempt. Ronald now appeals, and we agree with Ronald that the actions he was found to have taken do not constitute statutory contempt of court. Accordingly, we vacate nearly the entirety of the district court’s contempt order, and remand this case for further proceedings.

BACKGROUND

¶2        After twenty-five years of marriage, Holly and Ronald separated in 2014, and Holly later petitioned for divorce. Over the course of their marriage, the parties acquired various assets, including several vehicles, a residence in Panguitch, Utah, two other parcels of real property, and a number of franchise restaurants that were owned by a company in which Holly and Ronald each held a 50% stake. In addition to these assets, the parties also had certain debts, including a $29,902.71 tax obligation owed to the IRS for the 2015 tax year. The parties took opposing positions regarding the division of some of these assets and liabilities.

¶3        In an attempt to resolve their differences prior to trial, the parties agreed to participate in mediation on June 16, 2016. During that mediation session, the parties were able to come to an agreement regarding all of their issues, including the 2015 tax obligation. This consensus was memorialized in a three-page written agreement (the Mediation Agreement) that was signed by all parties immediately upon completion of the mediation. With regard to the tax obligation, the Mediation Agreement states as follows: “IRS debt from 2015, 50% Ron and 50% Holly.” The parties also agreed that Ronald would be entitled to certain “rebates” that the couple’s business received.

¶4        In the weeks following the mediation, Holly paid her half of the 2015 tax obligation. For reasons unclear from the record, Ronald did not. However, Ronald did contact the parties’ accountant and identify several additional tax deductions that he thought could potentially reduce the parties’ 2015 tax liability. Acting on Ronald’s instructions, in July 2016 the accountant prepared an amended 2015 tax return for Ronald and Holly. In preparing that return, however, the accountant mistakenly assumed that the entire previous 2015 tax obligation of $29,902.71 had already been paid, when in reality only half of it (Holly’s half) had actually been paid. As a result, the amended tax return indicated that not only did Ronald and Holly not owe any taxes for 2015, they were actually due a tax refund of approximately $7,900. Holly would later testify that, operating on the assumption that Ronald had paid his half of the pre­existing 2015 tax obligation as she had done, she believed that the amended returns were accurate and that the parties were in fact owed a refund. For his part, Ronald would later testify that he also believed the amended tax returns were accurate, but premised this belief on a different assumption: that Holly had paid the entirety of the 2015 tax obligation in consideration for other income she had negotiated from him. Apparently both under the belief that the amended returns were accurate, the parties signed those returns on or about August 22, 2016.

¶5        On or about August 4, 2016—after the amended tax returns had been prepared and reviewed, but before either party actually signed them—the parties and their attorneys all signed a Stipulated Motion for Entry of Findings of Fact and Conclusions of Law and Final Decree of Divorce. With respect to the 2015 tax obligation, that stipulation stated—in contrast to the Mediation Agreement—that Holly “shall be solely entitled to receive any refund resulting from the amended returns, and shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015.” A few days later, on August 8, 2016, the district court signed a Final Decree of Divorce (the Decree) in accordance with the parties’ stipulated motion. Under the terms of the Decree, Holly “shall be solely entitled to receive any refund resulting from the amended [2015 tax] returns, and shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015.” The Decree also states that Ronald is entitled to the rebates as agreed upon at the mediation.

¶6        Holly later discovered that the amended tax returns were inaccurate, and that instead of being entitled to a $7,900 refund for tax year 2015, the parties still owed $7,174.98. Under the terms of the recently-entered Decree, Holly was obligated to make this payment, but she considered that result unfair since she had already paid her half of the 2015 tax obligation, as the parties had agreed at mediation, and Ronald had not. In part because she felt as though Ronald owed her money related to the 2015 tax obligation, she declined to pass along to Ronald certain rebate checks she received to which Ronald was entitled under the terms of the Decree.

¶7        On November 21, 2016, Holly filed a Motion for Order to Show Cause, alleging that Ronald had defrauded her and asking the court to order Ronald to pay his share of the parties’ 2015 tax obligations as well as her attorney fees in bringing the motion. A few weeks later, Ron filed his own Motion for Order to Show Cause, alleging that Holly had willfully failed to comply with the provision of the Decree that concerned the rebates. Eventually, the district court scheduled both motions for an evidentiary hearing. During that hearing, Holly testified that Ronald had misled her into believing that he had paid his share of the parties’ 2015 tax obligation assigned to him pursuant to the Mediation Agreement. Ronald, by contrast, testified that Holly was not only aware that he had not done so, but that after mediation she had agreed to pay the entirety of the tax obligation. With regard to the rebates, Holly acknowledged that she had received rebate checks to which Ronald was entitled under the Decree, but stated that she had not passed those along to Ronald because she felt that he owed her money related to the 2015 tax obligations.

¶8      At the conclusion of the hearing, the court found that Ronald deceived Holly by allowing her to believe that he had paid his share of the tax obligation, and that Holly had not in fact agreed to pay it herself. The court then found Ronald in contempt of court for “his deliberate deceit and failure to act as agreed between the parties on June 16, 2016,” and ordered Ronald to pay Holly approximately $15,000 plus reasonable attorney fees, which were later determined to be $4,000. The court also found that Holly had “failed to make” the rebate payments to Ronald as required by the Decree, but that Holly’s conduct “did not intentionally violate the Decree” because Holly was “merely reacting to [Ronald’s] deceit.” Accordingly, the court allowed Holly to “offset” the rebate amounts she owed Ronald against the amount it determined Ronald owed her on the tax issue. After quantifying the amount of attorney fees to which it believed Holly was entitled, the court eventually entered judgment against Ronald in the amount of $18,951.11, but stated, in the judgment, that Holly “may apply” the “rebates toward the judgment and thus give [Ronald] credit” for them.

¶9        Ronald appeals from that judgment, and asks us to consider whether the district court erred in holding him in contempt. When reviewing a district court’s decision to find a party in contempt, “we review the district court’s findings of fact for clear error and its legal determinations for correctness.” LD III LLC v. Davis, 2016 UT App 206, ¶ 12, 385 P.3d 689 (quotation simplified). Ronald’s chief complaint with the district court’s contempt determination is a legal one: Ronald contends that the facts alleged by Holly, even if true, cannot constitute statutory contempt of court as a matter of law.[2] This is a legal question that we review for correctness. Id.

¶10      Under Utah statutory law, a court has authority to hold a person in contempt of court for any one of twelve enumerated reasons. See Utah Code Ann. § 78B-6-301 (LexisNexis 2012).[3] Ronald contends that none of the twelve grounds apply here, and that therefore the district court was without statutory authority to hold him in contempt. We agree with Ronald.

¶11 In this case, while it is clear that the district court found that Ronald was in contempt of court, it is unclear which of the twelve statutory grounds the court relied upon. In its order, the court stated that Ronald was “in contempt, due to his deliberate deceit and failure to act as agreed between the parties on June 16, 2016.” The court gave no other indication of the legal (as opposed to the factual) grounds for its determination that Ronald was in contempt of court.

¶12      Holly asserts that the district court implicitly relied upon two of the twelve statutory grounds for contempt: (a) the fourth one, which allows a court to find a “party to an action” in contempt for “deceit, or abuse of the process or proceedings of the court”; and (b) the fifth one, which allows a court to find a person in contempt for “disobedience of any lawful judgment, order or process of the court.” Id. § 78B-6-301(4), (5). We are not convinced that either of these grounds was appropriately invoked in this case.

¶13 The court did mention Ronald’s “deliberate deceit” as part of its reason for holding Ronald in contempt of court. But the deceit the court described in its findings was not deceit Ronald committed upon the court; rather, it was deceit Ronald apparently committed upon Holly by not telling her that he had failed to pay his share of the parties’ 2015 tax obligation. In this case, there is no allegation, let alone a finding, that Ronald committed deceit or fraud on the court, and in our view subsection (4) of the contempt statute must be interpreted to include only deceit committed on the court.

¶14      We reach that conclusion after reviewing the provision in context. First, subsection (4)—unlike other subsections—is by its own terms limited to the actions of “part[ies] to the action or special proceeding.” See id. § 78B-6-301(4). Second, “deceit” is part of a short list of things that might be found contemptuous under that subsection, and the other thing listed is “abuse of the process or proceedings of the court.” Id. Our supreme court requires a “commonsense approach” to statutory interpretation in which “a word is given more precise content by the neighboring words with which it is associated.” See Thayer v. Washington County School Dist., 2012 UT 31, ¶ 15, 285 P.3d 1142 (quotation simplified). Here, the entire thrust of the subsection is aimed at allowing a court to penalize deceitful misuse of judicial proceedings by parties to those proceedings. Ronald’s actions were all undertaken toward Holly, and not toward the court, and thus cannot fall within the ambit of subsection (4).

¶15 It is contemptible deceit, for example, to lie to a court under oath.[4] See Bhongir v. Mantha, 2016 UT App 99, ¶ 16, 374 P.3d 33. It is also contemptible deceit to file false documents, see, e.g. PacifiCorp v. Cardon, 2016 UT App 20, ¶ 3, 366 P.3d 1226, or to falsely testify during a divorce proceeding that one has very little money and then skip town with money which one has previously deposited under an assumed name, see Smith v. Smith, 218 P.2d 270, 271–72 (Utah 1950). But these are all actions taken toward the court, and we are aware of no case—and Holly provides us with none—in which a court held a person in contempt for deceit that occurred outside of the presence of the court, was directed towards another party, and did not involve false sworn testimony or the filing of a falsified document.

¶16 We share Ronald’s concern that, were Holly’s position governing law, there would be little to prevent any untruthful statement made by any party to anyone while litigation is pending from being punishable by contempt of court. Indeed, Holly’s contentions in this case are, in essence, that Ronald breached the Mediation Agreement and in the course of doing so made fraudulent statements—or at least committed fraudulent nondisclosure—toward Holly. In our view, it would stretch the meaning of subsection (4) of the contempt statute well beyond its intended meaning if facts like these, even if true, were determined to fall within its ambit.

¶17      Holly next contends that the district court could also have been relying on subsection (5), which allows a court to punish “disobedience of any lawful judgment, order or process of the court.” Utah Code Ann. § 78B-6-301(5) (2012). But the district court did not reference any judgment or order that it believed Ronald disobeyed. Instead, the only document the court mentioned was the Mediation Agreement; the court faulted Ronald for failing “to act as agreed between the parties on June 16, 2016.” It is undisputed that, as part of the Mediation Agreement, Ronald agreed to pay half of the parties’ 2015 tax obligation, and that he did not ever actually do so. But the Mediation Agreement was not an order of the court; it was just a private agreement between two parties. Breach of a private agreement that has not yet been made an order of the court cannot be a violation of subsection (5) of the contempt statute.[5]

¶18 Holly attempts to defend the court’s contempt order by asserting that Ronald was not only in violation of the parties’ private Mediation Agreement, but that he was also in violation of the Decree, and that—even though the district court made no mention of it—the district court intended to hold Ronald in contempt for failure to comply with the terms of the Decree. For support, Holly directs our attention to paragraph 9(r) of the Decree, which is the paragraph setting forth the parties’ rights and obligations regarding the 2015 tax obligation. As noted above, that paragraph states that Holly is to receive any 2015 tax refund to which the parties may be entitled, but that Holly “shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015.” The plain terms of the Decree (as opposed to the Mediation Agreement) obligate Holly to pay the entirety of the parties’ 2015 tax obligation, whatever that obligation might be. While Ronald’s failure to pay half of that obligation may well violate the terms of the Mediation Agreement, such failure clearly does not violate the terms of the Decree, because the Decree imposed upon Ronald no obligation to pay any of the parties’ 2015 tax obligation.

¶19      Holly argues, however, that paragraph 9(r) of the Decree is at least ambiguous, and asks us to consider parol evidence, most notably the Mediation Agreement, in construing its terms. Holly maintains that the “ambiguity” contained in paragraph 9(r) was “the presence or absence of a tax refund,” and asserts that she only agreed to the terms of the Decree because she believed that she would receive a tax refund. Holly’s argument fails, however, because the plain language of the Decree is not itself ambiguous, and clearly obligates her—and not Ronald—to pay any outstanding tax liability. A provision is ambiguous only if “its terms are capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial ambiguities.” See Mind & Motion Utah Investments, LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (quotation simplified). If the language is not ambiguous, “the parties’ intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law.” Id. (quotation simplified). “Terms are not ambiguous simply because one party seeks to endow them with a different interpretation according to his or her own interests.” Id. (quotation simplified). Instead, “the proffered alternative interpretations must be plausible and reasonable in light of the language used.” Id. (quotation simplified).

¶20 Holly’s interpretation of the language contained in paragraph 9(r) is simply not “plausible and reasonable in light of the language used.” Id. Where the language clearly imposes upon Holly the obligation to pay whatever tax obligation the parties owed for the 2015 tax year, any interpretation that imposes that obligation, even in part, upon Ronald is simply not consonant with the plain meaning of the language used. Accordingly, Ronald’s failure to pay any portion of the parties’ 2015 tax obligation is not a violation of the plain terms of the Decree, and therefore the district court could not have properly held Ronald in contempt of court on that basis.

CONCLUSION

¶21      A statutory contempt remedy simply does not fit the facts of this case, even if we assume that Holly’s version of the facts is correct. Ronald did not commit deceit on the court, nor did he violate an order or judgment of the court. He appears to have violated the terms of the Mediation Agreement, and—although we express no opinion on the matter—he may have committed fraud or fraudulent nondisclosure upon Holly in the time period between the mediation and the entry of the Decree. But Holly’s remedy, if any, for Ronald’s actions must be found somewhere other than the contempt statute.[6] We vacate nearly the entirety[7] of the district court’s contempt order, including its order that Ronald pay attorney fees, and remand this case for further proceedings consistent with this opinion.

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

[1] Because both parties share the same surname, we identify the parties by their first names throughout this opinion. We intend no disrespect by the apparent informality.

[2] Among other additional arguments, Ronald also takes issue with certain of the district court’s factual findings supporting its contempt determination, but because we determine that the facts as set forth by Holly cannot constitute statutory contempt as a legal matter, we need not consider any of Ronald’s other arguments, including whether the district court clearly erred in any of its factual determinations.

[3] Under Utah law, courts also have inherent (non-statutory) contempt powers. See Chen v. Stewart, 2005 UT 68, ¶ 36, 123 P.3d 416 (“A court’s authority to sanction contemptuous conduct is both statutory and inherent.”). In this case, however, Holly did not ask the district court to invoke its inherent powers and, in its order, the district court did not expressly invoke any such powers. On appeal, Holly defends the district court’s order by asserting that the court had the statutory power to issue its contempt order. Because the district court does not appear to have invoked its inherent power, and because Holly does not argue that it did, we do not address whether the district court would have had the power to hold Ronald in contempt of court pursuant to its inherent (as opposed to its statutory) authority.

[4] During the course of the hearing on Holly’s order to show cause, Ronald testified that he had a meeting with Holly in July 2016 where she agreed to pay all of the 2015 taxes. Holly denied that any such meeting ever occurred, and denied ever agreeing to pay the entirety of the 2015 tax obligation. The district court credited Holly’s version of those events, and made a finding that Ronald was “not telling the truth” in setting forth his version. However, there is no indication in the remainder of the court’s contempt order that it intended to hold Ronald in contempt for the particular statement that it found was not true. The court’s specific contempt finding lists only “deceit” in “fail[ing] to act as agreed between the parties on June 16, 2016,” and makes no attempt to ground a contempt finding on any “deceit” associated with Ronald’s testimony about the July 2016 meeting.

[5] The district court ordered the parties to participate in mediation. However, Holly makes no claim that Ronald failed to participate in mediation, or that the district court intended to hold Ronald in contempt for violating its order that the parties participate in mediation. See, e.g., Rawlings v. Rawlings, 2008 UT App 478 ¶¶ 24-28, 200 P.3d 662 (holding that while complete failure to participate in court-ordered mediation may constitute a violation of a court order to participate in mediation in good faith, participating with no intention of making or considering any settlement offers does not), reversed on other grounds by Rawlings v. Rawlings, 2010 UT 50, 240 P.3d 754.

[6] For instance, a party in Holly’s situation could, among other options, (a) elect to file a petition to modify the Decree, asserting a substantial and material change in circumstances; (b) file a motion, pursuant to rule 60(b)(3) of the Utah Rules of Civil Procedure, seeking relief from the terms of the Decree on the basis of fraud; or (c) file a separate lawsuit alleging fraud, fraudulent nondisclosure, or some other appropriate cause of action, and seeking damages. We express no opinion about whether, on the facts presented here, Holly would be entitled to relief under any of these options.

[7] We do not vacate Paragraphs 20–22 of the district court’s contempt order. In those paragraphs, the district court determined that Holly had failed to comply with the provision of the Decree that required her to pass along to Ronald certain rebate checks that she might receive. Holly has not appealed those findings, and takes no issue with them in the context of Ronald’s appeal. On remand, the district court may revisit the question of whether Holly is entitled to offset her obligation to Ronald regarding the rebate checks against any other obligation Ronald may owe her, or whether a judgment in Ronald’s favor regarding the rebate checks is appropriate.

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Am I required to hire a lawyer for divorce mediation?

Question:

Can I hire an attorney after to review the documents from mediation before I sign anything?

What if I hire an attorney before we meet mediation? Do I have to tell the mediator that I have an attorney?

Will my attorney want to be at mediation?

I’m just trying to figure out what will be the best plan. My husband claims he doesn’t want an attorney. He said if I get an attorney he will get one too. I don’t want this to be a drawn out pissing match. He’s hurt, sad, and angry and I just want things to be fair, yet have my kids and my best interests protected.

Answer:

Yes, you can go to mediation without a lawyer

(and if you do, I would recommend you notify everyone in advance of this; it’s the decent thing to do, and it preserves your credibility).

You do not have to tell the mediator or your spouse that you have an attorney, if you elect to attend mediation without an attorney. The rules for what the Utah Code requires of you for divorce mediation are short and sweet, and you can read them by clicking here.

Sometimes a court will order parties to attend mediation with their attorneys (I don’t see the point in this, as courts really ought not be telling people to mediate with the aid of an attorney when there is no authority for them to do so; technically, a party could, in response to being ordered to bring his/her lawyer, simply fire his lawyer before mediation, go to mediation, and then re-hire his/her lawyer).

Should You Go to Mediation Without an Attorney?

If you choose to attend mediation without an attorney, notify your spouse that you will come to mediation in good faith to discuss and negotiate the issues and reach agreement, but that you will not sign any final, binding agreement unless and until you have reviewed any proposed written settlement agreement with an attorney. If you go to mediation without an attorney, this is the way I’d recommend you do it.

Sometimes when you tell your spouse that you will not sign any final, binding agreement unless and until you have reviewed it with an attorney your spouse your spouse (or even the mediator) may accuse of stalling the mediation process. You may be warned of dire consequences if you don’t sign an agreement reached the day of mediation. Look, any proposed or tentative agreement that can’t survive being slept on is an agreement that would likely never have worked or worked fairly. So have the courage to do as you say.

That stated, I would recommend that you attend mediation with an attorney, as opposed to going to mediation without a lawyer and then planning to review any proposed written settlement agreement with an attorney. Telling your spouse you won’t reach agreement without first taking more time to review a proposed settlement with an attorney can chill the attitude of compromise and settlement.

Your attorney should, in my opinion, want to be at the mediation settlement conference to help you negotiate and negotiate quickly, effectively, and fairly to a settlement.

Your spouse claims he/she doesn’t want an attorney? No surprise there. Nobody really wants a divorce attorney (unless perhaps the attorney is free of charge or considered to be so amazing you’d be a fool not to hire him). My feelings aren’t hurt; attorneys have come to be viewed—accurately—as providing too little value for the money they charge. But this is not true of all attorneys. You can find an attorney whose ROI (return on investment) is well worth it, and that kind of attorney is worth seeking and hiring.

I think people get it all wrong when they see “if you get an attorney, then I will too!” as an antagonistic sentiment. Both parties having good (meaning skilled, knowledgeable, sensible, values and purposes aligned with yours) helps the negotiation process work better, faster, and inexpensively. Both parties make far better informed decisions. Bringing a lawyer to mediation should not have the same effect as would bringing a gun—and if it does, you and your lawyer are doing more harm than good to the settlement process.

Mediations aren’t a time to negotiate by threat, although there is nothing wrong with standing one’s ground and taking the position of “this is my bottom line: if this isn’t acceptable to you, I believe I will do at least this well, if not better, if the case goes to trial.” Just make sure you really mean it; don’t use it as an idle threat because bluffs are easy to call.

If you and/or your spouse see hiring a lawyer as a threat, as a purely defensive move, then you are not wanting a mutual “win” by settlement, you want to “beat” the other in settlement. That is sure to result in anger, frustration, stalemate, wasted time, and wasted money. Think through your objectives. Know what matters to you most. Think through the various ways to achieve your objectives; the more creatively you think the more likely you will be to find a way. Be honest. Be fair. Be flexible. Be realistic. Start with a wish list, then pare it down to what’s likely to happen if you go to trial. A lawyer is essential to that process.

Then prepare a comprehensive settlement proposal well in advance of mediation and send it to you husband or his attorney, if he has one. Negotiation by ambush will likely result in a tremendous waste of time and money, and reduces the efficacy and likelihood of success in mediation and negotiation process.

Utah Family Law, LC | (801) 466-9277 | eric@divorceutah.com

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