Saturday, 21 July 2018

Legal Separation FAQs

Each relationship has its rough focuses, yet in the event that you encounter a larger number of downs than ups, it may be an ideal opportunity to converse with your spouse about what steps you should take straightaway. In case you’re thinking about divorce, you’re not the only one. About half of marriages end with one spouse documenting an appeal (ask for) for disintegration of marriage (divorce.) We’ve previously talked about Divorce vs. Legal Separation in Utah here.

Legal Separation FAQs

Even when parties experience communication issues in a relationship, most couples can still work together to negotiate the terms of their divorce. You should speak to your spouse about how to divide your marital property, develop a parenting plan for your minor children, and review financial support. The court will resolve any lingering disputes, and once it does, the judge will issue a final judgment of divorce, terminate your marriage, and declare each spouse an unmarried individual.

Legal separation is a divorce alternative that resolves the same legal issues, but in the end, you’re still legally married to your spouse. In most states, divorce is permanent, but legal separation can be temporary, which gives married couples the added benefit of the possibility for reconciliation later.

If Divorce and Legal Separation are Similar, Why Choose a Legal Separation?

There’s no brilliant line manage for when it’s best to seek after divorce or division. Connections are close to home, and just the couple knows whether there’s a shot for compromise later on. On the off chance that there is still seek after your marriage, yet you require time separated, lawful detachment makes it less demanding to continue wedded life later.

For religious or spiritual couples, divorce might not be an option if you want to continue in your faith. If that’s the case, legal separation will allow both spouses the freedom to live a life apart from each other, but both can continue following the practices of the church.

Other typical examples of why couples choose legal separation instead of divorce include:

  • to preserve health insurance for a spouse (it’s critical to confirm this with the health insurance company first)
  • to protect valuable federal or military benefits, and
  • to ease the family into a dry-run for divorce.

It’s a myth that couples must file for legal separation before divorce. In fact, the legal processes are nearly identical, so if you pursue legal separation but want a divorce later, you may wind up paying legal fees and expenses twice.

Can We Live Apart and Separate Without Filing Anything?

Yes. The law doesn’t expect spouses to live in a similar house or act like a wedded couple. On the off chance that you and your spouse might want some time far from each other, you can take an interest in a preliminary partition, which is the place you live in particular homes, however you don’t approach the court for mediation.

Most couples can agree on the terms of a trial separation, like how long it should last, who should reside in the marital home, and a schedule for visiting with the children. Trial separations often give married couples the time they need to pursue therapy—or if reconciliation isn’t possible—to prepare the family for divorce (or formal separation.) It’s important to note that because the court isn’t involved in trial separations, you have more flexibility with the terms of your agreement. That said, if either spouse decides to stop the trial separation, the only recourse for the other is to file a formal motion for legal separation or divorce.

Does Utah Allow Legal Separation?

Yes, but in Utah, it’s called a “judicial separation. Residents in Utah may file for a judicial separation by demonstrating that they meet the state’s divorce requirements. You’ll need to meet Utah’s residency requirement, meaning at least one spouse has lived in the state for a minimum of 60 days before filing. If you haven’t lived in the state for 60 days, but your wedding took place in Utah, you can file for a legal separation if you can prove that you have lived in the state since the day your wedding took place.

Every spouse must be prepared to provide the court with a legal reason—or, grounds—for the request for a legal separation. Utah is a no-fault divorce state, which means that neither spouse needs to point fingers or place blame for the failure of the relationship. In fact, the court is satisfied when the filing spouse declares that the marriage has suffered irreconcilable differences, or if either spouse is incurably insane and living in a mental institution for at least 2 years.

Utah requires a mandatory waiting period of 20 days from the time you file to when the judge can finalize your case. Couples should use this time to negotiate the terms of the separation, including whether it will have an expiration date. Like divorce, the judge will resolve any lingering disputes between the spouses before granting the separation. If you need immediate court orders, a judge can issue temporary orders as soon as you file.

Do We Have to Put Our Separation Agreement in Writing?

Yes, every legitimate partition ought to have a detachment agreement marked by the two spouses and the judge. Your request should resolve an indistinguishable issues from however it were a divorce. For instance, your contract should dictate who will be the custodial parent and primary caretaker for any minor children and include a detailed visitation schedule for the non-custodial parent. Your order should also address who should pay child support, each spouse’s rights and responsibilities regarding marital property and debt, and which spouse may continue living in (and paying for) the marital home.

The separation agreement does not terminate your marriage like a judgment of divorce, but it offers each spouse protection with a court order on the most crucial issues.

Free Consultation with a Legal Separation Lawyer in Utah

If you have a question about divorce or a legal separation or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Basics of Adoption and Same-Sex Couples

Gay men and lesbians have always adopted, although their sexual orientation may not always have been in the open. Today, openly gay and lesbian men and women are being considered more seriously as potential adoptive parents. This change has been aided by the increase in the number of gay and lesbian biological parents in the United States. Below you will find key information about adoption and same-sex couples.

Basics of Adoption and Same-Sex Couples

Same Sex Parents Statistics

As of this last decade, an estimated 6 to 14 million children have a gay or lesbian parent. And, between 8 and 10 million children are being raised in gay and lesbian households. According to the most recent data from the the U.S. Department of Health and Human Services, Adoption and Foster Care Analysis Reporting System (AFCARS), it is estimated that there are 500,000 children in foster care nationally, and 100,000 need to be adopted, according to the ACLU.

In 2015, it is also estimated that approximately 3.8 percent of the U.S. population identifies openly as gay, lesbian, bisexual, or transgendered, according to a Gallup poll.

Same Sex Adoption in the U.S.

As of 2016, same sex adoption became legal in all 50 states. Mississippi was the lone holdout until a federal judge struck down the law as unconstitutional, citing the Supreme Court’s decision legalizing same-sex marriage nationwide. Despite these gains in equality in the adoption system, some states still have restrictions on fostering children, however, and other roadblocks for same-sex couples remain. If you are considering same sex adoption or foster care, it is wise to speak with an attorney in your state to learn the current laws and regulations in your jurisdiction.

Challenges to Adoption

Despite this increase in gay and lesbian parenting, social workers may have reservations when considering gay adoptive parents for a child. They might wonder how the children will be raised, and how they will feel about themselves and their parents. Will they be embarrassed because they have two mothers or two fathers, or because their single mother dates women or their unmarried father has a boyfriend? Will their friends tease them? And most important, how will having been raised by gay or lesbian parents affect them as they grow into adulthood?

Research on Gay and Lesbian Parenting

Defining the family structure of gay and lesbian parents can be a challenging task. The most common type of homosexual household is step or blended families. These are gay and lesbian parents who had their biological children in a former heterosexual relationship, then “came out”, and created a new family with another partner. Other types of family structures include single gay or lesbian parents and couples having children together. Both of these family types may be created through adoption, but more frequently reproductive technology is being utilized.

There has been some research on biological families with gay and lesbian parents. This research focuses mainly on children born to donor-inseminated lesbians or those raised by a parent, once married, who is now living a gay lifestyle. While research on these situations has not addressed all the issues relevant to adoptive parenting, this information is invaluable for social workers struggling with difficult decisions, for gay men and lesbians who want to be parents, for their families and friends, and for anyone seeking information on this nontraditional type of family. Studies consistently show that children living within same-sex parent households fare just as well as those children residing within different-sex parent households over a wide array of well-being measures.

Research Studies

Research studies are becoming more prevalent as LGBT persons become more visible. While in the past studies were often conducted by individuals or organizations with a vested interest in the outcome and were contradictory, studies are now moving towards greater objectivity, including definitive studies that follow larger numbers of children over a long period of time. That research, when completed, will provide more definitive information for the debate.

Free Consultation with Adoption Lawyer in Utah

If you have a question about an adoption or if you need an adoption attorney to help you, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Friday, 20 July 2018

What is the Best Interests of the Child?

The general, overarching standard in all states for child custody is to come to a resolution that is in the “best interest of the child.” But this standard might seem rather subjective. Exactly what is meant by “best interest?”

What is the Best Interests of the Child

The following are a few factors that go into these decisions:

  • The child’s age: There are many judges who believe younger children are better off living with their mothers, especially if the mother has already served as the primary caregiver or is currently breastfeeding.
  • Parents’ living situations: Judges aim to place children in homes that are going to provide positive living environments. Parents should have living situations that are stable and allow for continuity in the children’s lives (for example, allowing them to stay in the same school).
  • Cooperation with spouse: Judges want to see that a parent is willing to cooperate with the other parent and support his or her relationship with the kids. Cooperative parents are more likely to receive a positive resolution in a custody dispute.
  • Risk factors: If there is any risk of abuse or neglect by either parent, or if one parent has proven to be incapable due to factors such as alcoholism, drug abuse or irresponsibility, the judge is unlikely to grant that person custody.
  • The child’s preferences: In some circumstances, judges may weigh a child’s preferences into their decision. Other courts completely disapprove of bringing children’s views into the equation. Even if a judge does allow children to provide their opinion, however, it will merely be one small aspect of the decision.

How Does Religion Factor into Custody Arrangements?

In some circumstances, courts may look at the way children are impacted by religion in determining which parent will get child custody in a divorce. It is one of five decisions made by married parents that must be made jointly, alongside decisions of residence, health care, recreation and education.

As courts analyze how religion impacts the children after divorce, they will first determine the “status quo” heading into the divorce, or the kind of religion the parents practiced before splitting. That religion is determined to be the child’s religion, and neither parent can change it on behalf of the child unless they both agree or they get permission from the court.

If there is no status quo religion in place, neither parent is allowed to make the decision to affiliate their child with a specific religious denomination without getting permission from the other. If a parent decides to change their religion after the divorce, it is fine for the parent to practice that religion as he or she sees fit. However, they are not allowed to force their children to go through the change of religion as well. They can openly share their beliefs with their children and explain their new faith to them, but they are prohibited from formally changing their child’s religion or forcing them to go through religious education in their new faith.

If your ex is being difficult in regard to religion after a divorce, you can work with the courts to stop them from attempting to illegally convert your children.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Basics of Child Custody

Basics of Child Custody

Few divorce decisions are as emotionally fraught as those involving custody of minor children. Divorcing spouses who agree on other issues can quickly reach an impasse where children are involved.

Too often, protracted custody battles are thinly disguised attempts to manipulate support obligations , deny equal parental rights, or alienate a child from a non-custodial parent.

While you and your spouse can make custody agreements and visitation arrangements on your own, litigated custody disputes turn those decisions over to a judge who does not know your family. As one of the best family law firm in Utah, our practice daily handles tough custody cases for clients from all walks of life. These parents retain us to fight for the best interests of their children—and for their future. You should make sure you get a child custody lawyer to help you whenever you have an issue like this come up.

Two questions to be addressed concern legal and physical custody, defined as follows:

  • Legal custody is the right to make or be involved in major decisions concerning your child on matters of health, education, and welfare
  • Physical custody is the right for a child to reside with you and receive your physical care

Along with recommendations from the law guardian for your child, a judge will review best interest factors to make a physical custody decision that may look like one of the following:

  • Sole custody with one custodial parent, and one parent receiving visitation rights
  • Joint physical custody where a child resides with both parents—not necessarily for equal periods of time

Childhood is brief, but its scars can last a lifetime. If you have custody issues, retain a skilled attorney and fight for your child while you can still make a difference.

How Does Remarriage Affect Older Children?

Many people expect there to be some growing pains when getting remarried with minor children in the picture. However, many of these same transitional and emotional issues can also be a factor if you or your spouse have any older children.

While older children are going to be better able to emotionally process the transition, they are still human and still could very well have complicated feelings about the marriage. You should be prepared to notice and address any of the following issues:

  • Strong loyalty to their “original” family: Your adult children will want to maintain a strong family identity. This means it can be difficult to immediately accept a new stepparent and everything that comes with it, including uprooting long-established family traditions, celebrations and holidays.
  • Feelings of homesickness: While your adult children no longer live at home with you, there is still something that might be lost to them in the transition, beyond your relationship. To them, going home might no longer feel like they’re actually at home, and that can be difficult to process at first. They will miss the feelings of the home they knew as children, with both of their parents living in it together.
  • Difficulty managing time with grandchildren: You might find that your children harbor some feelings of resentment that their children, your grandchildren, will suddenly have to welcome a new face into their life, or that time has to be split even more broadly among grandparents.
  • Jealousy: Even adult children are susceptible to feeling jealous, or as though they’ve been “replaced” by a new spouse. Suddenly a new stepparent comes in and has captured your heart and energy — it’s natural for them to feel jealous.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Thursday, 19 July 2018

Joint Wills

As a probate lawyer, I often get asked questions about wills and trusts. Usually, you and your spouse will want to make a will together to leave the entire estate to each other and eventually to your children. While it is not the only way, a joint will allows one spouse to inherit the entire estate upon the death of the other spouse. However, you will need to carefully balance many factors to determine if creating a joint will is the best option for you. Read on to learn about joint wills, their legal effects, and potential problems and issues.

Joint Wills

What Are Joint Wills?

A joint will is a type of will that is jointly executed by two or more persons, usually a married couple, which combines the parties’ last will and testament. Under a joint will, the surviving party inherits the entire estate when the other party passes away. Between a married couple, the entire estate will usually go to the spouses’ children upon the death of the second spouse. Keep in mind that joint wills are different than joint and mutual wills, which contain reciprocal provisions that make the property distributions dependent on the other.

Legal Effects of Joint Wills

A joint will is a legal contract that cannot be changed or revoked by one party alone. The parties may revoke the will during their lifetime through mutual consent. However, once one of the parties passes away, the joint will cannot be revoked. Even if the surviving spouse remarries after the death of the other spouse, the terms of the joint will remain unchanged and the surviving spouse must comply with them. At Ascent Law, we really believe that having a will or joint wills if you are married is a vital part of estate planning and it should not be ignored or put off for another day.

Problems of Joint Wills

Joint wills are rarely used today because of potential problems and lack of advantages. Back in the day, joint wills were preferred over other types of wills because they saved time and additional labor. However, now that wills can be easily created on a computer, there’s no clear advantage to joint wills in most cases.

One of the biggest potential problems is that the surviving spouse is unable to change the terms of the will, regardless of the changed circumstances after the death of his or her spouse. For example, when the surviving spouse remarries another person and wants to leave some of the assets to his or her stepchild, the joint will prevents the surviving spouse to leave any part of the estate to that stepchild.

Another problem may arise if the surviving spouse wants to disinherit the child. Even if the spouses’ child abandons the family and stays disconnected with the surviving spouse, the surviving spouse still cannot disinherit the child without an approval of the deceased spouse.

Moreover, the surviving spouse may be tied up with the terms of the joint will for a long time. Say that the spouses got married when they were young and one of the spouses dies soon after their marriage. Now, the surviving spouse can be tied up with the terms of their joint will for decades.

Good Alternative to a Joint Will

A joint will isn’t the only way to transfer the estate to another person. If a married couple wants to make sure their children inherit everything after their deaths, the couple can set up a trust that contains the provisions of their wishes and restrictions. By setting up a trust, you are able to control who will manage the property for the benefit of your children, modify any terms of the trust, or entirely revoke the trust during your lifetime.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Does a 14 Year-Old Child’s Opinion Matter in a Custody Battle?

The Supreme Court, District Courts as well as the Family Courts in the State of Utah give some deference and weight to the opinion of children.  This is an important part of child custody in Utah. This doesn’t guarantee that a 14 year old will get what he or she wants. As the children age, their opinion is given more weight. Most often any child over the age of 5 is given an attorney by the Court (Attorney for the Child “AFC”). That person will be telling the Judge and anyone who will listen the wishes of the child. If the child is over the age of 14, those wishes will most likely carry great weight in any custody battle.

The result is as follows: children are driving the bus. Children playing one parent against another. Children are empowered to make decisions that, most likely should have been left to adults. Nevertheless, two adults cannot make a decision as to which of them is a better parent or custodial parent, the child will most likely make that decision for them If the child is over the age of 14. Our firm handles almost 1,000 cases a year and only handles divorce and Family Law cases. We know how to support the child’s wishes and we have also successfully won cases by challenging both the child’s preference and the arguments of the AFC or Forensic.

When Pet Custody is an Issue

Many couples and families own beloved pets. The ties that bind humans to animals sometimes outlast those of human relationships. When that happens, sparks fly when one spouse decides Fido is leaving with him or her.

In a recent survey, the American Association of Matrimonial Lawyers (AAML), reported more than a quarter of its members noted an uptick in divorce actions involving pets. The survey revealed trends that include:

  • Top dogs: With 88 percent of disputes devoted to canine companions, dogs take the top spot in disputed pets, followed by cats, horses and, in one case, a 130-pound turtle.
  • Under consideration: Approximately 22 percent of respondents reported courts are increasingly allowing pet custody cases.
  • Heart to heart: Using pet ownership as a legal strategy during divorce heightens conflict and can extend the acrimony and expense of divorce.

Thoughts to consider when the ownership of your pet is pending during divorce include:

  • Is the animal a family pet?  Where can the children best enjoy the animal?
  • Can you share ownership of the animal?  If you share ownership, how are animal expenses to be paid?  Make decisions at the outset about significant medical expenses the animal may incur.
  • What type of ownership is really best for the animal?

In Utah, animal companions are considered property of the marital estate. While a decision in the best interests of the animal makes sense, it is not the legal standard at play when pet ownership is disputed.

Mother Fails to Provide Evidence of Enhancement in Relocation Case

A recent bid before the Appellate Division, Second District failed when a mother was unable to provide important information to support her desired relocation after a divorce.

In Christy v. Christy, appellant Lisa Christy sought relief from a family court decision that prohibited her from carrying out a proposed relocation with the children of her previous marriage.

In Utah, the court maintains authority over the residential location of minor children. Even if two parents agree on relocation, the action must be approved by the court. When relocation is contested, the court must decide the issue in the best interest of the children involved.

In this case, Ms. Christy and her former husband, Brian Christy, have three children. Since the entry of their Judgment of Divorce in June 2012, Ms. Christy has remarried and currently lives with her second husband and his three children. The children of Mr. Christy visit him three weekends per month.

Ms. Christy, an unemployed teacher, sought to relocate to Arizona to pursue a job offer. The job offer to Ms. Christy requires her to recertify as an educator in Arizona. The second husband of Ms. Christy is currently employed in Utah and does not have a job offer in Arizona.

In the earlier family court action, Mr. Christy succeeded in his argument to dismiss the petition of Ms. Christy to relocate. The appellate court agreed with him in January of this year for the following reasons:

  • No evidence of a potential salary was offered by Ms. Christy.
  • No evidence was offered concerning the wishes of the children.
  • No evidence was offered to indicate the lives of the children would be economically or emotionally enhanced in Arizona.
  • The relationship between the noncustodial parent and the children would be affected.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Wednesday, 18 July 2018

Probate Without a Will

When someone dies without a will, those left behind must figure out how to transfer or distribute the deceased person’s property. This often requires going to probate court. Despite the negative publicity probate receives for being complicated and expensive, there are benefits to going through probate without a will.

Probate Without a Will

First, let’s review some probate basics. When you die without a will, this is known as dying intestate. Each state has established guidelines on how property and other assets will be distributed when a person dies intestate. These guidelines are known as state “intestate succession” laws. These laws control how your estate in handled in probate court. Read on to learn more about how probate without a will works.

Benefits of Probate When There’s No Will

Look around your home or apartment, then imagine what would happen if you were suddenly gone. You died and didn’t leave a will. Who would clean your house and where would your belongings go? And what if your heirs started fighting over who kept your dog?

Probate court provides a final decision to many unanswered legal questions that arise when you die without a will. So here’s why you may want to go to probate without a will:

  • Cuts Off Creditor Claims

    : After someone close to your dies, the last thing you want is call from debt collectors. Depending on the laws of your state, beginning probate can reduce the time creditors can file claims to as few as three months.

  • Resolves Conflicting Claims to Property

    : Inheriting property doesn’t always bring out the best in people. Probate doesn’t guarantee heirs won’t litigate disputes over property. But intestate succession laws applied by the court to distribute property can give closure to some disputes. Generally, your heirs include your surviving spouse, siblings, aunts and uncles, nieces, nephews, and distant relatives. The order of who takes first in intestacy is governed by state law. When no relatives can be found, the entire estate goes to the state.

  • Transfers Title

    : Unless real property is held in a trust or some form of joint ownership, it typically needs to go through probate to transfer the name on the title.

What’s the Role of the Probate Court?

State courts typically contain a designated probate division, commonly called probate court. Its primary job is to oversee the process that lawfully resolves all debts, taxes and financial affairs of people who die. Probate court also ensures the remaining assets go to the proper people.

Probate court selects the estate administrator when you die without a will. Generally the surviving spouse is appointed. If there is not a spouse, or they decline, the court will appoint the next nearest relative. Some states have residency requirements for administrators, which can create serious issues for families that are spread across the country.

Starting Probate Without a Will

When a person dies, someone needs to do the work of closing out their estate. If you want to start probate without a will by serving as the administrator, you typically start by filing a petition in probate court. Here’s a step-by-step look at how to get the process going.

  • Step 1: Review the deceased person’s assets to see if the estate qualifies for a small estate probate exemption. You will need to establish a value to the estate and produce an itemized list of all property needing distribution.
  • Step 2: Determine in which county you’ll file probate proceeding. Generally, it’s the county in the state where the person lived. If they own a home, it may be the county where the home is located.
  • Step 3: Bring a certified copy of the death certificate to the courthouse and request forms to Petition for Letters of Administration. By filing this document, you’re asking the court to act as personal representative of the estate.
  • Step 4: Complete and file the form requesting administration. You should be prepared to provide the names and address’ of all living relatives.
  • Step 5: You’re required to let everyone know you’re petitioning for probate. You’ll need to publish in local newspaper or other forms designed to inform people that a Notice of Petition to Administer Estate. Family members will need notice sent to their homes. This serves as a Notice to all creditors to file their claims against the estate. Creditors usually have four months to file their claims.
  • Step 6: Your petition is granted unless another more suitable representative comes forward.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506