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Tag: spouse

I’m a Divorce Lawyer. Too Many People Divorce.

I’m a divorce lawyer. I’m not divorced (God willing, I won’t ever be), I am opposed to divorce generally (while there are times when a divorce is plainly necessary, most of the time divorce makes what one is suffering, what one’s spouse, and what one’s family are suffering worse). The family law legal system is adequately designed but poorly administered (and that includes many of the litigants).

While I acknowledge that many people marry foolishly and recklessly, people divorce far too often.

If your marriage is not placing your physical safety or life in danger, if your spouse is not flouting his/her marital vows, and yet you are still contemplating divorce, ask yourself if it’s your spouse or even merely being married that is your problem (it likely isn’t).

If your spouse or marriage is not your problem, they are likely more help to you than a hindrance, and throwing them away will likely do you (and your spouse) more harm than good.

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

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Should You Ask for a Psychological Evaluation in Your Divorce Case? By Braxton Mounteer

The point of a psychological evaluation isn’t to establish if someone merely suffers from any mental or emotional disorder or disorders, but to help determine whether such disorders, if they exist, render your spouse a danger to himself/herself or to your children, and/or whether your spouse is a pathological liar. In other words, if your spouse suffers from a mental or emotional disorder or disorders, are the disorders relevant to any issues to be decided in the divorce action?

If you’re contemplating a psychological evaluation, ask yourself why.
Is it because your spouse is genuinely unstable or deluded and not credible, or are you trying to embarrass, humiliate, or defame your spouse?

And FYI, if your attorney recommended a psychological evaluation, don’t let that be your own basis for seeking one. If your attorney cannot honestly explain to you the justification for a psychological evaluation, your attorney is likely just trying to get you to spend money.

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

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Why Hiding Your Money in a Divorce and/or Child Support Court Case Won’t Work (and why people still try) By Braxton Mounteer

When those who will be ordered to divide assets with a spouse and/or pay child and/or spousal support (alimony) confront the matter, many try to lie about and to misrepresent their finances and their income in the hope they can avoid paying. Few involved in the support calculation effort–from the would-be support recipient to the court–believes one would tell the truth about his/her income, and this is doubly true for child support obligors who are self-employed. While it is tempting to lie about your income in the hope of receiving more than you should or paying less than you should, that’s wrong (and it most likely would not work anyway).

There are several ways one can try to hide and misrepresent income and assets during a divorce case.

  • hide physical cash in the proverbial mattress or mason jar buried in the backyard
  • hide it in a safe deposit box no one knows of but you
  • hide money in a trust account, in an account opened in the name(s) of your child(ren) or another person, in an offshore account
  • overpay taxes
  • defer salaries or commissions
  • fake debt

The deadbeat dad strategy works like this, you spend all your time working and thus generate income. However, you hate your former spouse and even though you don’t have the time with your kids that you would like you still want to provide for them. So, to avoid paying your former spouse anything, you hide your money in a trust or in an unknown bank account (or some other degree of hiding your cash like skimming or filtering) that they don’t know about. You filter your cash through several fronts (friends, family members, false debt, overpaying taxes) and after the lengthy process of laundering your money, you receive it.

 How do you enjoy the hard-earned cash that you have cleaned your name from? You don’t. You have wandered into the Walter White problem. You have money you can’t spend because that would unravel the lie. You will have to keep this lie going for 18 years, and then hope that your children forgive you in your golden years for the hardship that you put them through during their childhood (this depends on the level of poverty that you have claimed).

The housewife strategy works like this, you spend your time caring for the house and the children and generate no income. You get access to your spouse’s money either through an allowance or through direct access. You then skim off the top every time you pay a bill or get groceries or something similar. This is done through cashback or keeping the change if you are given physical cash. This adds up over time and must be started several years before your divorce. You store your nest eggs either in the form of valuables, or in physical cash. You could get a safety deposit box or a safe or hide the cash in the marital home (under floorboards, in a wall, under the mattress, or in a vase).

How do you enjoy this money? You don’t. These nest eggs are for emergencies or for your quick exit from the marriage. This strategy is entirely dependent on your former spouse not catching on that money is going missing. Hopefully they are asleep at the wheel regarding their finances and not a penny pincher. You then have to maintain the lie and not show that you have money to buy things that your former spouse has not gifted to you. How do you retrieve the money without your spouse getting suspicious? You can’t pawn your wedding ring or fill your house with luxury goods without them noticing (a distant relative can only die so many times before its suspicious).

While both strategies have their ups and downs, both involve underreporting your income and hiding it. You will get caught because you are trying to hoodwink someone who has intimate knowledge of your financial situation. You cannot hide your offshore bank account from your wife who you took to the Bahamas to open it. You can’t hide money or valuables from your husband without tearing the house down. You won’t be able to hide your income because you are trying to lie to people who have seen every trick in the book and then some. You are also required to produce documents, such as your bank account statements and lists of your property. Your spouse will keep you honest.

You are fighting an uphill battle to avoid your legal obligation. Most people do not make enough money to warrant these strategies and if you get caught, you can lose every penny you tried to hide and then some. You can try but you will most likely fail because you do not have the skill, time, money, or ability to maintain these deceptions. Do you really think you will reinvent the wheel?

Honestly, it is easier to just tell the truth because the court can just choose to not believe you. If the lie that you have told to the court has too many holes or just isn’t up to snuff, then you could just lose anyway. You care about your children, so do not give them a reason to hate you just because you want to spite your former spouse.

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If You File for Divorce, Do You Have to Serve Your Spouse With Papers?

Your spouse must be served with the summons and divorce complaint or petition before the case can proceed.

In my jurisdiction (as I believe it to be the case in all jurisdictions (you’ll need to review the law regarding who can serve the summons and divorce complaint or petition to be sure) you cannot serve your spouse yourself. A non-party to the case is required to serve the summons and complaint/petition.

Any time any lawsuit is filed against a defendant or respondent, the defendant/respondent must be served with legal process to ensure due process of law. What does “served with legal process” mean?

Black’s Law Dictionary defines it this way:

service of process. The formal delivery of a writ, summons, or other legal process, pleading, or notice to a litigant or other party interested in litigation; the legal communication of a judicial process

process n. (14c) 2. A summons or writ, esp. to appear or respond in court <service of process>. — Also termed judicial processlegal process.

Process is so denominated because it proceeds or issues forth in order to bring the defendant into court, to answer the charge preferred against him, and signifies the writs or judicial means by which he is brought to answer.” 1 Joseph Chitty, A Practical Treatise on the Criminal Law 338 (2d ed. 1826).

Being served with process is essential to due process of law. What does due process mean? Black’s Law Dictionary defines it this way:

due process (16c) The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case. — Also termed due process of law; due course of law. See FUNDAMENTAL-FAIRNESS DOCTRINE.

“The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice;

“Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Thomas M. Cooley, A Treatise on the Constitutional Limitations 356 (1868).

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections … The notice must be of such nature as reasonably to convey the required information.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950).

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

https://www.quora.com/If-you-file-for-divorce-do-you-have-to-serve-your-spouse-with-papers

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My Spouse Tells Me She Is Going to File a Motion for Temporary Orders. What Does That Mean?

I’m just at the beginning stages of a divorce case, but already in the thick of it. My spouse tells me she is going to have her lawyer file a motion for temporary orders. What does that mean?

Good question. Concisely stated, your spouse will, through her motion for temporary orders, request orders that will govern the parties on a temporary basis during the pendency of the case until final orders are made. These orders being temporary orders are not permanent orders–meaning that the court can modify those orders or completely rescind those orders before the final Decree of Divorce is entered.

Your spouse will put her requests in a document she files with the court (this is her motion). In her motion she articulates arguments as to why she should get what she is asking for.

Temporary orders typically address matters of who will pay which marital debts and obligations during the pendency of the case, so that the house doesn’t go into foreclosure, or the landlord doesn’t evict anyone, to ensure the car isn’t repossessed and so that your credit ratings aren’t hurt. Temporary orders also address issues of which of you gets to stay in the marital residence  and who has to go, issues of child custody and support, and temporary alimony.

In response to your spouse’s motion, you will almost certainly file both 1) a memorandum in opposition to her motion, arguing why her motion should not be granted or not granted precisely as she wants, and a 2) counter motion of your own requesting the relief you want. Your spouse may then file a memorandum in opposition to your counter motion and a memorandum in reply to your memorandum in opposition to her motion. You can then file a memorandum in reply to her opposition to your counter motion.

Both of you will then go before either a judge or a domestic relations commissioner for a hearing. Note: a domestic relations commissioner is like a judge, but not a judge, and whether you appear before a commissioner or a judge depends upon whether you live in a populous part of the state or in a rural or sparsely populated part of the state. High population districts have commissioners. Low population districts do not.

The hearing will likely be held remotely over Webex (which is like Zoom or Skype or Google Meet), but it is possible you may be required to go to the courthouse for the hearing.

If you and your spouse both have lawyers, then they will argue the motions before the court. If you ever saw a high school or college debate, the argument in court is a lot like that. Usually, neither you nor your spouse will testify or be asked any questions by the lawyers. This is known as proceeding by proffer. The commissioner or judge may ask a question or two, but don’t be surprised if the commissioner or judge does not.

The commissioner or judge will, at the end of the hearing either decide the matter right there from the bench or “take the matter under advisement” and issue a written or oral decision several weeks later.

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

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What are some ways to make the divorce rate drop?

First, some marriages need to end in divorce. That is why divorce exists. But divorce is not always the answer when one or both spouses is/are miserable. Far too many divorces are not only unnecessary, but take things from bad to worse. For those marriages that need not end in divorce, teach and exemplify: 

  • belief in God; 
  • trust—humbly—in God; 
  • that God’s plan for His children includes marriage and family (so He will help you when you and your spouse turn to Him for guidance and strength to overcome); 
  • love for and service to God;
    • Loving and serving God leads us to loving and serving others (especially your spouse and children). Loving and serving others leads us to love and to serve God. You cannot sustainably have one without the other; 
    • Go to church together and with your children. Associate with other families and learn from and support each other. It’s soothing and encouraging to see you’re not alone in the struggles couples and families face. It’s good to have others in your community to whom you can turn for support in good times and bad. 
  • mercy and forgiveness for human faults and frailties; 
    • Don’t demand perfection from your spouse or yourself—that’s impossible—but strive to be your best. Don’t exploit your spouse. 
    • This does not mean that wrongs go unpunished and unrestituted, but it does mean that “the punishment fit the crime,” as the saying goes; 
    • This does not mean that punishment be “curative”; See C.S. Lewis’s “The Humanitarian Theory of Punishment 
  • specifically in marriage and family: 
    • Marriage and family is a major purpose of our lives—it’s part of God’s plan for each of us; 
    • Marry because you want “us” to be happy, supported, and fulfilled together. If you marry merely for “what’s in it for me,” you’re not ready or worthy to marry; 
      • Being equals in marriage does not mean that you and your spouse are the same in every respect. Accept it. Adapt to it. Celebrate it. Don’t forget it. 
    • Be honest in your dealings with your spouse and worthy of trust. 
    • Accept that certain aspects of a good married life and of single life are incompatible, so those aspects of single life must be left behind and replaced to serve your role as a spouse and parent; 
    • Accept the bitter aspects of married and family life with the sweet; 
      • “Anyone who imagines that bliss is normal is going to waste a lot of time running around shouting that he’s been robbed. The fact is that most putts don’t drop, most beef is tough, most children grow up to just be people, most successful marriages require a high degree of mutual toleration, most jobs are more often dull than otherwise. Life is like an old time rail journey…delays…sidetracks, smoke, dust, cinders and jolts, interspersed only occasionally by beautiful vistas and thrilling burst of speed.” — Gordon B. Hinckley 
    • Learn to make the compromises in your habits and lifestyle that marriage requires. 
      • Don’t die on the hill of whose responsibility it is to take out the trash, whether “breakfast for dinner” is untenable, etc. Go to movies and restaurants you don’t like sometimes, if going is something your spouse enjoys (he/she needs to make the same accommodations for you too). 
      • It will seem as though you are “making sacrifices” when in reality you are continuing to grow and mature as a person. You are developing dormant talents and new skills that a successful marriage needs to thrive. 

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

https://www.quora.com/What-are-some-ways-to-make-the-divorce-rate-drop/answer/Eric-Johnson-311 

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Is it easier to get a divorce if you and your spouse have nothing shared?

Is it easier to get a divorce if you and your spouse have no debts, no shared property, and no children?

Typically, generally, usually, yes. In the overwhelming majority of cases. 

You identified three of the top four reasons, in my opinion, that divorces are acrimonious and bitterly fought over protracted and ruinously expensive periods of time (the fourth big reason is alimony). The fewer the reasons to fight, the faster, less expensively, less physically and emotionally burdensome, and easier the divorce process is. 

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

https://www.quora.com/Is-it-easier-to-get-a-divorce-if-you-and-your-spouse-have-no-debts-no-shared-property-and-no-children/answer/Eric-Johnson-311  

 

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Can you go back to your ex-spouse after a divorce?

Yes, there is no law (I know of in any jurisdiction of which I am aware, but check in your jurisdiction to be sure) against a divorced couple resuming a romantic relationship or from remarrying. 

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

https://www.quora.com/Can-you-go-back-to-your-ex-spouse-after-a-divorce/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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Can anyone find out which spouse filed for a divorce?

I cannot speak for all jurisdictions, but in the state of Utah (where I practice divorce and family law), if you know that a couple is divorcing or is divorced, and you know the name of at least one of the members of the couple (and it wouldn’t hurt to have a birth date to, especially if the name of the person getting the divorce is a common one like “Mike Smith”), then you can either go to the courthouse or get online to check court records, find the case number under which the divorce action was filed either by one of the spouses or against the other spouse, at which point you can discover who the petitioner is or was (the “petitioner” is the name of the party that initiates the divorce action, and the “respondent” is the name of the spouse was being sued for divorce).

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

https://www.quora.com/Can-anyone-find-out-which-partner-filed-for-a-divorce/answer/Eric-Johnson-311?prompt_topic_bio=1

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Are family members allowed to be character witnesses in a divorce case?

Questions regarding one’s character as a spouse and parent often arise in a divorce and/or child custody case, and family members are often some of the best, if not the best, character witnesses on subjects that frequently arise in divorce and child custody cases. What kinds of questions? For example, questions about a party’s parental fitness and character may because family members are often the most percipient witnesses, meaning they are those who have observed a party as a parent most often, most accurately, and most reliably.

As you might have guessed, one of the reasons that family members are not seen as the best witnesses generally (whether a fact witness or character witness) is because there will always be a question of whether your mom or dear uncle Milt is a reliable source of accurate information about you, as opposed to being someone who will propagandize for you irrespective of the truth. It’s not unreasonable to presume that a family member might choose loyalty to you over being completely honest about you.

Sometimes, a family member may be your best, even your only, witness on a particular issue. So, if you aren’t afraid that your family member has dirt on you, and if you trust that your family member will both be honest and come across as honest, don’t write off a family member as a witness merely for being a family member.

Some people confuse a character witness with “a witness who will say things that are helpful to my case, so that the court will side with me.” It’s understandable if someone who is not an attorney believes that a divorce or child custody case is a popularity contest, but it’s not. If your witness doesn’t have believable testimony to give on a relevant issue, you shouldn’t call that witness to testify. For example, if you were to bring in any witness, family member or otherwise, to say that generally your spouse is mean and therefore should be treated harshly when it comes to dividing marital assets, such witness testimony is not only totally irrelevant evidence, but wasteful of court time and thus very irritating to the judge. Additionally, bringing in a dozen character witnesses to say the same thing about your character or the character of your spouse is unnecessarily cumulative and the court would almost certainly not permit a dozen witnesses to say duplicative things when one or two, maybe three witnesses would suffice.

Sometimes, your attorney may advise you not to call a family member as a witness to protect you from having that family member intentionally or inadvertently say things about you that paint you in a bad light. Sometimes, your attorney may advise you not to call a family member as a witness because you are unsure of what the witness would say or you know that the family member is a chatterbox who doesn’t know when to shut up.

Bottom line: 1) family members are not barred from being character witnesses; 2) family members are often the best or among the best of your character witnesses; 3) don’t be afraid to utilize family members as character witnesses, as long as they will come across as credible witnesses who won’t intentionally or inadvertently say damaging things about you; and 4) avoid poisoning the opinion of the court against you by ensuring that you do not call “character witnesses” to testify on subjects and issues that have nothing to do with your or your spouse’s character.

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

https://www.quora.com/Why-arent-family-members-allowed-to-be-character-witnesses-in-a-divorce-case/answer/Eric-Johnson-311?prompt_topic_bio=1

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What would happen if there were no alimony or splitting assets in divorce without kids?

That is an interesting question. Before I answer it, know this: anyone who is motivated to marry on a “what’s in it for me?” basis and who stays married motivated by a “what’s in it for me?” basis is likely to be unhappy in his/her marriage and likely will end up divorced. Marriage success and happiness depends upon the couple’s mutual devotion to each other, to the family they make together, and placing the interests of their marriage and family ahead of their own, individual self-interest.

Here is what I believe would happen if there were no more alimony or splitting of assets in divorce proceedings when a married couple has no children:

  • the desire for certain women to marry would plummet. Why? It’s politically incorrect to state the following, but it is no less true: many women (not all) marry so that their husbands (and now, in the case of lesbian couples, their wives) will provide for them (and only for them, not for children the couple may have) financially. If this kind of woman (i.e., a woman who relied on her spouse financially) knew that she would get no alimony upon divorce and wouldn’t get half of the funds the spouse saved and half of the retirement funds the spouse accrued during the marriage, there is a certain kind of woman who would not marry.
    • Do not misunderstand me: a woman (or man) who foregoes pursuing a career so that the couple can have children and rear a family together in the best possible conditions, with one parent staying home to care for the children instead of working outside the home, is a spouse who, if she/he has lived up to that commitment, deserves alimony if the marriage ends in divorce. The traditional family, i.e., where the children have a stay at home parent, is the optimal way to rear children who will be themselves physically and mental healthy, decent, productive adults. Some families cannot afford to have a parent stay at home. There is no shame in that. But when both spouses work even though they both don’t need to work, and where such spouses have children and warehouse those kids in daycare, they are doing themselves and their children a disservice that cannot be compensated for.
  • the desire for a percentage of heterosexual men to marry would increase. Many such men have seen their fellow male friends and family members financially ruined by alimony and by losing so much of what they worked so hard for in divorce. This causes many men to fear and avoid marriage to a woman out of concern that divorce will ruin them. Many husbands of childless couples who knew that their wives would not profit from divorce would not fear divorce nearly as much as they do now.
    • Do not misunderstand me: there are many men who are devoted to their wives and children. Their wives and family are a labor of love for whom them willingly and gladly sacrifice their time, effort, and income. There are many decent men, however, whose wives are not themselves decent people who are equally devoted to their husbands and families. Men who marry gold diggers are justifiably upset when the gold diggers try to profit from divorce.

Now if, after you read this answer in its entirety, you conclude that “marriage is for suckers,” you have missed the point completely.

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

https://www.quora.com/What-would-happen-if-there-were-no-more-alimony-or-splitting-of-assets-in-divorce-proceedings-and-no-kids-are-involved/answer/Eric-Johnson-311?prompt_topic_bio=1

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What are the Steps for Getting Divorced in Utah?

What are the Steps for Getting Divorced in Utah?

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

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

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

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

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

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

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

That’s the Utah divorce process in a nutshell.

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

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Can I kick my spouse out of the house without his/her consent?

Can I kick my spouse or our children out of the house or even off the property without their consent when it becomes clear that my spouse and I are headed for divorce?

Can I kick my spouse or our children out of the house or even off the property without their consent when it becomes clear that my spouse and I are headed for divorce? What about if my spouse is being abusive or making threats? What about if my spouse is a substance abuser and doing dangerous things?

Well, believe it or not, there is a statute in the Utah Code that treats this very subject: Utah Code § 30-2-10, entitled “Homestead rights — Custody of children”. And here is what it provides:

Neither the husband nor wife can remove the other or their children from the homestead without the consent of the other, unless the owner of the property shall in good faith provide another homestead suitable to the condition in life of the family; and if a husband or wife abandons his or her spouse, that spouse is entitled to the custody of the minor children, unless a court of competent jurisdiction shall otherwise direct.

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

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What happens after an affair when you have kids?

What happens after an affair when you have kids?

I’ll answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.

If you’ve had an extramarital affair, it generally won’t do your divorce case any favors, won’t win you any sympathizers.

But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).

Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.

While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.

If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.

Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.

Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what the Utah Code contains:

(b) The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.

(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:

(i) engaging in sexual relations with an individual other than the party’s spouse[.]

(See Utah Code § 30-3-5(9)(c))

What does this mean? The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)):

¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.

¶ 27 Accordingly, we conclude that “substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce. So when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce.

*****

¶ 53 Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination. Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may … attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,” and, “to the extent possible,” to “equalize the parties’ respective standards of living.”

¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties” because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.” So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.

¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.

¶ 56 Section 30–3–5 also provides guidance for how a court may adjust the amount and length of an alimony award in the event the court determines that one spouse’s fault necessitates a departure from the default economic alimony factors. For example, although section 30-3-5(8)(e) urges district courts as “a general rule,” to “look to the standard of living, existing at the time of separation,” it also instructs courts to “consider all relevant facts and equitable principles,” and grants courts “discretion” to “base alimony on the standard of living that existed at the time of trial.” When section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault provision, it is clear that where a court determines that one spouse’s fault would make it inequitable to maintain both parties at the standard of living enjoyed during the marriage, the court has the discretion to lower the award to an amount sufficient to sustain the at-fault spouse at a reasonable standard of living post-marriage, rather than the standard of living the couple enjoyed during the marriage.

¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.

¶ 58 Therefore, under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.

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

https://www.quora.com/What-happens-after-an-affair-when-you-have-kids/answer/Eric-Johnson-311?prompt_topic_bio=1

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Would you divorce your spouse if he/she had a child before marriage without telling you?

Would you divorce your husband if he had a child with his last relationship without telling you?

I do not believe that this would, alone, be reason to divorce your husband. He may be a good man who was a scared, confused kid back when he kept this from you. He may have matured since then. He may just have not known how to level with you (or perhaps wondered—albeit wrongly—whether he should). If he has come to regret keeping you in the dark, if you believe that, and if he has come clean and promised that there are no other skeletons in his closet, he may be a better man for it. It may well be that he is “worth” forgiving and not worth breaking up a marriage/family over it.

If discovering his illegitimate child is just the latest in a series of embarrassing/concerning facts that further reveal and confirm him as a) someone you did not believe him to be and b) as someone who cannot be trusted to deal with you honestly, then this latest disclosure may the proverbial straw that breaks the camels back. You may be more than justified in divorcing him; not because he has a child, but because he keeps secrets from you, because you simply cannot take further risks of being deceived such that you and/or your family will be victimized as a result.

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

https://www.quora.com/Would-you-divorce-your-husband-if-he-had-a-child-with-his-last-relationship-without-telling-you/answer/Eric-Johnson-311

 

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What is a motion to bifurcate a divorce in Utah? Why should I care to know?

What is a motion to bifurcate a divorce in Utah, and why should I care to know?

By Brian N. Godfrey, Legal Assistant

A motion to bifurcate to dissolve your marriage means that the court declares your marriage ended, but all the other remaining issues of your divorce action, such as child custody and division of marital assets and responsibility for marital debt remain to be resolved either by settlement or trial, if it comes to that.

Why would anyone want to dissolve the marriage first and leave the other issues to be resolved later? I’ll tell you why based upon my personal experience and the experience of others we’ve helped obtain a bifurcation.

I got a bifurcation in my divorce. My ex filed for divorce against me and I countersued her for divorce, so we both wanted to be divorced from each other, and the court knew that. In my motion to bifurcate I informed that court that my wife and I were separated a while and that I was ready to move on with my life as a single person again, without having any legal burdens and responsibilities of being married to a woman who didn’t want to be married to me either. People in that situation may want to start dating or maybe even have met someone new and want to get re-married. Luckily, my bifurcation was granted because my ex agreed with it. It’s hard to imagine how a bifurcation could harm anyone. Even if my ex-wife hadn’t wanted a bifurcation or didn’t care one way or the other, it was a relief to me. I’ve seen the same thing in the lives of our clients in the law office where I work.

A surprising number of people argue that a bifurcated divorce would “slow down the divorce case” although this is a patently ridiculous argument to make. “Why on earth would someone want to have a bifurcation and not just finish the entire thing all at once?” they say. I can think of many situations. In my own experience, getting out of my marriage was a real accomplishment that helped me know my divorce was moving forward, not stalling! It was a big and meaningful first step that encouraged me to continue efforts to finalize the rest of my divorce.

There is one good reason for opposing a bifurcation, but even that can be worked around. If you or your spouse receive medical or health insurance benefits due to your status as a spouse. Dissolving the marriage by bifurcation would strip you of your status as a spouse which would cause you to lose your insurance coverage. But unless you are someone who is hard to cover or cannot get affordable insurance on your own, bifurcation doesn’t mean you can never get replacement insurance. We’ve even worked around the insurance issue by having the party who requested the bifurcation offer to pay for his or her spouse’s new insurance coverage for a few months until new coverage is in place.

Claiming that a bifurcation will inevitably slow a divorce case down or unavoidably puts it at serious risk of slowing down or never being completed is bunk. And it’s obvious why: because if either spouse were to try to abandon the divorce case after bifurcation then the other spouse could pipe up to the court and complain and get the case moving. And if both you and your spouse were to try to abandon your divorce case after bifurcation the court can get the case moving.

So unless you know of a truly good reason against bifurcation that I don’t, it is impossible to convince me that a bifurcation that dissolves your marriage up front is “harmful” to anyone or “slows down the process” because for me, it did just the opposite.

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

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Can I protect marital assets from my spouse by “temporarily gifting” them?

Can I protect marital assets from my spouse by “temporarily gifting” assets to somebody else until after the divorce is final?

Can you? Like is it doable? Sure, you can do it. And many divorcing people do this very thing successfully (meaning they get away with it).

But is it legal? No.

Translated, your question really means: “Can I hide or hog marital assets from my spouse by falsely claiming to have “gifted” the assets to someone without ever intending to give the assets away but in fact intending to get them back after falsely claiming to have gifted them away?”

As you might imagine, this has been tried before. Courts and legislatures have noticed this kind of thing is tried all the time, which is why it’s illegal.

There’s even a term for it: fraudulent transfer. A fraudulent transfer in divorce occurs when one spouse someone knowingly transfers ownership of marital property in an attempt to deprive the other spouse of his/her portion of the ownership or value of the marital property.

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

https://www.quora.com/Can-I-protect-marital-assets-from-my-spouse-by-temporarily-gifting-assets-to-somebody-else-until-after-the-divorce-is-final/answer/Eric-Johnson-311

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Should people be allowed to file “alienation of affections” law suits?

Allowed to? Yes. I believe that if one can prove that an otherwise happy marriage was destroyed by a homewrecker, one should have a legal cause of action for alienation of affection. But I am in the minority. And indeed, some (though few) states still allow alienation of affection law suits. In fact, Kevin Howard sued in August 2017 under North Carolina’s alienation of affection law and was awarded $750,000 in August of 2019.

Would I advise it generally? No. Alienation of affections cases are becoming increasingly unpopular. Most states have outlawed a cause of action for alienation of affections. Those states that who retain the cause of action make it hard for people to prevail. When people call me asking whether it would be a good investment to sue for alienation of affections, I tell them no. Odds of success are low, costs of litigation are high. Alienation of affections cases are unpopular with courts. In today’s world there are more satisfactory and cost-effective ways to deal with alienation of affections than suing.

To prove alienation of affection in Utah (where I practice family law), the plaintiff must establish that the defendant

  1. wilfully and intentionally alienated the spouse’s affections
  2. resulting in the loss of the comfort, society and consortium[1] of the spouse, and
  3. (to justify punitive damages) a charge of malice.

Now how easy do you believe it would be to prove that somebody willfully and intentionally “stole” your unwilling spouse away? The defendant will argue that your spouse chose to step out on you (and then likely provide the court with a a laundry list of reasons for doing so, whether good or bad, whether true or false), not that your spouse was duped into leaving a perfectly happy marriage. This is what makes alienation of affection cases so difficult to win.

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

https://www.quora.com/Do-you-agree-with-being-able-to-sue-the-person-your-spouse-cheated-on-you-with-under-alienation-of-affections-laws/answer/Eric-Johnson-311

[1] The marital alliance between a Husband and Wife and their respective right to each other’s support, cooperation, aid, and companionship. Loss of consortium is an actionable injury for which money damages may be awarded. The loss of the love, sexual relations, and services of a spouse are being considered tangible injuries. (https://legal-dictionary.thefreedictionary.com/consortium).

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