BLANK

Tag: presumption

What Assumptions Can You Make About Someone Who Has Been Divorced Twice?

You can assume whatever you want about anyone or anything, but that does not mean your assumptions are accurate.

And there is this from Merriam-Webster: “Although presume and assume both mean “to take something as true,” “presume” implies more confidence or evidence backed reasoning. An “assumption” suggests there is little evidence supporting your guess.

People make assumptions all the time, often (but not always) to their detriment and the detriment of the people of whom they make assumptions. You know what they say about people who assume.

That stated, assumptions based upon sufficient evidence are not only reasonable but often warranted or even wholly justified. If you see someone turning red and then blue and appearing to be unable to breathe while making the sign of choking, you can assume he/she is choking. But it’s still an assumption. You didn’t see the would-be choking victim actually swallow anything, after all.

So, what can you safely assume about someone of whom you know nothing other than the fact that he/she has been divorced twice? In fairness to one contemplating making an assumption and to the person twice divorced:

  • It’s fair to wonder why someone has been divorced twice and whether the divorcee may not be “marriage material”—especially if you are contemplating marrying the twice-divorced person.

o   It’s fair to assume (assuming—see what I did there?—you want your marriage to last) that if you intend to marry the twice-divorced person, your marriage will have a lower chance of success than a marriage to someone who has never been divorced. Statistics indicate that in the U.S., just under 50% percent of first-time marriages end in divorce, while 65-67% of second marriages, and about 74% of third marriages end in divorce.

  • It’s unfair to assume that the divorce was the twice-divorced person’s fault either or both times. It’s fair to “wonder if”, but not to “assume that”.
  • It’s also fair to fair to “wonder if”, but not to “assume that”:

o   the twice-divorced person was the cause of one or both of the divorces and whether the divorcee has poor judgment in selecting spouses.

o   the twice-divorced person is either a sucker or someone who marries suckers.

Tags: , , , , , , , ,

Why is it difficult for a father to get child custody?

Why is it difficult for a father to get child custody?

Because there is a pernicious and false belief in far too many of the courts (not, notably, in society at large) that generally:

  1. mothers are better parents than fathers;

and thus

  1. children need the care of their mothers more than the care of their fathers;

and thus

  1. children should spend most of their time in the care of their mothers but have “a relationship” with their fathers by seeing them every other weekend, once a week, and on alternating holidays.

All other “reasons” for presuming that sole or primary custody of a child or children should be awarded to the mother derive from these three false premises, which premises/presumptions are extraordinarily difficult for a father to overcome, even if all he seeks is an award of joint equal child custody.

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

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

How do courts view mothers who abandon their family during a divorce?

How does the court view mothers that abandon their family during a divorce?

Generally, with disbelief, at first. Why? A few reasons.

One, to its credit, our culture still holds the concept and institution of motherhood in high esteem, so most people (and judges are people) believe that mothers are good, devoted caregivers. Most mothers are just that. So it is not easy to accept what our senses are conveying when a mother behaves contrary to our cultural expectations. We tend to see mothers as we want to see them, not as they always are.

Two, few bad mothers are honest with the court about being bad mothers. So the false face that most bad mothers present to the court is (primarily, but not solely, because of point number one) not only hard to detect as false, but easily accepted or acceptable as genuine.

  • One way bad mothers divert attention from their faults and misconduct is by blaming the fathers for those faults and misdeeds. Just as we tend to put mothers on a pedestal in our culture, we unfairly tend to see and treat many fathers as second-class parents. The feeling is like, “Yeah, they are important to a child’s upbringing, I guess, but they aren’t as vital and important to a child’s development as a mother, so we give dads less of the benefit of the doubt.” This is so wrong for so many reasons, but nevertheless it happens so often.
    • If kids are abused or neglected, bad mothers blame the guiltless fathers with a high rate of success in court. For example: violence perpetrated by men can be more severe than violence perpetrated by women, so if a child is a victim of domestic violence, it’s easy to assume Dad is the perpetrator (interestingly, FBI statistics show women commit just as much, if not more, domestic violence than men). If Dad has a full-time job, it’s easy to presume that Mom is the full-time caregiver, not a lazy slob who drinks herself numb every day and lets the kids run amok until Dad gets home to restore order and attend to the children’s need.

Three, even when a bad mother’s defects are unavoidably and undeniably exposed, many courts possess surprisingly great supplies of sympathy and forgiveness that they would rarely or not so readily extend to a father. It so often gets framed like this, for example: a mother who abuses drugs or alcohol is a victim whose substance abuse is a cry for help. A father who abuses drugs is a narcissist who lacks self-discipline. A mother with crippling mental health issues is deserving of our concern and rehabilitation. A father with crippling mental health issues is a danger against which the children need protection. I’ve personally witnessed many cases where mom was abusive and/or neglectful and dad was not, yet mom was awarded primary physical custody of the children because the court felt so strongly that the kids “need their mother,” that somehow mom had earned the right to be the custodial parent by virtue of being a woman, and that mom could and would overcome her shortcomings (not because there was credible evidence that she can and wanted to overcome those shortcomings, but because the court had to make such a finding to justify the award of custody to the worse of the two parents).

To be clear, I am not telling you that courts cannot identify bad mothers or that they cannot or will not shield children from bad mothers. Many people—moms and dads alike—when discovered for the mediocre, even dangerous, parents they are, are not awarded child custody and/or are subject to supervision around their children. It can and does happen. But that is not what discussed here. In response to the question of which parent among mothers and fathers gets undeserved breaks more in divorce cases, it is mothers hands down. Now you know some of the main reasons why.

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

https://www.quora.com/How-does-the-court-view-mothers-that-abandon-their-family-during-a-divorce/answer/Eric-Johnson-311?prompt_topic_bio=1

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

Who is responsible for debt when you get a divorce or if you break up?

Who is responsible for debt when you get a divorce or if you break up?

For the jurisdiction where I practice law (Utah), the law governing who can be made responsible for the payment of marital debts in divorce is very different from the law governing responsibility for debts incurred during the period of time a couple lives together without being married.

DIVORCE

Debts you and your spouse incurred jointly. The presumption in divorce is that responsibility for debts incurred jointly during the marriage (i.e., in the names of both the husband and the wife) be divided equally between the both spouses. But this presumption can be rebutted if it could be proven that there is a compelling equitable reason for an unequal division of responsibility for marital debts, such as one spouse having a significantly higher income than the other or if you can show that your spouse benefited from incurring the debt far more than you did.

But what about debts that you incurred during the marriage in your name only? Such as credit card debt for expenses you incurred for the benefit of the family? The presumption is that debts that incurred during the marriage in your name only will be your sole responsibility unless you can prove that the expenses you incurred in your name only were “family expenses,” meaning expenses that were not incurred for you sole or primary benefit, but for the benefit of both spouses or for the benefit of the parents and children or for the benefit of the children. In other words, just because the credit card or the loan or the invoice is in your name only, that doesn’t mean you should necessarily be the only one responsible for paying such a debt if the debt was for your son Jimmy’s braces, for your daughter’s wedding, or for a trip for two to Hawaii.

BREAKUP OF COHABITING UNMARRIED COUPLES

First, you need to understand the difference between mere roommates and a couple who lives together like a married couple but for the fact they are unmarried.[1]

There is both a quick, but oversimplified explanation for how the law works and a more complex explanation when dealing with division of responsibility for debts when an unmarried cohabiting couple breaks up.

The quick and oversimplified explanation: an unmarried couple that decides to live together clearly do not enjoy the same legal rights that married couples do. If a man and woman (or two gay men or two lesbians for that matter) decide they want to live together and have sexual intercourse with each other, but don’t want to be married, they certainly can do that, but one of the differences between married couples and near cohabiting couples is that one of the two members of the cohabiting couple cannot obligate the other for debts that one of them incurs. Because there is no family, one of the members of the couple cannot incur expenses as a “family expense” and thus make the other member of the couple liable for those debts or expenses. Simply (but not completely accurately) stated, cohabiting couples cannot obligate each other to debts and expenses without each other’s knowledge and consent.

The more complex explanation: You may have heard of concepts such as “palimony”; that doesn’t exist in Utah. But there are other equitable concepts that can be used to recover money from people (cohabiting or otherwise) who claim the lack of a formal contract as a means of taking advantage of others. Here are just a few:

Unjust enrichment. To establish under a claim for unjust enrichment, you must prove: 1) you conferred a benefit on your cohabitant; 2) an appreciation or knowledge of the benefit by your cohabitant; and 3) your cohabitant’s acceptance or retention of the benefit under such circumstances as to make it inequitable for your cohabitant to retain the benefit without payment of its value.

Quantum meruit (quasi- contract or a contract implied in law). To recover under quantum meruit, you must prove that your cohabitant received a benefit from you, had an appreciation or knowledge of the benefit, and accepted the benefit under circumstances that would make it unjust for him/her to retain it without compensating you.

Constructive trust. Courts recognize a constructive trust as a matter of equity where there has been (1) a wrongful act, (2) unjust enrichment, and (3) specific property that can be traced to the wrongful behavior. Such trusts are usually imposed where injustice would result if a party were able to keep money or property that rightfully belonged to another.

COMMON LAW MARRIAGE

Now remember, I am writing about what the law is in the jurisdiction where I practice divorce and family law (Utah). Utah recognizes common law marriage. Most states do not.

There are two different kinds of marriage in Utah: solemnized marriages and common-law marriages. A “solemnized marriage” is a marriage that involves the performance of a ceremony by someone authorized by the government to perform marriage ceremonies. A common law marriage is created in Utah if a couple has not entered into a solemnized marriage but who have instead entered into a contract and who:

(a) are of legal age and capable of giving consent;

(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume marital rights, duties, and obligations; and

(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

So one way to get your cohabitant to be responsible for debts that you incurred in your name only, but for the benefit of you and your cohabitant and/or you and your cohabitants children during the period of time you were cohabiting together, would be if you could prove that you and your cohabitant were common law spouses. The problem is that most people who are cohabiting are doing so expressly for the purpose of not being married. They want to live together have sex together even have children together and essentially act like a married couple without having incurred the obligations of marriage. When that is the case, common law marriage cannot exist. There are a lot of people who have cohabited for years or even decades and then split up and are then shocked to discover that they do not enjoy the same rights as they would had they been married and were then seeking a divorce. Many of these people then tried to revise history to claim that their cohabitation relationship was in fact a common-law marriage. Consequently, the claims of unmarried people who claim to be common-law spouses for the purpose of obtaining financial benefits are met with skepticism, and proving common-law marriage is extraordinarily difficult to do.

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

———————————

[1] *Two or more guys or gals who live together as roommates in the same apartment to save money while they go to college, who aren’t engaged in a romantic relationship, who aren’t having sexual intercourse with one another—they are clearly not married and they are clearly not “shacking up”. Each roommate is on his/her own for his/her own debts. If one of them generously chooses to purchase groceries for everyone in the apartment without compensation, that’s a gift. The generous roommate cannot complain about all the money he or she is “owed” when he or she decides to move out. Roommates cannot very easily obligate one another to share expenses unless they agree to do so in advance.

https://www.quora.com/Who-is-responsible-for-debt-when-you-get-a-divorce-or-break-up/answer/Eric-Johnson-311

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

I wonder which state in the U.S. has the highest rate of awarding joint physical custody of children in divorce

I wonder which state in the U.S. has the highest rate of awarding joint physical custody of children in divorce. Unfortunately, I wouldn’t be the least bit surprised if Utah isn’t it, would not the least bit surprised if it’s not even close.

Joint physical custody is clearly not always the right thing for every child, but ask children of divorce, whether they are still young children or adults, and they’ll tell you how much they miss/missed the non-custodial parent, how much they resented their time with that parent being limited and restricted, and how badly the relationship with that parent suffered (and usually deteriorated) as a result.

Spouses divorce, but divorcing parents don’t want to divorce their children. But our child custody laws and the way they are administered virtually force divorcing spouses to fight over custody of their children. Can you imagine what child custody would look like, how much simpler, less expensive and less distressing it would be for all, if it rarely, if ever, entered the minds of judges and parents that child custody should or could be an issue? If joint physical custody and joint legal custody where the rule, instead of the exception?

Take the profit motive out of child custody awards, and that would also do a lot to make a presumption of joint physical custody more popular, as well as more sensible.

The best interest of the child standard is the current standard that guides custody awards, and it is a bad standard (the standard should be the best interest of the family, both individually and collectively, but I digress); even so, the custody award that truly subserves the best interest of the child is essentially, necessarily, and by definition a custody award that is the best for the child (not merely adequate or workable or expedient).

With parental rights being one of the most fundamental human and constitutional rights, with parents naturally being far more aware of and interested in meeting the needs of children far better than any government can, and with the mountain of proof showing the damage done to fatherless and motherless children, then unless one parent has been shown to be clearly unfit to exercise custody of his or her own child, or if there is so much animus between one parent and another that they cannot live together, I don’t see how anyone can seriously argue that sole custody is best for any child. The “best parent” is both parents.

A family-friendly state cannot be such without respecting and fostering all that makes families and parent-child relationships strong and beneficial for parents and children alike.

Joint custody has to be such that it doesn’t take from the parents and children more than it gives back. When parents live in different cities, or even in different neighborhoods, then joint custody may a parent feel more “connected” to his or her children, but the children can feel isolated because they are, in fact, isolated. Unless Mom’s and Dad’s houses are within walking distance of each other, unless living with Mom and with Dad also means staying in the same neighborhood, where they are able to attend the same church and engage in the same weekly, athletic and extracurricular activities with the same friends, then half the benefits of joint custody are often lost.

Some parents’ circumstances won’t allow them to share joint custody. Some parents (few, but they exist) don’t want joint custody. Some parents aren’t fit to share custody, and some children don’t want joint custody either.

Notwithstanding, the ludicrously overwhelming majority of children want joint custody. And if money weren’t a factor in the child custody award, the ludicrously overwhelming majority of parents want joint custody. The notion that all divorcing parents must fight or want to fight over “child custody” is absurd.

With extraordinarily rare exception (to the point that the exceptions aren’t even worth considering), normal children of two fit parents don’t want their relationships with either of their parents curtailed, infringed, or damaged, period. And in divorce they certainly don’t want their relationships with either of their parents curtailed, infringed, or damaged any more than necessary. So now I ask you (rhetorically, because this simply isn’t debatable): which child custody presumption really serves the best interest of children better: a presumption of sole custody (which is Utah’s statutory presumption), or a presumption of joint custody on an equal time-sharing basis?

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

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