Tag: statutory

Can you get a post-judgment interest rate higher than the statutory rate?

Did you know you can request a post-judgment interest rate that is higher than the default statutory rate? 

It’s true.  

While the court does not have the discretion to lower, stay, or waive statutory interest rate, it does have discretion to exceed statutory interest if equity so requires. 

Please don’t make me regret sharing this by asking for crazy amounts of interest now.  

A judgment for child support arrearages is a “judgment” within meaning of statute providing that, unless otherwise specified by contract, judgment shall bear interest at rate of 12% per annum; thus, custodial spouse is entitled to statutory rate of interest on the judgment until paid in full; although trial court may, in its discretion under divorce statute, raise statutory interest if equity so requires, court does not have the discretion to lower, stay, or waive interest. Utah Code Ann. §§15-1-4, 30-3-5(1). Stroud v. Stroud, 738 P.2d 649 (Utah Ct. App. 1987), judgment aff’d, 758 P.2d 905 (Utah 1988). Osguthorpe v. Osguthorpe, 804 P.2d 530 (Utah Ct. App. 1990). 

Interest accruing to wife on monies due from husband in property division in divorce judgment was at statutory rate, rather than the lower rate ordered by trial court. U.C.A.1953, 15-1-4. Marchant v. Marchant, 743 P.2d 199 (Utah Ct. App. 1987).  

A higher interest rate than statutorily allowed may be equitably imposed in divorce action under where, “under the circumstances, that award is reasonable,” and, second, that an increase of 2% over the statutory interest rate imposed on the amount not paid to the receiving party within six months was not an abuse of discretion. Pope v. Pope, 589 P.2d 752, 754 (Utah 1978). In divorce action, trial court did not err in ordering that if husband failed to pay wife specified sum of cash within six months of trial court’s order that such amount would bear interest at the rate of 10% per year. Pope v. Pope, 589 P.2d 752 (Utah 1978).  

Section 15-1-4 provides the “minimum interest allowable.” Id. (emphasis added). The statute “does not preclude a District Court, under [section 30-3-5] from imposing an interest rate of more than [the statutory postjudgment rate] where, under the circumstances, that award is reasonable and equitable.” Wadsworth v. Wadsworth, — P.3d —-, 2022 WL 130617, 2022 UT App 5 (citing Stroud v. Stroud, 738 P.2d 649, 650 (Utah Ct. App. 1987) (quoting Pope v. Pope, 589 P.2d 752, 754 (Utah 1978)).  

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

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Father has 50/50 custody. Now ex is trying to take it away. What to do?

I am a father who has exercised at least 50/50 custody with my ex. Now she’s trying to take me to court for full custody and me getting every other weekend visits. How can I avoid losing 50/50 custody?

First, thank your lucky stars you are a father who currently has 50/50 custody of his children. Far, far too many fit and loving fathers who could easily exercise joint equal physical custody of their children and whose children would do nothing but benefit from the exercise of joint equal custody are needlessly and unjustifiably denied a joint equal child custody award by courts who simply cannot bring themselves to believe, much less conceive of, the idea that children being reared by both parents equally is better than relegating one parent to second class visitor status in his child’s life.

Second, the fact that you have been exercising at least 50–50 custody of your children for the past few years helps to make it much harder for your ex to build a case against you for modifying the child custody award in a manner that deprives both father and children of a 50–50 custody schedule. Again, be grateful this is the case, because if you were trying to win 50–50 custody of your children on the first go around during your divorce or other child custody legal action, the odds are grossly stacked against fit and loving fathers.

Third, if you are afraid that your judge is going to discriminate against you on the basis of sex, you need to understand this principle: “if it isn’t close, there cheating won’t matter.” Otherwise stated, you need to ensure that you win six ways from Sunday. you have to bring overwhelming amounts of evidence and proof into court, so that you leave the judge no option but to rule in your favor. Easier said than done, certainly, but now is not the time to become complacent or substitute hope for effort. Spare no expense to preserve your joint equal physical custody award. A necessary component of a winning case is that you are living a life beyond reproach. Get your house in order. If there is anything remotely amiss in your life, correct course immediately, clearly, and permanently.

Fourth, make sure you understand and that your attorney understands what statutory and case law factors and criteria govern the original child custody award and a petition to modify the original child custody award. It may be that your ex does not have sufficient grounds for a petition to modify child custody to survive a motion to dismiss.

Fifth and finally, do not take on a petition to modify child custody alone, without a vigilant and skilled attorneys assistance. There is an undeniable culture of bias and discrimination and prejudice against fathers when it comes to courts making child custody awards. This doesn’t mean that every judge in every court indulges in sexual discrimination against father, but it’s virtually impossible to tell the difference between an impartial judge and a biased one, and so you need an attorney who will not suffer fools gladly, who will defend the joint equal custody award.

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

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

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

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

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

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

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

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

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

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

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

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Is it more important to study statutes or case law?

You must study each, but that does not mean you must devote the same amount of time to each.

You must first study the statute to know what the statute provides and to see how you construe the statute before you see whether your construction and application of the statute mirrors that of the appellate courts.

Then you need to spend most of your time reviewing the appellate court decisions (case law) to ensure that you correctly understand how the appellate courts construe and apply the statute, so that you can see whether your particular client and case are helped or hindered by both the statute and the appellate courts’ construction and interpretation and application of the law.

If all you did was study appellate case law, however, then you would be doing yourself and your client a disservice. If you don’t do that, then if all you do is take the appellate courts’ decisions as gospel, you may end up perpetuating and erroneous construction and application of a statute to your client’s/cause’s detriment. There are many instances in the past and there will be many instances to come where a sharp attorney realizes that the appellate courts have misconstrued and/or misapplied the statute. So you have to read the statute first and do your best to understand its meaning and application yourself.

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

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Should there be a mandatory “cool-off” period before you file for divorce?

Should married couples have a mandatory cooling-off period before they can file for divorce? And if so how long should the cooling off period be?

Society desperately needs to reverse the obscene divorce rate. I’m all for appropriate measures to discourage and prevent divorce. Mandatory cooling off periods sound like a good idea, but upon just a moment’s reflection it becomes apparent that they are not nearly as good an idea as they seem.

What sounds good about requiring cooling-off period: prevent people from making rash decisions and divorcing hastily.

The reality: by the time one spouse or or both spouses decide to divorce, it’s a decision that’s almost always been years in the making. Requiring a 90-day or 6-month or (good grief) a one-year cooling off period just makes the couple suffer longer. Experience bears this out: in over 20 years practicing divorce law, I have yet to see a cooling off period prevent a divorce. Not once.

Besides, if divorce proceedings are commenced and then the parties think better of divorcing, then can always reconcile and dismiss the divorce action. Furthermore, even if a couple divorces and then regrets it, they have the option of either A) moving to set aside the divorce (which means the divorce decree is treated as if it was never entered) or B) reconciling and remarrying.

The intention behind a cooling off period is laudable, but it’s a “solution” that doesn’t work and isn’t needed.

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

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