Tag: unfair

Why is child support and alimony rooted in revenge, power, and humiliation?

Why is child support and alimony rooted in revenge, power, and humiliation?

The full question was actually: “Why is child support and alimony rooted in revenge, power, control, and humiliation over the father instead of support for the child?”

This is a good question, but not because your question is based upon accurate information; your presumption that child support and alimony are rooted in revenge, power, control, and humiliation is not universally true in all cases.

There are certainly divorce and child custody cases that arise where a spouse’s request for alimony or a spouse’s or parent’s request for child support are unreasonably, even outrageously high and often based upon false claims of need and ability to pay.

But to suggest that the purposes of alimony are nothing other than revenge, control, and humiliation is simply not true. There are some situations where an ex-spouse (and men can receive alimony, not just women, even though the majority of alimony recipients are women) clearly needs and deserves some financial support from the ex-spouse. The purpose of alimony is to ensure that the ex-spouse awarded alimony in such a situation does not become a public charge, a welfare recipient.

Child support is an interesting subject because there is no one right way to set and implement child support policy. In some jurisdictions, child support is a fixed amount regardless of the number of overnights the children spend with each parent. In other jurisdictions, child support is based upon the child support payor’s income. Other jurisdictions calculate child support based upon the number of overnights the children spend with each parent and/or upon the income of both parents. Still other jurisdictions will consider a host of other factors. Regardless of what factors determine child support, the purpose of child support is essentially the same: to ensure the child’s needs and lifestyle are maintained as much as reasonably possible. Again, the purpose of child support, as is the case with alimony, is to provide support, not to punish or unduly burden or humiliate the payor.

That doesn’t mean that spouses, parents, and courts can’t run amok, with the results being crushingly unfair alimony and child support awards, even awards that are punitive in nature. It can and does happen on occasion, but it is, fortunately, the exception.

What arises more often than you might imagine, however, are alimony and/or child support awards that are based upon a belief that the payor’s ability to pay is far, far greater than it actually is. These poor (literally) payor’s find themselves burdened with a spousal support and/or child support obligation that leaves them with literally just a few hundred dollars per month to live on, after they have met their alimony and/or child support obligations. Such circumstances are grossly unfair but do arise sometimes. The best way to ensure that this does not happen to you is to provide the court with sufficient proof of your real income and/or your true income earning potential, so that it’s not left to the court’s imagination to determine. For some people proving one’s true income or ability to earn is easier said than done, but it is well worth the effort if it means that the court does not stick you with an alimony and/or child support obligation you cannot bear.

Utah Family Law, LC | | 801-466-9277

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Good news, for parents deserving of joint equal physical custody

Good news, apparently, for parents deserving of joint equal physical custody of their children but who have, up until now, been fighting an unfair, unnecessarily uphill battle.

The Utah Legislature passed, during the 2021 legislative session, a new Utah Code section. It’s Section 30-3-35.2. Here is a copy of the new code section (see below). Section 30-3-35.2 goes into effect May 5, 2021. Note: this is not a law that will, of itself, constitute a basis for seeking a change of an existing custody award. But if you are in the middle of a custody fight for joint equal custody or expect to be in the future, you will want to know about section 30-3-35.2. § 30-3-35.2.

30-3-35.2.Equal parent-time schedule.
(1) (a) A court may order the equal parent-time schedule described in this section if the court determines that:

(i) the equal parent-time schedule is in the child’s best interest;
(ii) each parent has been actively involved in the child’s life; and
(iii) each parent can effectively facilitate the equal parent-time schedule.

(b) To determine whether each parent has been actively involved in the child’s life, the court shall consider:

(i) each parent’s demonstrated responsibility in caring for the child;
(ii) each parent’s involvement in child care;
(iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;
(iv) each parent’s assistance with the child’s homework;
(v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;
(vi) each parent’s bond with the child; and
(vii) any other factor the court considers relevant.

(c) To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

(i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school;
(ii) each parent’s ability to assist with the child’s after school care;
(iii) the health of the child and each parent, consistent with Subsection 30-3-10(6);
(iv) the flexibility of each parent’s employment or other schedule;
(v) each parent’s ability to provide appropriate playtime with the child;
(vi) each parent’s history and ability to implement a flexible schedule for the child;
(vii) physical facilities of each parent’s residence; and
(viii) any other factor the court considers relevant.

(2) (a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.

(b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.

(c) Under the equal parent-time schedule, neither parent is considered to have the child
109     the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).

(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.

(e) (i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

(3) (a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:

(i) one parent shall exercise parent-time starting Monday morning and ending Wednesday morning;
(ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and
(iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

(b) The child exchange shall take place:

(i) at the time the child’s school begins; or
(ii) if school is not in session, at 9 a.m.

(4) (a) The parents may create a holiday schedule.

(b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:

(i) order the holiday schedule described in Section 30-3-35; and
(ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

(5) (a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.

(b) (i) One parent may make a designation at any time and the other parent may make a designation after May 1.

(ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period begins.

(c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.

(d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

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

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Judge says stay away from my paramour. Can judge do that?

Judge says stay away from my paramour. Can judge do that?

I became pregnant by my paramour after my husband and I separated. The court order states we are not to have paramours around our child. Will the judge take custody from me if I have my paramour around due to the situation?

I assume that your question is based upon a situation in which:

  • you and your husband have a child together (we’ll call that child “Child A”).
  • you and your husband are separated.
  • there is a divorce case pending, and the court has ordered that your paramour can not be around Child A (which is not an unusual order for courts to make, by the way).
  • at some point, whether before or after separation, you were impregnated by your paramour.

Now that you are pregnant by your paramour, it appears that both you and your paramour wants to be together to support one another during your pregnancy and be a witness to the miracle of birth as it unfolds. That’s understandable.

But there’s this court order that prohibits you from being with your paramour when you are with Child A. And you appear to want your paramour with you when you are with Child A. And you wonder whether the court would take custody of Child A from you if you violate the court’s order.

Your questions are essentially: is the court’s order fair? And will I lose custody if I disobey the court’s order?

The answers to your question (and for anyone in your situation) are:

Yes, the court’s order is fair. Reasonable minds can differ as to whether it is necessary that you be ordered to bar your paramour from being with you when Child A is also with you, but if a court concludes that having the paramour around might confuse the child as to who the child’s parent is and that exposing a child to adulterous relationships and/or that shacking up is morally and pragmatically unwise is well within a judge’s rational and sound discretion.

Yes, a court could base, in whole or in part, a decision to award custody of Child A to your husband upon the fact that you are disobeying its order barring you from being with your paramour when you are with Child A. Why? Because violating court orders shows that you cannot be trusted, that you place your interests ahead of law and order and/or ahead of what the court deems best for your child. Solution: don’t have your paramour around when you are scheduled to spend time with Child A. Is this hard? Perhaps. Is it worth it to ensure you don’t lose custody or parental rights? Of course.

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

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If I can’t find an attorney, can it honestly be said I got a fair trial?

If I can’t find an attorney, can it honestly be said I got a fair trial?

If a person seeks legal representation in a court, and every attorney they tries to hire refuses to represent them, can he receive a “fair trial”?

That depends upon how you define a “fair trial”. Some people mistakenly believe that in the United States every litigant is guaranteed representation by an attorney in any lawsuit. This is not true. Defendants in criminal cases that involve the risk of substantial jail time are entitled to appointment of counsel, free of charge to the defendant, if the defendant so desires.

In some jurisdictions, a parent is entitled to appointed counsel if the state petitions to terminate that parents parental rights.

There is no right to appointed counsel in civil cases. so there is no right to appointed counsel in divorce actions or personal injury actions or other cases that do not involve serious, jailable criminal charges. So, if you were to claim you could not find any lawyer to represent me and to help me in my civil suit, you could not claim that your rights were somehow violated. It could thus be said that you received a fair trial, even if you were unable to find a lawyer to represent you at trial.

But if the case was a complex one, and one where a knowledge of the laws and/or regulations, as well as the procedural rules of court, makes the difference between winning or losing, having no attorney to represent you, that isn’t a fair fight. unfair, but not illegal. You have no legal recourse in those circumstances.

I have met people who have claimed that they cannot find an attorney to represent them in a particular civil action. More often than not, the reasons why are fairly clear: the person seeking representation can’t afford to pay the attorney and/or the person does not have a winning legal argument (either because that person is clearly in the wrong or because that person doesn’t have enough evidence to win or to win in the manner that person desires).

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

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Should I be nice to my spouse during a divorce?

That depends on what you mean by “nice”.

Do you mean “with kindness”? Not necessarily kindness, but certainly decency. You are morally obligated to treat your spouse with decency, but you don’t have to go out of your way to make the spouse you are divorcing happy. You don’t have to capitulate to your spouse’s unfair or unreasonable demands.

Do you mean “with honesty and fairness”? If so, then yes: you are morally obligated to be honest and fair with everyone, but again aren’t obligated to capitulate to your spouse’s unfair or unreasonable demands, nor are you in any way obligated to tolerate being treated unfairly by your spouse.

Do you mean “forgiving”? If so, then yes: you are morally obligated to forgive your spouse for the wrong’s he/she did you, but forgiveness does not mean “acceptance”. Forgiving the people who have deceived or betrayed me in the past does not require me to trust them in the future. I forgive them so that I don’t dwell on the hurt done to me, so that I don’t let the injury continue to harm me, so that the one who did me wrong is shown the mercy needed to give him/her the best opportunity to change for the better without eternal regret or shame hampering the repentance process.

Fighting fire with fire will only intensify the pain and misery. Being the better man (or woman, as the case may be), living up to your virtuous values and standards of conduct is the only way to move on with peace and happiness (and you can get back there). Easier said than done, yes, but the only way.

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

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Overcome Prejudice from a Bogus Restraining Order in Divorce

How can you win child custody during a divorce if your spouse puts a restraining order against you, based solely on verbal testimony and not pertaining to the children themselves?

1. The odds are against you, even if you are innocent. It doesn’t matter if you are innocent if the court believes the false allegations against you (and you’d be amazed how willing courts are to believe a good (even a bad) sob story, especially one coming from a woman against a man).

a. If the court believes the false allegations against you, despite the preponderance of evidence against those false allegations, you may have the option of filing an appeal, but most people don’t appeal because the odds are against you winning on appeal, and appeals are too costly and discouraging for most people.

2. The best way I know to get a wrongfully issued restraining order dismissed or reversed is to prove that it was wrongfully issued. And how do you do that?

a. By providing—as early in the process as possible—evidence to the court that:

i. that you have an alibi;

ii. your spouse is lying;

iii. that your history and good character simply make your spouse’s claims unbelievable.

b. by getting a lawyer (and cooperating fully with that lawyer) who knows the legal system and how to work it (ethically) to your advantage.

c. You will surely be tempted to fight fire with fire and resort to lying and cheating to be vindicated. Don’t. Two wrongs don’t make a right, and if that’s not reason enough for you, lying and cheating in your defense usually backfire. If you have children, getting down into the muck will do them irreparable damage.

3. The next best way to get rid of a restraining order: be penitent (even if you’re not guilty). This is a hard pill to swallow (as well it should be), but it may be your only viable option, if you value getting rid of the protective order over your pride. Don’t get me wrong: it’s unfair for innocent people to have to grovel and suffer the indignity, and many may interpret your groveling as an “admission” of guilt, but it may be the only way out. So what might this entail?:

a. jump—cheerfully and timely—through all the hoops the court sets in your path toward getting the restraining order lifted;

b. go to counseling or therapy and complete courses and read books (and report on reading them) that teach “parenting skills” and “anger management” and “conflict resolution”;

c. go to church. You should do this anyway. A good church does wonders for cheering you up and encouraging you and showing you how to be a better person (no matter how great you may be already), but if the only reason you go is to show the court that you’re a “changed man/woman,” so be it.

4. Even in the face of this injustice, count your many, many other blessings. Don’t let evil win by losing hope. Keep the faith. If you are going through hell, keep going. Lean on your friends and loved ones for support.

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

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