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Tag: money

Fair Treatment in Court by Braxton Mounteer, Legal Assistant.

The family law legal system likes to portray itself as a shining beacon of justice and equity, but I have seen first-hand that it is not. Whether it is opportunistic clients and their lawyers who will throw anything against the wall to see what sticks, or cowboy commissioners and judges who play fast and loose with the rules (and even make up their own), generally you will not get a fair shake (just a fair shake) unless you fight—and fight hard and extensively—for it.

Fight just to keep everyone honest? Really? Yes. Well, yes, in the sense that unless you don’t care about your own good character and subscribe to the “fight fire with fire” way of doing things.

If you have enough money, there is more than one lawyer out there that will take it and do and say basically whatever you want.

What about the commissioners and judges? Aren’t they motivated purely by upholding the law and the rules and dispensing justice impartially? Some are. Not all. It’s unpleasantly surprising to me how many domestic relations commissioners and judges indulge in pride, biases, apathy, and indolence.

If you know you’re innocent, if you know you’re a good person, that is rarely enough to ensure you’re treated fairly. What can you do if and when the deck is stacked against you because the opposing party is willing to lie, cheat, and steal his/her way to victory? You must fight with everything that you have. You must—if you can—produce overwhelming evidence that you are in the right (or the opposing side is in the wrong) if you are to have confidence that you will be treated fairly. That’s hard. That’s financially and emotionally exhausting. But there are no shortcuts.

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

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Why won’t courts test competing custody and parent-time proposals during the pretrial phase of a case?

Do you want to know where the real money is most often made in divorce and family law cases? Child custody and parent-time disputes, hands down.

Rarely do the parents agree on what the child custody and parent-time schedules should be. One parent wants (or says he/she wants) things one way, one parents wants (or says he/she wants) them another way. There are many reasons why (which could be the subject of numerous articles, even several volumes), but in a nutshell, the reasons boil down to a few main categories, and in the following order: money, spite, and genuine concern for the children. Money because one gets or pays more money depending upon how many overnights the children spend in a parent’s custody. Spite because many parents use or try to use a parent’s love for his/her children to wound that parent emotionally and psychologically by scheming to deprive parent and child of spending time together. And finally, sometimes (rarely) there is a genuine dispute over whether a parent is fit to exercise the amount of custody and parent-time he/she seeks.

Because there are so often ulterior motives behind a parent’s proposed custody and/or parent-time schedule, the true test of what schedule realistically subserves the best interest of the children is not (cannot be) which parent is the most credible. That’s way too subjective and fallible a standard.

Instead, and so long as each parent’s proposed custody and/or parent-time schedule is reasonable on its face, why not try them both? Why not see whether the kids do best with one or the other or neither? Rather than determine the custody and/or parent-time schedule on pure or mostly speculative bases (i.e., “I imagine/believe/hope that this proposed, but unimplemented, untested schedule will work better than the other unimplemented, untested schedule”), why not have the court implement, compare, contrast, and test competing child custody and parent time schedules during the pretrial/pendente lite/discovery phase of a child custody and/or parent-time dispute case? That way, the court has hard, real world, case-specific, family-specific data to analyze and on which to base its custody and/or parent-time orders.

In 27 years of practice, I have never had a court implement, compare, contrast, and test competing child custody and parent time schedules during the pretrial/pendente lite/discovery phase of a child custody and/or parent-time dispute case.

As long as the conflicting proposals are not obviously deleterious to the children, it’s fairly arrogant of anyone (parent or judge) to contend that “we will implement one and only one custody and/or parent-time schedule during the months or years these proceedings are pending.” It drives me up the wall when I get to trial in those situations and the court tells me, “There is no evidence that the “temporary” schedule [that’s been in place the entire pendency of the case on the basis of nothing but a proffer hearing] does not work.” Well, of course it “works”. It “works” not because it’s best for the kids, not because it’s been shown to be the best of the proposed schedules, but because we have no idea if anything is better or worse. It’s not because the kids support it or benefit from it, they were given no other choice and no other experience. It’s maddening when courts take the position of, “I won’t order your client’s proposed schedule because you and your client never proved it works.” Of course we didn’t prove it, Your Honor—you saw to it that we couldn’t! It’s a “winning” schedule not by virtue of its merits, but by default. It was never proven best for the children, it was imposed by force of inertia. It is impossible to know whether (and thus to claim that) a decision was “in the best interest of the children” when best efforts were never made in reaching that decision.

Put the parents’ proposed competing custody and parent-time schedules to a real-world test. Implement them both for a period sufficient to give them a fair chance to prove a success or failure. Perhaps one will emerge as the clearly superior schedule. Perhaps both schedules will prove inferior to a different schedule that reveals itself in the process of comparing and testing the competing schedules against each other.

There is no good reason—from a general policy perspective—why a court could not or should not, as a general policy, implement and then compare, contrast, and test competing child custody and parent time schedules during the pretrial/pendente lite/discovery phase of a child custody and/or parent-time dispute case. Indeed, the children, parents, and court have everything to gain from such a practice and nothing to lose by adopting such a practice.

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

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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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Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 5:

Help me help you, will you? The cost of a divorce attorney’s representation in Utah is simply and obviously far too high for most people. We’re talking bankruptcy or near-bankruptcy levels. Does anyone out there know how to obtain the value of a good attorney’s services without either the client or the attorney being short-changed in the bargain?

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

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How does employment effect finances in divorce?

Are Couples in which the husband didn’t have a full-time job had a chance of divorcing the following year, compared to couples in which the husband did have a full-time job? 

In my opinion, given that generally husbands still earn substantially more than wives, the “best” time for a man to divorce, if he must, is—unless he’s incredibly altruistic toward his wife/soon-to-be-ex-wife—when he’s jobless and/or poor. But this principle applies just as well to a wage-earning wife too. Why? 

If ever there may be a silver lining to being jobless and/or poor, it could be when getting divorced. 

Another divorce attorney told me many times, “Good behavior in a marriage is bad behavior in a divorce, and vice versa.” And you’ve heard the phrase, “No good deed goes unpunished.” In many situations that’s all too true. Earning a living is a good example of these principles. 

In a successful, happy marriage, earning a good living helps keep things running like a well-oiled machine. It promotes optimism and good mental and physical health. It reduces stress and worry. It wins the admiration and affection of family members. 

In a dysfunctional, miserable marriage, earning a good living usually (not always, but usually) means, when the divorce dust settles, that the guy or gal who earns more pays more to the ex-spouse. Pays more of what? Marital debt, child support, and alimony. In divorce, earning a good living goes from being a blessing to a curse. It can feel essentially like involuntary servitude because you are ordered to pay whether you want to pay. And it’s not unusual for courts to order the paying spouse to pay more than he/she practicably can. This breeds consistent resentment, depression, discouragement, stress, and worry. But is there gratitude for the payor? Forget it. Child support and alimony are far too often treated as “rights” and entitlements. 

The poor spouse has less (if any) money to pay child support and alimony. And the poorer spouse of the couple has a great argument for receiving money in the form of child support and alimony. The poorer one is, the harder it is for the other spouse and the court to justify any—let alone big—child support and alimony awards. 

Now for those of you contemplating divorce who think this means, “Ah, so I should impoverish myself before I divorce,” shame on you. Many try to game the divorce process this way (and many get away with it), and it’s easy to see what makes it so tempting. Both A) the spouse who earns a lot of money and B) the other spouse who wants to get a lot of money (from child support, alimony, and debt relief), try to fake job loss, demotion, crushing debts and obligations, illness, injury, or disability. If you think this is a brilliant innovation, you’d be wrong. Divorce courts have seen this scheme tried time and again. They see it so often that they expect both spouses to make these claims. They see it so often that they sometimes conclude that one or both spouses is/are lying about income and expenses even when they are not. Can the courts be fooled? Sure, they get fooled a lot, but not always, not even usually. That stated, I know that there are tens (if not hundreds) of thousands of dishonest people who will file for divorce each year and who will try to con the court with the “I’m poor” play. 

Bottom line: being poor (truly poor, not fake poor) is, in many ways, a winning hand in divorce, if you can prove it in the course of your divorce action. Being poor often saves the spouse who would otherwise pay through the nose. Being poor often benefits the spouse who would receive child support, alimony, and debt relief. 

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

https://www.quora.com/Are-Couples-in-which-the-husband-didn-t-have-a-full-time-job-had-a-chance-of-divorcing-the-following-year-compared-to-couples-in-which-the-husband-did-have-a-full-time-job/answer/Eric-Johnson-311  

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My estranged father keeps asking me for money, what do I do?

My parents are divorced, my father has no savings, he didn’t work for the entire period of their marriage, we were estranged for a while and now we are back, but now he keeps asking me for money, what do I do? 

Do unto others as you would have them do unto you. I fully acknowledge that is easier said than done, but that doesn’t excuse any of us from doing the right thing.  

If your father is a moocher, he has not right to mooch and you have no obligation to enable him in his mooching, just as you have no right to mooch. 

If your father is in real need and you have the ability to help him, help him. He is your father, and we are commanded by God to honor our parents, and that commandment is not qualified to apply only to good parents. I can’t claim to understand why this is (just as I can’t always understand the “reason” behind every one of God’s commandments in every situation), but I believe it. Honoring our parents does not mean turning a blind eye to their faults and misconduct. 

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

https://www.quora.com/My-parents-are-divorced-my-father-has-no-savings-he-didnt-work-for-the-entire-period-of-their-marriage-we-were-estranged-for-a-while-and-now-we-are-back-but-now-he-keeps-asking-me-for-money-what-do-I-do/answer/Eric-Johnson-311

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Is hiding money from your spouse grounds for divorce?

In the age of no-fault divorce, you don’t really need to have a good reason (or any reason at all) to get a divorce. So if your spouse is hiding money from you and you want to divorce your spouse because of it, you can seek a divorce on the grounds of irreconcilable differences. If you don’t like the way your spouse choose his or her food, you can divorce your spouse and claim irreconcilable differences. Get the picture? No-fault divorce has become essentially divorce on demand. 

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

https://megcartersspace.quora.com/?__ni__=0&__nsrc__=4&__snid3__=30666371039&__tiids__=48576687#anchor 

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Law from a legal assistant’s point of view, week 20: Lawyers

By Quinton Lister, legal assistant

My boss at the law firm where I work (Utah Family Law, LC) has informed me more than once that, “divorce lawyers are, with few exceptions, terrible people”. I am still not sure how I feel about assigning this description to all divorce lawyers (my boss is a divorce and family lawyer, after all, and he’s not a terrible person; he didn’t pay me to say that either), but I have definitely started to see some of the things that would lead my boss to come to this conclusion in my short time as his assistant. 

For instance, the process of divorce cases could be much shorter, but for the problems the lawyers cause, needlessly. So often the case drags out over a span of years. This costs people tens of thousands of dollars. I have learned that a case rarely, if ever, must drag out so long, so what factors ensure that it does when it does? One of the factors is that divorce attorneys generally make more money the longer a case drags on. If the legal profession and court system want more respect and trust, they need to address and mitigate the incentive bad lawyers have to make a profit by doing their clients a disservice in this manner. 

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

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Law from a legal assistant’s point of view, week 11: Something for nothing?

By Quinton Lister, Legal Assistant

Giving without expectation is one of the hardest things to do in this life. I often wonder in our capitalistic society why it is so important to do things for others with the expectation of payment.  

Then I became a legal assistant for a divorce attorney. 

I am amazed at how many people feel entitled to free legal services. Of course, it is true that not everyone who wants something for free is taking advantage of you, but in the case of legal practices, it is often the case. 

I am now beginning to realize that expecting payment for goods and services is not greed. It also serves as a check against abusive behavior. The amount of phone calls and emails I get from other people who are upset and demanding has shown me why it is important not to just do things for free “too much”. Some people have no problem taking advantage of others by milking others for free stuff and free services. Worse, some people who know they can get something for free abuse the privilege and try to ride that gravy train as far as it will take them. Worse, some people use the free stuff and free services to do harm.  

That’s not to say I should never be altruistic. Just the opposite. We all face times when we need help because we can’t help ourselves. But there’s a difference between a hand up and a handout.  

I can see the importance of providing protection against those who would abuse others’ compassion and generosity. Payment can be a form of protection against parasites. An honest day’s pay for an honest day’s work does a lot to ward off freeloaders. Paying for what goods and services are worth helps ensure they aren’t wasted and go where they are needed or wanted most. Paying helps us clearly differentiate between needs and wants, requirements and mere conveniences.   

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

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My spouse opens accounts in my name, forges my signature. How to stop it?

My spouse opens accounts in my name, steals checks, forges my signature. How do I get my spouse to stop?

Without telling me, my spouse opens store accounts in my name, steals my checks, forges my name on my checks and accounts. In our state, assets are divided 50/50 in a divorce, and that would be catastrophic financially for me. How do I get my spouse to stop?

This is a great question. The answer is not going to be very comforting.

Unless you are somehow able to prove to the court’s satisfaction that, in fact, your spouse opened accounts in your name without your knowledge or consent, if you cannot prove that your spouse forged your name on contracts or checks, then the poor judge can’t be expected to ignore the documents that show you—albeit falsely—have those accounts and debts and obligations. From the judge’s perspective, your spouse has very compelling evidence (even though but only you know it’s false and fraudulent). The judge needs proof that this evidence is fake before it can disregard that fake evidence.

Fortunately, it has been my experience that frequently a person in your position can often find the proverbial smoking gun that exposes your spouse’s fraud to the court’s knowledge. But if you believe you can prevail in a contest of “your word against mine,” you’re in for disappointment. Don’t leave it to chance.

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

https://www.quora.com/Without-telling-me-my-spouse-opens-store-accounts-in-my-name-or-steals-forges-my-name-on-my-checks-In-our-state-assets-are-divided-50-50-in-a-divorce-and-that-would-be-catastrophic-financially-for-me-How-do-I-get-my/answer/Eric-Johnson-311

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What is a complete list of reasons someone can file child support that cannot be fought?

What is a complete list of reasons someone can file child support that cannot be fought?

There is no such list; however, here is my list of pretty dang safe bets that you’ll be paying child support if one or more of these factors are met:

You are the biological or adoptive parent of the child for whom child support is sought and:

You meet all the statutory/regulatory criteria for your jurisdiction to obligate a parent to pay child support.

You have substantially more money than you need on a monthly basis, i.e., a surplus of money that you can obvious spare for the payment of child support.

Or you are found to be able to earn or otherwise obtain more money than you need on a monthly basis, i.e., a surplus of money that you can obvious spare for the payment of child support.

Or you earn (or are deemed able to earn) enough money such that, even if you have to reduce your standard of living slightly or even somewhat significantly to pay child support, you can still live relatively well on less than you currently spend and pay the difference in child support.

About the only sure way to avoid being ordered to pay child support is to prove to the satisfaction of the court that you are unable to earn enough money to support both yourself and the child financially. Even if the other parent has more than enough money to support the child financially and does not even need your money, most jurisdictions will order you to pay child support, if the other parent wants such an order. The child support may be minimal (say, $30 or even less), but you’ll likely be ordered to pay child support, if you aren’t the child’s sole physical custodian.

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

https://www.quora.com/What-is-a-complete-list-of-reasons-someone-can-file-child-support-that-cannot-be-fought/answer/Eric-Johnson-311

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Do lawyers ever regret helping a client or obtaining a particular judgment?

Do lawyers ever regret helping a client or obtaining a particular judgment? 

Yes, yes, of course. 

We all know that there are plenty of lawyers who will prostitute their professional skills for money and litigate any case as long as the price is right. Clearly, those lawyers should be regretting taking such cases, but don’t, or more accurately, if they do regret taking the case it’s usually because it ended up being more trouble than it was worth to them, i.e., not profitable. 

But there are other lawyers who are good and decent people, people who want to see justice done and want to be a part of that process. I consider myself one of these kind of attorneys.  

Even these attorneys, who try as best they can to represent clients whose cause they believe is just, can be duped. And I am no exception. 

Good and earnest attorneys can be fooled by people with a good sob story or even a meticulously crafted cover. When these good and earnest attorneys are exploited by such people, these decent attorneys regret it. It reflects badly on their reputations and most of all, it upsets them to know that they were used and exploited to achieve unjust ends, the very thing they got into the profession to fight and prevent. 

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

https://www.quora.com/Do-lawyers-ever-regret-defending-a-client-or-a-verdict-they-received/answer/Eric-Johnson-311?prompt_topic_bio=1  

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I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

Can you try? Yes. Will you succeed? Probably not. Unless you can prove (not persuade, but demonstrate by objectively, independently verifiable proof) that your ex-husband defrauded the court, you’re likely stuck with the decree and court orders you’ve got. This is extremely difficult in its own right. This is also extremely expensive and most people don’t have that kind of money.

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

https://www.quora.com/I-was-divorced-and-lied-to-during-my-divorce-and-I-am-disabled-can-I-take-my-ex-back-to-court-for-spousal-support/answer/Eric-Johnson-311

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Is it more important for an attorney to have the money or the talent to litigate and win a case (example in the situation of your choosing)?

Is it more important for an attorney to have the money or the talent to litigate and win a case (example in the situation of your choosing)?

There are many factors that bear on whether an attorney will be as successful as possible in handling your case. You asked about money and talent, so I will address those factors.

An attorney obviously needs the talent and skill to handle the case successfully or he/she won’t (can’t) handle the case successfully.

The attorney needs to be solvent and have enough money to keep his/doors open or the attorney can’t handle the case successfully.

Finally, the attorney needs to be paid well enough to do the job well enough.

There are many people in every trade and profession (not just lawyers) whose guiding principle is “get the customer to pay me as much as possible.” Those kinds of people (and lawyers) are to be avoided. Not only because they don’t provide value for the money but because if they have that kind of predatory, self-interested attitude toward you and your needs, they likely don’t have enough intellectual and emotional bandwidth to give your case the attention and work it truly deserves. Which means that kind of lawyer does not have what it takes to handle the case successfully because your success isn’t really that kind of attorney’s goal.

I’m an attorney. I have also been a client. What do I look for when seeking a good attorney for me?:

Honesty and good character. Yes, there are some honest attorneys of good character out there. Yes, they are hard to find, but worth finding, given that being honest is, in my book, the most important trait a lawyer must have.

Skill. A very close second to honesty and good character is skill. No, that’s not quite right. A successful attorney must be as skilled as he/she is honest and of good character. An honest but incompetent attorney isn’t going to do you any good, and an incompetent attorney can often make your situation worse than had you never hired the incompetent attorney.

Diligence/scrappiness. A successful attorney has to be willing to do the work needed. He/she needs to be willing to do the hard things and stay vigilant. This does not mean your attorney is your slave or that your attorney must sacrifice his/her mental and physical health for you, but it does mean your attorney can’t be lazy.

Resourceful and creative, able to improvise when necessary. Litigation and your will throw you curve balls. Your attorney must be able not merely to roll with the punches, but to anticipate as many of them as possible and have the smarts and tools to react to them nimbly and as productively as possible.

One who provides an honest day’s work for an honest day’s pay. In other words, an attorney who delivers value for the money. It’s not always obvious whether your attorney delivers value. Keep your eyes open. Your attorney is not a wizard who can take a sow’s ear of a case and turn it into a silk purse, so don’t expect such a thing. Value is not synonymous with “miracles.” And don’t expect more from your good attorney than value for the money. Pay the attorney what the attorney is worth. No more, no less. If you try to cheat a good attorney, he/she is too wise to allow that, and your attorney will quit.

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

https://www.quora.com/Is-it-more-important-for-an-attorney-to-have-the-money-or-the-talent-to-litigate-and-win-a-case-example-in-the-situation-of-your-choosing/answer/Eric-Johnson-311

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There is nothing a GAL could learn how to do that a judge cannot also learn how to do equally well.

There is nothing a GAL could learn how to do that a judge cannot also learn how to do equally well.

This post is the ninth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

There is nothing a guardian ad litem could learn how to do and then do that a judge cannot also learn how to do equally well and do equally well.

Some people try to make a (false) distinction between the effect of a judge questioning a child and the effect of a guardian ad litem questioning a child.

Up until a certain age, we all know that children have no idea what the difference between a judge and a lawyer is; therefore, if they’re not aware of any difference between the judge questioning them and a GAL questioning them, the effects of the questioning cannot be any more traumatic when the judge conducts the interview then when a guardian ad litem conducts the interview.

But let’s assume that we’re dealing with the interview of a child who is 14 or 15 years old or older. At that age, one might expect a child to know the difference between a judge and a lawyer. The child might even realize that the judge is the one who ultimately makes the child custody and parent-time decisions. So what?

If a guardian ad litem sat down with a child and told the 14+ years old child, “Hi, I’m Eric, and I’ve been asked to help you, your parents, and the court find out what you want and need and what’s best for you and your family when it comes to where you and your siblings live after your parents get divorced. I’d like to talk about that with you now for the next hour or so,” how would the effect on the child be any different if a judge sat down with that same child and said essentially the same thing? The answer is it clearly would not be any different merely because the one asking the questions is a judge instead of a GAL.

There is nothing about judges talking to children that is inherently harmful, just as there is nothing about guardians ad litem talking to children that inherently has a beneficial or benign effect on the child.

Claims that judges questioning children does children harm require us to presume that would be because of their status as judges, because all judges are insensitive and incompetent questioners, or both. Obviously, neither premise is true. For it were shown to be true that a judge is insensitive and/or incompetent, then the problem wouldn’t be whether the judge interviews the children, but whether the judge can be trusted to act in the best interest of the children in the first place.

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

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Believing Judges Interviewing Children Harms Children Rests on False Premises

This post is the eighth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

 

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

 

To conclude that judges interviewing children harms them rests on the false premise that judges are insensitive and/or incompetent. There is obviously no inherent difference between having a judge interview a child and having a guardian ad litem interview a child. Lawyers and judges know that there is nothing about a guardian ad litem that is any better or worse than a judge when it comes to ability to question children. Judges are former lawyers, after all.

To conclude that judges who interview children inherently harm, or inherently expose children to undue risks of harm must necessarily rest on the premise that judges who interview children are insensitive and/or incompetent. For all my criticisms of the legal system, I would be lying if I claimed that all or most or even a statistically significant number of judges are too insensitive and too incompetent to question children about child custody issues without harming them any more than an interview conducted by a guardian ad litem or custody evaluator would harm children.

 

If a judge were to claim that his or her ability to question children is worse than a guardian ad litem’s ability to question children because the judge lacked GAL training, then the problem would clearly not lie in the judge’s status as a judge but in a lack of training.

GAL training is a matter of hours, not years or even months. So, the training and skills gap between a trained GAL and an untrained judge could be closed quickly and easily by the judge getting that same GAL training. It wouldn’t even cost the judge any money because the Utah State Office of Guardian ad Litem has offered to provide judges with GAL training free of charge.

 

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

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The biological father of my child filed to establish paternity. He’s unfit and I haven’t been served yet. How can I handle this?

The biological father of my child filed to establish paternity. He’s unfit and I haven’t been served yet. How can I handle this? 

My answer applies to both mothers and fathers in this situation: 

  1. Start preparing for the showdown now. Don’t wait for trouble to find you. 
  2. Don’t try to handle this without a good lawyer (not just any lawyer, not an “affordable” lawyer, but a good lawyer, a lawyer who is skilled in the area of child custody litigation, of good character (someone who is honest and trustworthy), and diligent (works hard to get the job done right and without wasting your time and money)). If you fail to comply with the law and court rules and lose as a result, saying “I had no lawyer” is no excuse and “I had a bad lawyer” is almost never a winning argument. 
  3. The best way to win your case is with independently verifiable proof. The next best way to win is with highly persuasive evidence. The difference between proof and evidence. Proof is objective, absolute. Not in doubt. Evidence weighs on the balance of probabilities. Sometimes the evidence can be of such a nature that it is highly persuasive and convincing, but it always leaves the door open. 
  4. The riskiest way to win your case is on a “your word against mine” basis (and I would be dishonest if I did not mention that in my experience most courts tend to find the testimony of mothers far more credible than the testimony of fathers—it’s not fair, it’s sexist, but it happens nevertheless, and more often than not, in my experience). 
  5. Understand and accept that this process can take a long time and cost a lot of money and take a terrible toll on you emotionally and psychologically. Budget accordingly. Stay grounded. Watch you drug and alcohol intake. See a therapist and/or a minister for help with coping skills and a check on whether your emotions are clouding your judgment. Get some exercise, even it’s just a brisk walk each day. Don’t be afraid to lean on willing friends and family for moral support. 

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

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Terrible Financial Thinking and Divorce

Terrible Financial Thinking and Divorce

I recently came across a clickbait article filled with terrible thinking about the so-called financial “benefits” of divorce. Click here to read “7 Little-Known Financial Benefits of Divorce: Divorce is often devastating, but there are a few financial silver linings.”

In the article the writer claims the so-called 7 benefits of divorce to be:

“1. Easier budgeting and greater control over money.”

In support of this argument the writer claims that if you divorce a spendthrift or tight-fisted spouse you no longer have to contend with that spouse over money and spending. Well, sure, but not everyone who gets divorced has such a spouse. ‘Fact is that for the overwhelming majority of people divorce leaves you poorer (especially if you’re a woman). So yeah, you may have more control over your money, but you also have less of it (usually a lot less of it) to control.

“2. Early access to a retirement fund, penalty-free.”

It’s amusing that the writer would claim divorce gives you more control over money, and then suggests that as a result of your divorce you should raid your retirement account.

Even the writer had this to say about the so-called “benefits” of cashing out some or all of your retirement account: “Cashing out part of a retirement account can be a risky move,” and “Ric Edelman, founder of Edelman Financial Services, cautions people not to be too hasty about withdrawing money from an account.” . . . “Don’t make any decisions without the advice of an attorney and a financial planner,” he says. Mortgaging your future is usually a sucker’s bet.

“3. Potentially better investment returns.”

This is laugh out loud ludicrous. The argument for this supposed benefit is (and I’m not making this up) that by getting divorced you are now free to invest your money without needing the consent of your spouse. So this is really just an extension of “benefit” number 1 above. It is a useless truism to claim that divorce could lead to “potentially” better investment returns because it is equally true that divorce could lead to potentially worse investment returns.

“4. More college financial aid for the kids.”

Well, this is true, but translated it really means simply “poor people get financial aid more easily than those who are not poor.” For the overwhelming majority of people, divorce makes them poor(er). If you believe that being so poor that your kids can get more college financial aid is a “benefit,” your definition of “benefit” is rather warped.

“5. Social Security perks for older divorcees.”

This is only a benefit if you consider being divorced a good thing on its own. If you meet the requirements under the Social Security administration rules, a divorced person may qualify for benefits that are greater than what he or she would have had he or she been single at the time of retirement. Again, however, the fact of the matter is that old, retired married people generally enjoy more wealth and a higher standard of living than do single people of the same age.

“6. Opportunity to reset financial priorities.”

Opportunity? Kinda like being chased by a bear is an opportunity to go for a run?

No joke, the article literally includes this cheery statement: “Sometimes it’s financially better to have a smaller house or apartment.” Sure, sure, and the financial benefits of starving include weight loss!

“7. A better bottom line.”

I cannot put it better than the writer did herself:

“The reality is not everyone’s financial situation will improve with divorce, but some people are surprised to learn that it does.”

Yes, some people are surprised if divorce results in an improved financial situation because with rare, rare exception nobody’s lifestyle and wealth increase as a result of divorce.

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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