Tag: settlement

What’s wrong with divorce mediation in Utah?


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 | | 801-466-9277

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Thayne v. Thayne – 2022 UT App 122 – Change of Circumstances

2022 UT App 122








No. 20200598-CA

Filed November 3, 2022

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 204900701

Devin Thayne, Appellant Pro Se

David C. Blum, Attorney for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which JUDGE GREGORY K. ORME and JUSTICE JILL M. POHLMAN concurred.[1]

BENCH, Senior Judge:

¶1        Devin Thayne appeals the district court’s order granting Stephanie Thayne’s motion to dismiss his petition to modify child and spousal support. We agree with the reasoning of the district court and affirm.


¶2        Devin and Stephanie[2] were married in June 2010 and separated in April 2019. At the time of their separation, the parties lived in California, and their divorce proceedings therefore commenced in California. As part of their divorce proceedings, a hearing was held on December 10, 2019. At the hearing, the parties came to an agreement regarding custody and visitation schedules of their three minor children, and the court entered a stipulation and order addressing those issues that same day. At this time, both parties were anticipating a relocation to Utah, and the stipulation recognized this “period of transition” and noted, “Further order as to custody will be addressed in Utah . . . if necessary.”

¶3        At the December hearing, the parties also stipulated as to other issues, including property division, spousal support, and child support. This stipulation mentioned the impending move to Utah and the likelihood that, due to the move, “[Devin’s] annual income of $141,000 will decrease to approximately $90,000– $100,00 per year.” The stipulation also provided that Devin would pay $840 per month in spousal support, beginning January 1, 2020, and continuing for, at most, only four years (roughly half the length of the nearly nine-year marriage), and that Stephanie was “to make reasonable efforts to become self-supporting within a reasonable period of time.” Additionally, the stipulation provided that Devin would maintain health insurance for the children and that “upon [Stephanie’s] employment,” she would also provide health insurance for the children “if available at no or reasonable cost through her employment.”

¶4        The parties did, as planned, move to Utah in December 2019, and Devin’s income did resultingly drop to $90,000. Thereafter, on February 18, 2020, the California court entered a judgment of dissolution (the Judgment). The Judgment incorporated the parties’ stipulations made at the December hearing and finalized the divorce.

¶5        About two months later, on April 22, 2020, Devin filed a petition to modify the Judgment in Utah. Devin argued that “his dramatic reduction in income” amounted to a “substantial and material change in circumstances” that warranted a change to the previously ordered spousal support and child support amounts. Devin argued the changes were also warranted by a change in Stephanie’s income, stating, “[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income.” Additionally, Devin’s petition to modify raised issues surrounding the mechanics of the children’s visitation, arguing that the Judgment “fails to detail how the parties are to exchange the minor children” considering that the two older children were in school and the youngest child was not yet school-aged. He requested that he be allowed to return all three children in the morning instead of having to wait to return the youngest child at noon, as provided for in the Judgment.

¶6        Stephanie responded with a motion to dismiss or, alternatively, a motion for summary judgment. She argued that Devin’s petition to modify rested on changes in circumstances that were foreseeable when the Judgment was entered and that, therefore, his petition must be dismissed.

¶7        The district court granted Stephanie’s motion to dismiss in its entirety. The court determined that there was no indication that the Judgment was not already calculated based on Devin’s anticipated reduction in salary to $90,000–$100,00 per year. The court explained,

The order was finalized and entered after the move and the initial payments were set to be made while the parties already were to live in Utah. It stretches the imagination of the Court to the breaking point to believe that the California court would enter an order fully expecting income to have dropped before even the first payment would be made.

As to spousal support, the court recognized that “differences in earning potential . . . should be given some weight in fashioning the support award” and that this factor was presumptively already considered by the California court making the award. (Quotation simplified.) And as to visitation, the court pointed out that the issue was addressed in the Judgment, which specifically provided that the children would be delivered “at school or if no school at noon.” The court therefore determined that it did not find a “significant unforeseen change in circumstances” to support modification. (Emphasis added.) Devin now appeals.


¶8        Devin argues that the district court erroneously dismissed

his petition to modify, which dismissal was based on its determination that the facts alleged in the petition did not show an unforeseen substantial change in circumstances that would warrant modification. “We review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court.” Miller v. Miller, 2020 UT App 171, ¶ 10, 480 P.3d 341 (quotation simplified).[3]


¶9        A party may seek changes to an award of spousal or child support when there has been a substantial change of circumstances not addressed in the divorce decree. See Utah Code Ann. § 30-3-5(11)(a) (LexisNexis Supp. 2022) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.”); id. § 78B-12-210(9)(a) (“A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”). But the changes in circumstances that Devin raises in his petition that have occurred since the stipulation was drafted in December 2019—namely, his decreased income and Stephanie’s availability for employment—were foreseen and addressed in that stipulation. Furthermore, these changes in circumstances that Devin raises had already occurred by the time the Judgment incorporating that stipulation was eventually entered in February 2020.

¶10 The Judgment orders Devin to pay “child support in the amount of $2,160 per month” and “spousal support in the amount of $840 per month” commencing in January 2020, shortly after relocation. And in the same section, the Judgment clearly recognizes Devin’s impending income reduction: “[Devin] anticipates that [his] annual income of $141,000 will decrease to approximately $90,000–$100,000 per year due to the relocation of himself and his employment from California to Utah.” Thus, the Judgment anticipated Devin’s lowered income, and we agree with the district court that it is implausible that the California court would have made support awards based on Devin’s old income when it recognized that a much lower income would be in effect before any payments became due.

¶11      This same support section of the Judgment also anticipates Stephanie’s future employment. The Judgment limits the maximum length of spousal support to four years[4] and states, “[Stephanie] is placed under a Gavron Admonition to make reasonable efforts to become self-supporting within a reasonable period of time.”[5] Further, the Judgment clarifies that “upon [Stephanie’s] employment[,] [she] shall obtain health insurance for the parties[’] minor children if available at no or reasonable cost through her employment.” In fact, even Devin’s petition to modify recognized that the Judgment addresses Stephanie’s future employment:

[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income. Indeed, the Judgment indicates Stephanie was required to make efforts to secure full-time employment. As such, Stephanie either has secured regular employment or now possesses the ability to secure gainful full-time employment. At a minimum, Stephanie should be imputed income at a reasonable amount considering her education, training, certificates, employment history, and any other factors reasonably considered by the Court.

So Stephanie’s return to employment was clearly anticipated in the Judgment.[6]

¶12      Thus, the Judgment addressed both the anticipated drop in Devin’s income and the possibility of Stephanie’s return to employment and accounted for them when ordering child and spousal support amounts. And therefore, these employment changes do not amount to unanticipated changes that would warrant a modification of the support amounts. Therefore, we see no error in the district court’s determination that even when viewing the alleged facts in Devin’s favor, no substantial change in circumstances had occurred that was not addressed in the Judgment; and consequently, we see no error in the dismissal of Devin’s petition to modify.

¶13      Devin, however, points to language in the stipulation that he argues implies that the Judgment was “a very loose order intended only to last until more was known in Utah.” First, he points to a general provision at the close of the Judgment stating, “The issues of child custody and visitation, child support and spousal support are transferred to the county in which the parties’ minor children will be residing in Utah effective immediately upon entry of this judgment.” But we do not agree that this language is an indication that the support awards should be revisited upon relocation; instead, where the parties had already relocated upon entry of the Judgment, the language simply demonstrates an awareness that any unanticipated issues or changes of circumstances that might arise in the future (in the nearly fifteen years before the children would all become adults) would be appropriately dealt with in Utah instead of California.

¶14 Second, Devin relies on language in the child custody stipulation that mentions relocation and then states, “Further orders as to custody will be addressed in Utah upon parties’ move, if necessary.” However, this mention (and in particular its “if necessary” limitation) simply clarifies what would happen if changes were warranted in the future and is not an indication that the California court expected the divorce decree to be modified upon relocation. Furthermore, this reference specifically mentions only the modification of child custody, which is largely unrelated to the income changes raised in Devin’s petition to modify.

¶15 Third, Devin points to the Judgment’s failure to address the issue of how the children would be claimed on the parties’ taxes as evidence that the Judgment was intended to be only temporary. But, again, this omission does not suggest that the California court expected that its support awards would be recalculated upon arrival in Utah.

¶16      Devin also raises contract principles to argue that the intent of the parties regarding future modification should have been considered by the district court when determining if modification was appropriate. But even assuming the intent of the parties would be relevant, there was no ambiguity in the stipulated agreement suggesting that immediate modification was intended after relocation to Utah, nor was there any indication that this remained an open question. Although Devin tries to introduce additional materials that he argues show such an intention, even under contract principles those materials would not be considered because of the unambiguous nature of the parties’ stipulation.[7] See Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179 (“When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling. If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” (quotation simplified)).[8]


¶17      We do not see an error in the district court’s determination that the changes in circumstances Devin raises were already addressed by the original Judgment. And as a result, we see no error in the court’s denial of Devin’s petition to modify.[9] We therefore affirm.



Utah Family Law, LC | | 801-466-9277

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How do lawyers drag out court cases?

How do lawyers drag out court cases?

In some respects, the ways are limited only by the power of one’s imagination, but the most common ways I have experienced in my field of practice (divorce and family law) are:

  • falsely and repeatedly claiming and/or contriving scheduling conflicts, thus causing deadlines and hearings and trial preparation activities to be delayed; and
  • teasing the opposing party with the prospect of or potential for settlement as a means of preventing or protracting/delaying discovery and/or delaying a trial.

Utah Family Law, LC | | 801-466-9277

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Are older lawyers better?

Are older lawyers better?

If by “older” you mean lawyers who are not fresh out of law school, the answer is: almost always yes.

They don’t teach you how to practice law in law school, they teach you how to read, research, understand, and interpret the law in law school. Law schools are getting better at providing more “clinical” experiences to law students, but law students fresh out of law school typically don’t know how to draft pleadings, prepare a case, negotiate a good settlement, and argue a case in court. I didn’t when I passed the bar. I had to learn all that through “on the job training”.

Some law students get clerkships or internships during law school that do a superb job of showing these student the ropes, so that by the time they pass the bar they have one or two years’ real-world experience in the practice of law. And some other law students are just so naturally talented and driven and autodidactic that they take to learning the practice of law like a duck takes to water.

Some say that attorneys need about 5-7 years in full-time practice before they really know what they are doing. I think that’s a good rule of thumb. Don’t pass over the less experienced prodigies if you can find them, however (and finding them will take some effort on your part). Exceptional newbies are the best value because they’re skilled yet priced lower than attorneys who have been in practice longer (notice my choice of words here: “been in practice longer” is not synonymous with “more experienced”; simply having a law license year over year doesn’t make you a skilled lawyer, so find out how active an attorney is before choosing on the basis of how long he/she got his/her law license. An attorney who has been licensed for 15 years and has no clients isn’t likely a good choice).

If by “older” you mean lawyers who are a few years short of retirement or death, then the answer is: almost always no. As with many activities, the effective practice of law is not for the old and infirm. If you don’t have the stamina to do the reading and writing and court appearances, you’re almost surely going to lose the case. Attorneys who are so old they’re forgetting details are not going to do your case any favors. Moreover, a lot of very old attorneys get jaded or complacent, lacking that fire in the belly that they need to have to motivate them to do their best work. They start coasting on their “experience,” letting their paralegal and office staff handle more and more of a case, rather than putting in the work your case needs to succeed.

Utah Family Law, LC | | 801-466-9277

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Why do lawyers like to handle large divorce settlements?

Why do lawyers like to handle large divorce settlements?

The more complex and acrimonious the case and/or the more there is at stake, the more work there is to do. The more work to do, the more money it costs to fight and resolve the case. The more it costs to fight and resolve the case the more money a lawyer is paid to fight and resolve the case. Like most everyone, lawyers want more, rather than less, money. This is why lawyers like to handle these kinds of cases.

And before some clown comments with “Yeah, all lawyers make divorce cases drag on needlessly, so that they make more money,” know this: there are certainly such lawyers out there, but not all lawyers are like that. Even most, perhaps, but not all. You can find lawyers out there who won’t charge more than good value demands. They are hard to find, but well worth finding.

Utah Family Law, LC | | 801-466-9277

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If we agree on our divorce terms, do we need attorneys?

If we agree on our divorce terms, do we need attorneys?

In a less complicated divorce, where each party has already agreed to the split of assets, do they each need to hire their own attorney, and why or why not?

I can answer your questions conclusively in less than 100 words:

If your spouse and his/her lawyer submit to you a proposed agreement that appears to you (and you are not a lawyer yourself) to be a good, fair deal, would you prefer A) just to sign it hoping that it doesn’t contain any errors, omissions, or tricks and traps; or B) to sign it after first having your own independent counsel (i.e., your own lawyer) review the proposal to ensure it doesn’t contain any errors, omissions, or tricks and traps in it?

The correct course of action is obvious.

Utah Family Law, LC | | 801-466-9277

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Should I review the proposed settlement agreement with my own lawyer?

In a less complicated divorce, where each party has already agreed to the split of assets, do they each need to hire their own attorney, and why or why not? Should I review the proposed settlement agreement with my own lawyer?

I can answer your question conclusively in less than 100 words:

If your spouse and his/her lawyer submit to you a proposed agreement that appears to you (and you are not a lawyer yourself) to be a good, fair deal, would you prefer A) just to sign it hoping that it doesn’t contain any errors, omissions, or tricks and traps; or B) to sign it after first having your own independent counsel (i.e., your own lawyer) review the proposal to ensure it doesn’t contain any errors, omissions, or tricks and traps in it?

The correct course of action is obvious.

Utah Family Law, LC | | 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 | | 801-466-9277

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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?


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 | | 801-466-9277

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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 | | 801-466-9277

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Can you tell the judge to award no alimony if both parties agree and settle?

Well, you can’t dictate to your judge as to what your judge will do, but if you and your spouse agree that no alimony will be awarded and then tell the judge that that is how you and your spouse want the judge to rule, 9 1/2 times out of 10 the judge will do as the parties agree.

This is true of most settlement agreements reached in divorce as to virtually any and every issue the case. If you and your spouse reach agreement as to settlement of an issue, the judge will do as the parties agree, unless what the parties have agreed to constitutes a violation of the law or if the judge deems the agreement to be inequitable.

Utah Family Law, LC | | 801-466-9277

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Should we put divorcing couples in an adversarial divorce court system?

People who are getting divorced fall into one of two categories:

  • those who want to divorce while doing each other as little harm as possible; and
    those who don’t care what happens to their spouses in divorce and who are driven by self-interest, vengeance, and/or malice.
  • Couples in the first group are not forced into being adversarial with one another or forced to process their divorce to completion through an adversarial system. If and when they simply treat each other as each of them wished to be treated, they can dissolve their marriage and divide their property and responsibility for debts between them in a fair, expeditious, and economical manner, without having to involve the court other than having the judge approve their divorce settlement.

Most divorcing couples would choose—and correctly choose—to be nonadversarial if they understood that our adversarial system is an emotional and financial meat grinder.

But, as is typical of human nature, almost everybody going through a divorce for the first time doesn’t believe the horror stories they are told about divorce, or if they do believe the stories (and these stories are true, folks), nevertheless believe that they are exceptional. Their fear, anger, and avarice blind them to reality, causing them to believe that their divorce experience will beat the odds. Fools. Damn fools (and I’m a divorce lawyer, but that doesn’t mean I want to see anybody spend money on my services needlessly). Sometimes you need to go through the court system for a divorce. Sometimes you can’t avoid it. But if you can, for the sake of you, your kids, and yes, even your terrible spouse, don’t seek to vindicate yourself in the court system, seek to extricate yourself from it as much as you effectively can.

Utah Family Law, LC | | 801-466-9277

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Why doesn’t family law immediately use collaborative law practices to reach decisions?

Because 1) paradoxically, those for whom the true collaborative law process would work best are those who really don’t need collaborative law; and 2) “collaborative law” as it is practiced (as opposed to how it should be practiced) are not the same thing.

Now there’s going to be a collaborative family lawyer who will read this response and tell you that I am wrong and that collaborative law works wonders. you’ll notice, however, that that this so-called collaborative lawyer will avoid the hard questions, which include (but are not limited to): does collaborative law succeed without both parties to the case being committed to the success of the other?

On the surface, collaborative law sounds like a great idea, but as it is practiced it just doesn’t work for the majority of people because what goes by the name “collaborative law” among most of its ostensible practitioners is overwhelmingly 1) not truly collaborative and 2) was never really intended to be. ‘Kinda like the salesman who claim not to be “selling to” you but “selling for” you. Yeah, right. Sure, it can happen, but human nature being what it is, the odds are highly against it.

Even the name “collaborative law” is misleading in most cases because what passes for “collaboration” is just conflict avoidance and compromise, not seeking to make life better for both yourself and your spouse and family.

If you and your spouse are those who could benefit from collaborative law to settle your divorce case, you probably could have settled your divorce case without the complexity, burdens, and expense of the institutional “collaborative law” process.

Frankly, very few divorce cases consist of two people who do not see themselves as adversaries, but as being interested in helping each other leave each other better than they found each other. Now when’s the last time you heard of the divorce ending like that? If divorcing couples could get to that point, they’d choose to stay married, rather than divorce.

Here’s an article that claims to describe for you how the collaborative divorce process works:

How Collaborative Divorce Works – FindLaw

And here’s an article by the same company explaining to you some of the flaws in collaborative law as it is practiced today by 99.5% of the so-called “collaborative law” practitioners:

5 Reasons to Avoid Collaborative Divorce – FindLaw

Finally, here is an excellent article exposing the contemporary “collaborative law” movement as by and large a sham, and explaining why:

‘Collaborative Divorce’ Is Collaborative in Name Only – HuffPost

Utah Family Law, LC | | 801-466-9277

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Have you ever told a client he/she would be better off settling a case, only for the client to take the case to trial anyway?

Yes, and most of the time when a client decides to take a case to trial over a client’s advice the client does worse than he/she would have if he/she had taken the settlement offer.

But not always.

Which is why it’s so tempting to a client (and I’ve been a client myself) to believe the his/her case is the exception that will win at trial. I get it. I’ve been there. But the odds are that if you have a good lawyer and that lawyer advises you to settle, your lawyer’s advice is sound.

And a good lawyer won’t be offended if his/her client seeks a second or third opinion on whether to take the case to trial or settle, nor will a good lawyer be too proud to acknowledge that the second or third opinion is superior to his/her advice, if and when that second or third opinion turns out to be a better idea than settling.

Utah Family Law, LC | | 801-466-9277

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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):

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 | | 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:


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?


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.


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,


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

Utah Family Law, LC | | 801-466-9277

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