A patent is a right granted to an inventor by the federal government that permits the inventor to exclude others from making, selling or using the invention for a period of time. The patent system is designed to encourage inventions that are unique and useful to society. Congress was given the power to grant patents in the Constitution, and federal statutes and rules govern patents. The U.S. Patent and Trademark Office (USPTO) grants patents for inventions that meet statutory criteria. The following provides a general overview of what a patent is. Patent CategoriesThere are three different kinds of patents: utility patents, design patents and plant patents. 1. Utility Patents: The most common type of patent, these are granted to new machines, chemicals, and processes. 2. Design Patents: Granted to protect the unique appearance or design of manufactured objects, such as the surface ornamentation or overall design of the object. 3. Plant Patents: Granted for the invention and asexual reproduction of new and distinct plant varieties, including hybrids (asexual reproduction means the plant is reproduced by means other than from seeds, such as by grafting or rooting of cuttings). For an invention to qualify for a patent, it must be both “novel” and “non-obvious.” An invention is novel if it is different from other similar inventions in one or more of its parts. It also must not have been publicly used, sold, or patented by another inventor within a year of the date the patent application was filed. This rule reflects the public policy favoring quick disclosure of technological progress. An invention is non-obvious if someone who is skilled in the field of the invention would consider the invention an unexpected or surprising development. Naturally occurring substances and laws of nature, even if they are newly discovered, cannot be patented. Abstract principles, fundamental truths, calculation methods, and mathematical formulas also are not patentable. A process that uses such a formula or method can be patented, however. For example, a patent has been granted for an industrial process for molding rubber articles that depends upon a mathematical equation and involves the use of a computer program. A patent cannot be obtained for a mere idea or suggestion. The inventor must have figured out the concrete means of implementing his or her ideas in order to get a patent. A patent also will not be granted for an invention with no legal purpose or for an unsafe drug. UsefulnessAn inventor applying for a utility patent must prove that the invention is useful. The invention must have some beneficial use and must be operable. A machine that will not operate to perform its intended purpose would not be called useful, and therefore would not be granted a patent. A useful invention may qualify for a utility patent only if it falls into one of five categories: a process, a machine, a manufacture, a composition of matter, or an improvement of one of these. A process is a method of treating material to produce a specific physical change in the character or quality of the material, generally an industrial or technical process. A machine is a device that uses energy to get work done. The term manufacture refers to a process in which an article is made by the art or industry of people. A composition of matter may include a mixture of ingredients or a new chemical compound. An improvement is any addition to or alteration of a known process, machine, manufacture, or composition. What is Patentable?These categories include practically everything made by humans and the processes for making the products. Examples of things that are patentable include: • Computer software and hardware; • Chemical formulas and processes; • Genetically engineered bacteria, plants, and animals; • Drugs; • Medical devices; • Furniture design; • Jewelry; • Fabrics and fabric design; and • Musical instruments. Patent ProtectionUnlike a copyright, a patent does not arise automatically; an inventor must apply for a patent. The inventor must apply within one year of publicly disclosing the invention, such as by publishing a description of the invention or offering it for sale. An inventor, or his or her attorney, generally makes a preliminary patent search before applying for a patent to determine if it is feasible to proceed with the application. The application and a fee are submitted to the U.S. Patent and Trademark Office, where it is reviewed by a patent examiner. If a patent is granted, the inventor must pay another fee, and the government publishes a description of the invention and its use. Only a patent attorney or patent agent may prosecute patents before the PTO. Before a person may be licensed as a patent attorney or patent agent, she must have a degree in certain technical or scientific fields. InfringementIf an inventor thinks someone has used his or her patented invention without permission, he or she may bring a lawsuit against the infringer. If the court agrees, it may award the patent holder costs, attorney’s fees, damages in an amount equal to a reasonable royalty, and an injunction (an order prohibiting another person from infringing the patent). An action for infringement can be time-consuming and costly, so infringement cases often are settled. Intellectual Property Lawyer Free ConsultationWhen you need legal help with a patent, intellectual property, copyright, trademark other other matter, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C itemprop=”addressLocality”>West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Probate Lawyer West Jordan Utah via Michael Anderson https://www.ascentlawfirm.com/what-is-a-patent/
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If you have been charged with a criminal offense, contact an experienced Draper Utah criminal defense lawyer. Every criminal offense requires both a criminal act (often still referred to by the Latin phrase actus reus) and an accompanying state of mind (mens rea). The requirement of a criminal act is easily understood and is contested in only a few cases, but it reflects interestingly on the purposes of criminal law. The act element of the requirement refers to a voluntary action of the defendant, and the criminality element refers to the harm that ensues from the act. An act is simply a movement of a part of the body. The criminal’s finger pulls the trigger on the gun or her hand takes a wallet out of the victim’s pocket. At this point we are not concerned with the consequences of the act–the death of the victim or the value of the wallet–but only with the defendant’s physical act itself. It’s enough that there be an act and that the defendant voluntarily performed it. The element of voluntariness is essential. Suppose Tony Stark is quietly peeling an apple when he suddenly has an epileptic seizure. During the seizure, an involuntary muscle contraction causes his hand, which is holding the knife he was using, to jerk out, slashing the throat of Louis Lane, who was sitting next to him. Or suppose one night Tony gets out of bed and, in an unconscious, sleepwalking state, picks up a knife and slashes his wife to death. Has Tony committed a criminal act in either case? The law says no, because Tony’s conscious mind has not directed a voluntary act. Sometimes it is argued that we can’t deter involuntary acts, so there is no point in punishing them; the threat of a criminal sanction cannot prevent the epileptic from having a seizure. But that’s not exactly right. We can’t prevent the somnambulist from sleepwalking, but we can provide a disincentive for him to be in potentially dangerous situations when he might do so; perhaps the threat of criminal punishment will encourage sleepwalkers to keep their bedroom doors locked and keep sharp objects out of reach, or even to seek treatment for the affliction. An even more important reason to require a voluntary act is retributivist. Criminal punishments are exacted because the criminal has done something wrong in a moral sense. Only where the criminal has chosen to commit harm–that is, has acted voluntarily–is it just to punish him. Voluntariness as an issue arises in a few cases more common than sleepwalking. Many statutes punish simple possession, of drugs or of burglary tools, for example. Even if the statute doesn’t say so expressly, this means voluntarily coming into possession or maintaining possession. If someone slips a packet of heroin into your pocket and the police immediately thereafter find it, you are not guilty of possession of an illegal drug because you did not possess it voluntarily. It is useful for the government to be able to prosecute people for possession, though, because it is usually easier to prove possession than use, purchase, or sale. If you have the drugs and it is reasonable to infer that you either acquired them voluntarily or knew you had them for a sufficient period of time in which you had a chance to get rid of them, it is reasonable to infer that you voluntarily kept the drugs and to punish you for having them. The voluntariness requirement can also be met if the criminal voluntarily performed some but not all of the steps necessary to complete the offense. Suppose a deeply fatigued truck driver continues to drive at the end of a very long day, falls asleep at the wheel, and runs over a pedestrian. Has the driver committed a criminal homicide? Running over the pedestrian was not a voluntary act, but continuing to drive while tired was, so the act requirement has been satisfied. The issue then becomes the degree of homicide. The driver might argue that she should only be liable for negligent homicide (manslaughter) because she didn’t intend to hit the pedestrian, even though she may have been reckless in driving in the first place. The common rationale of excuse defenses— to exculpate the blameless— gives rise to common requirements: a disability or reasonable mistake must cause an excusing condition. The disability and mistake excuses generate the same conclusion of blamelessness in different ways. In disability excuses, the disabling abnormality, such as involuntary intoxication, sets the person apart from the general population. The mistake excuses seem to do the opposite: they argue that the person should not be punished because in fact he or she has made a mistake that anyone else would have made in the same situation. That is, the person’s mistake was reasonable; any reasonable person would have made the same mistake. Mistake ExcusesSeveral types of mistakes are commonly allowed as grounds for a general excuse defense (as distinguished from mistakes that provide an absent-element defense by negating an element of the offense). Reliance on an official misstatement of law and mistake due to the unavailability of a law are two such general mistake excuses. A mistake about whether one’s conduct is justified also is commonly recognized as an excuse. (A fourth commonly recognized mistake excuse is reliance on unlawful military orders, essentially a special subclass of a mistake about a justification excuse, where the justification is the public authority of lawful military orders.) Mistake with Regard to JustificationEvery jurisdiction recognizes a defense for some form of mistake with regard to a justification. The often unpredictable and confrontational nature of justifying circumstances makes such mistakes particularly understandable. This is especially true for defensive force justifications, where the person must make the decision to act under an impending threat of harm. Most jurisdictions provide the mistake defense by including the word believes or the phrase reasonably believes in the definition of the justification defense (or by giving a defense if the person acts with a proper justifying “purpose”). This means that a person will get the defense if he or she believes that the conduct is justified, even if it is not. A popular alternative means of providing an excuse for mistake with regard to a justification— and one with some advantages— is to define justifications objectively, without the “believes” language, and to provide a separate general excuse defense for mistakes with regard to a justification. Disability ExcusesSimilarly, disability excuses share a common internal structure: a disability causes a recognized excusing condition. The disability is an abnormal condition of the person at the time of the offense, such as intoxication, subnormality, or immaturity. Each is a real-world condition with a variety of observable manifestations apart from the conduct constituting the offense. It may be a long-term or even permanent condition, such as subnormality, or a temporary state, such as intoxication, somnambulism, automatism, or hypnotism. Its cause may be internal or external, as in coercion from another person (duress). Involuntary IntoxicationThe involuntary intoxication excuse has a disability of intoxication and the excusing condition— a cognitive or a control dysfunction. DuressThe duress defense typically requires that the person committed the offense while under coercion to do so. The defense does not require, however, that the coercion cause in the person a “substantial lack of capacity to conform his conduct to the requirements of law” or another similar description of the degree of control impairment that the excusing conditions involuntary intoxication require. Instead, the duress defense requires that the person’s disability, which is in this case the state of coercion, come from a particular cause: a threat of force that “a person of reasonable firmness … would have been unable to resist.” The seriousness of the threat is to be assessed against the kind of threat that would coerce “a person of reasonable firmness in [the actor’s] situation”. Nonexculpatory DefensesNonexculpatory defenses, which give a defense even though the person’s conduct may be wrongful and the person blameworthy, include such defenses as statutes of time limitation; diplomatic immunity; judicial, legislative, and executive immunities; immunity after compelled testimony or pursuant to a plea agreement; and incompetency to stand trial. Each of these forms of immunity furthers an important societal interest. Overriding nonexculpatory public policy interests also serve as the basis for many constitutional defenses. The double-jeopardy clause of the Fifth Amendment, for example, may foreclose the trial of even a blameworthy and convictable offender by barring the state from making repeated attempts to convict him or her. Notions of procedural fairness are said to demand that the state not subject a person to the embarrassment, expense, and ordeal of trial more than once for the same offense, nor compel him or her to live in a continuing state of anxiety and insecurity. Dismissals based on the operation of the exclusionary rule or on prosecutorial misconduct also may be nonexculpatory in nature, especially if the dismissals are unrelated to the reliability of the evidence in the fact-finding process. The public policies served by nonexculpatory defenses may be as broad as protecting all members of society from unlawful searches, or they may narrowly focus on assuring fairness in the treatment of individual defendants. The nonexculpatory entrapment defense furthers societal interest in deterring police misconduct. Where a police officer or agent has had some hand in having a person commit an offense, the person may be entitled to an entrapment defense. The United States is one of the few countries that recognize such a defense, and within the United States, jurisdictions disagree over how the defense should be formulated. “Objective” formulations of the entrapment defense focus on the impropriety of the police conduct. The defense is available, even if the person was predisposed to commit the offense, if the police conduct is such that it “creates a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.” “Subjective” formulations of the entrapment defense focus on the degree to which the entrapping conduct, rather than the person’s own choice, is responsible for commission of the offense. Under this formulation, the defense is given “because the wrongdoing of the officer originates the idea of the crime and then induces the other person to commit the offense when the other person is not otherwise disposed to do so.” The objective formulation is clearly nonexculpatory: it uses the threat of acquittal of the defendant as a means of deterring improper police conduct. The blameworthiness of the defendant is not relevant. A subjective formulation, in contrast, might appear to be an excuse similar to duress that exculpates the defendant because he or she is coerced to commit an offense. However, the subjective formulation does not require that the inducement to commit the offense be one that a “person of reasonable firmness would have been unable to resist,” as the duress excuse does. Instead, it gives the defense even if we could well have expected the defendant to have resisted the temptation. The subjective formulation is a nonexculpatory defense like the objective formulation, but one that seeks to exclude career criminals from the defense in order to limit the costs it accrues in trying to deter overreaching on the part of police. If you or someone you know has been charged with a criminal offense, your first course of action should be to get in touch with an experienced Draper Utah criminal defense lawyer. The lawyer will fight to get justice for you. Draper Utah Criminal Defense Attorney Free ConsultationWhen you need to defend against criminal charges in Draper Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with White collar crimes, sex crimes, theft charges, assault, battery, manslaughter, DUI, drug crimes and more. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C itemprop=”addressLocality”>West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Do Salaried Employees Get Paid Prevailing Wage Rates? via Michael Anderson https://www.ascentlawfirm.com/criminal-defense-lawyer-draper-utah/ Commercial liability is a type of insurance policy that provides coverage to a business for bodily injury, personal injury and property damage caused by the business’ operations, products, or injury that occurs on the business’ premises. Commercial general liability is considered comprehensive business insurance, though it does not cover all risks a business may face. Understanding the risks your business faces and having the right CGL coverage to protect you from those risks is an important step in safeguarding your operations. What’s Required of a Business That Applies for General Liability Insurance? For instance, insurers might not cover a juggler who specializes in throwing five chainsaws in the air while ice skating. It’s true. Insurance companies won’t exactly be lining up to cover that guy. Do I need CGL insurance?Some small business owners don’t know they need liability insurance, or think it’s too expensive. The truth is, no matter how small your business is—it’s still at risk for various forms of liability. In fact, the smaller your business is the worse the implications of a liability claim can be. At the bare minimum, every business should have a standard CGL policy to protect them from risk and loss. Some of the consequences of operating without CGL insurance may include: 1. If you’re found legally liable for bodily injury or property damage to a third party, your company may have to pay the costs associated with the legal process and any financial losses that stem from the lawsuit. 2. Your reputation with your clients/ customers could be severely damaged. Consumers need to feel a sense of trust with companies and brands. A lawsuit could shatter that sense of trust if handled poorly. 3. There are a lot of scenarios where you may be asked to provide proof of insurance. If your business participates in events such as tradeshows or markets, the venue will often request that participants provide a certificate of liability coverage. If you’re a contractor or skilled tradesperson, some of your customers will require proof of insurance prior to allowing you to conduct work on their This type of insurance typically covers “the big three”: people, property, and personnel. These are the most common – and largest – areas of exposure for any business, and without the proper policy in place, you are opening yourself up to major financial losses if the worst should happen. People – If an incident occurs on your premises that involves a third party, whether they incur bodily harm or damage to their personal effects, commercial insurance will normally help defer the costs of any related repairs, replacements, or medical bills. Property – As a business owner, chances are you possess a fair bit of specialized gear, equipment, and/or technology. Not only does commercial insurance cover the unique belongings that keep your business running, but it can also protect a host of other supplies, furniture, and more. What Coverage Do I Need in My General Liability Insurance Policy?Good insurance companies make sure the insurance policy they write for you appropriately matches your business’s needs. General Liability Insurance policies are not “one size fits all.”; Each one should be customized. From the day an entrepreneur starts a business, he exposes himself to certain risks. Even before the first employee is hired, a business is at risk, making it important to have the right insurance in place. One lawsuit or catastrophic event could be enough to wipe out a small business before it even has a chance to get off the ground. Fortunately, businesses have access to a wide range of insurance types to protect them against these dangers. Here are some insurance types that a business must have in place as soon as possible. • Professional liability insurance. • Property insurance. • Workers’ compensation insurance. • Home-based businesses. • Product liability insurance. • Vehicle insurance. • Business interruption insurance. Utah Business InsuranceIn the state of Utah, agriculture dominates the business industry, as the state focuses on cattle, calves and hogs, dairy products, hay, and greenhouse and nursery products. General liability insurance in Utah is carefully planned to provide security and protection for small business owners from financial burdens that can occur from irresponsible acts, omissions, or both, caused by the employer or their employees that may result in physical injury or property damage. Contractual liabilities, liabilities from products sold, and accidents on the premises of the business are some of the more common types of exposures covered under general liability insurance. The injury or damage might be a result of negligence and accidental. General liability insurance for Utah businesses may be one policy or can be part of a package policy. A package policy is an exclusive type of insurance policy for an owner of a Utahan entity that includes two or more different types of insurance into a single insurance policy, referred to as a bundle, although a package policy can also be planned in order to include any type of coverage which depends on the unique requirements of the organization. A package policy is essential to a business professional as it provides them with an excellent amount of flexibility to tailor a policy for the specific needs of the risk exposures of the company. Commercial Property Insurance in Utah is a type of security coverage for different types of Utah-based commercial property, such as, essential documents, building, materials, equipment, furniture, inventory, and personal property. Commercial property insurance provides protection against different types of perils, including windstorm, hail, explosion, fire, natural disasters, theft, and lightning strikes. A variety of professional industries feel more protected with this sort of insurance, including retailers, not-for-profit entities, manufacturers, and businesses related to the service industry.Business Liability CostsLiability insurance costs in Utah can vary widely between insurance companies. Liability insurance rates are generally factored using a) the gross sales for the business, b) the gross payroll for employees and owners, c) the square footage of the premises and d) any sub-contractor exposures (if applicable). Insurance rates are developed at a rate per $1,000 utilizing one or more of the above factors. A typical small business in Utah can expect to pay anywhere between $300 and $5,000 annually for their general liability policy. The final cost of liability coverage from one business to the next will vary significantly based on the SIC code or the insurance company’s own classification system for GL rating. Some additional factors used to develop insurance costs include the nature of your business, your physical location, prior claims experience, and your years in business. There are many different types of policies to consider that offer coverage beyond the core needs of most businesses. Read on to learn a little more about the commercial insurance coverage that is available to you and your business. Third-Party InjuriesIf, for example, a client slips on a wet floor at your business and is injured, their medical expenses are your responsibility. (Yikes.) Depending on the severity of the injury, the business owner could be sued to pay for the client’s: • Physical therapy/rehabilitation costs • Lost wages while they’re out recovering These lawsuits get expensive quickly, which is why most business owners carry general liability insurance. This policy can pay for legal expenses related to third-party injuries. Employee InjuriesOccupational injuries and accidents are often both unpredictable and costly. When employees are hurt at work, small business owners need worker’s compensation insurance to cover employee medical expenses and partial lost wages. Many states require employers to purchase this policy as soon as they hire their first worker. However, even if it’s not required by law, it’s still a good idea for businesses to protect employees and business operations with this coverage. Otherwise, injured employees could sue to pay for their medical bills. Breach of ContractA business contract can cover a wide range of business operations. Like any contract, business contracts are enforceable by law so long as they contain all the elements of a valid contract (such as offer, acceptance, consideration, signing, etc.). Some business matters that are commonly the subject of a business contract may include: • Shipment and delivery of goods; • Sale, purchase, or transfer of a business; • Construction of business buildings; • Short-term joint business ventures; or • Long-term agreements (such as deals involving cyclical shipments over many years). If a business signs a contract with a client to provide services, and then doesn’t make good on that contract, they could be on the receiving end of a lawsuit. It could be sued for: • Failing to make payments for goods; • Failing to deliver goods after payment was received; • Delivering goods late; • Delivering goods in damaged condition; • Delivering the wrong goods; • Failing to surrender business property after the transfer of a business; or • Violating confidential or private business information (such as a trade secret). Although commercial liability insurance can cover lawsuits over professional errors, it might not cover breach of contract. Coverage varies from carrier to carrier. So, you’ll want to check with an insurance agent to confirm if a specific liability insurance policy can address this kind of lawsuit. Discrimination and Wrongful TerminationDiscrimination lawsuits can take many forms, but most often, they involve employees are who face discrimination on the basis of their: • Sex • Race • Religion • Color • National origin • Age • Disability • Pregnancy Federal laws prohibit these types of discrimination, so whether a worker was racially insulted or a supervisor behaves inappropriately toward an employee, these incidents are the business owner’s responsibility to mitigate and correct. Even if that happens, an employee can still sue for damages. These federal discrimination lawsuits can extend to job applicants, too. For example, if a 50-year-old woman isn’t hired for a job, she could file a lawsuit claiming she was discriminated against because of her age and sex. Commercial Property InsuranceRunning a successful business is not without its risks. Most business owners are proud of the work they do and the property they utilize to get the work done. Unfortunately, nature is not always so understanding. Every year, business owners have their business property damaged or lost as a result of events completely beyond their control. Commercial Property Insurance is for any business that has physical assets. Although your building or other business property may not be making money for your company, its loss could still be very costly. This insurance type is all about insuring your building, the physical assets inside of that property, and many other types of physical objects owned and used by your business. Whether that property is small office furniture or a large warehouse, any property your business owns should be protected. Litigation Attorney Free ConsultationWhen you need legal help for a business or commerical liability in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C itemprop=”addressLocality”>West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Real Estate Lawyer South Salt Lake Corporate Lawyer Park City Utah Bankruptcy Fraud Legal Defense via Michael Anderson https://www.ascentlawfirm.com/commercial-liability-lawsuits/ Seek the assistance of an experienced Provo Utah divorce lawyer if you have decided to divorce your spouse. Once you decide to divorce your spouse, “be prepared for a fight”. You shouldn’t be surprised if your spouse becomes angry about the divorce because dissolving a marriage can bring out the worst in people. Some pre-divorce financial planning can ensure that your interests, and those of your children, are well-protected. For starters, get copies of the statements of all of your joint financial obligations, including those accounts with brokerage houses, credit card companies and other debtors. Also, secure insurance policies, bank and loan statements, pension plan documents, mortgage payments, recent tax returns and estate planning information. Depending on how you believe your spouse will react, it may be best to keep your plans for divorce under wraps until you have all of the information you need to support your case. If you fear your spouse will try to take money from your accounts or hide important papers, you can ask a judge to intervene on your behalf. On the other hand, you don’t want to be antagonistic either. A divorce fight means that “both of you will be living your lives by your lawyers’ rules and that’s not a good thing. “Courts always give the children to mothers” is a belief expressed by many fathers. At one time, courts did show a preference for maternal custody. However, most, if not all, states including Utah now have gender-neutral custody laws in which mothers and fathers are equal before the law. The criterion now used by courts is “the best interest of the child” and custody is determined on a case-by-case basis. The primary caretaker criterion explains why mothers are still more likely to be granted custody than are fathers. Despite the prevalence of two working parents in the home, studies are continuing to find that mothers assume most of these parenting responsibilities, and fathers usually play a secondary role. Although primary caretaking was the most common factor stated in judicial custody decisions in the nineties, it is certainly not the only criterion courts use. The broader criterion, the best interest of the child, considers what a particular child needs at this time, given the totality of the current circumstances. The primary caretaker is usually only one consideration, albeit a very important one. Other considerations are likely to include a child’s individual needs, attachments, and emotional ties; parents’ emotional stability, parenting competence, and life style; parents’ willingness to share the child; parents’ ability to provide continuity with school and community; domestic violence and abuse issues; and substance abuse issues. In Utah the courts tend to consider the best interest of the child when deciding a custody application. The special context of divorce raises other interesting questions. Decisions to be made in the best interests of children are highly subjective in such situations and require complex reasoning skills to conceptualize, let alone resolve. In some custody cases, you may need the services of an expert mental health professional to provide expert testimony. Speak to your Provo Utah divorce lawyer to know more. A competent mental health professional will recognize the potential ethical problem of the parent who arrives for evaluation and during the sessions says, “Don’t tell my spouse, but . . .,” then proceeds to disclose some significant material point on which a decision might turn. In anticipation of such problems, some clinicians ask all parties to sign reciprocating waivers prior to the start of the evaluation. The waivers specify from the outset that both parents and their attorneys will have access to any information disclosed to the evaluator. A matter of great importance and great controversy for clinicians who function as evaluators in child custody disputes is whether they should address or testify to “the ultimate legal issue” in their work. That is to say, should the evaluator make an actual custody recommendation to the court or simply provide a listing of facts and opinions for the judge to consider? Child custody cases rarely involve questions of actual “parental fitness” in the sense that one or the other is grossly unfit to care for the child. Rather, the more usual issue is that of which parenting arrangement will serve the best interests of the developing child. In such instances, the term best interests is a moral or legal concept, as defined by state law, not a psychological concept. There is general agreement that mental health professionals in this role should conduct thorough and wide-ranging evaluations, point out strengths and weaknesses to the court, and help the court understand what is known or not known in the existing research or clinical literature. Evaluation in such cases can become quite complex. Cases may involve a request for consultative input by parents in an amicable divorce, state intervention in cases of abuse or neglect, termination of parents’ rights, contested adoptions, or charges and counter charges regarding alleged sexual abuse. It is critical that the clinician who agrees to take on the evaluation of such a case be knowledgeable regarding both legal and clinical aspects of these types of cases. In addition, it is important to be mindful of the appropriate role boundaries. In particular, one should take care not to slip from the role of evaluator to that of intervenor (i.e., therapist). What factors ought to be considered in making child custody decisions? Are race, religion, or parents’ sexual conduct valid factors to consider in making a custody decision? The fact is that such decisions vary widely both regionally and according to local preference. In some cases, psychological factors have been cited as bases for such decisions, and mental health professionals are likely to be called as expert witnesses in future cases on similar issues. In general, however, religion and parents’ sexual preferences have not been deemed proper bases for making such decisions. Utah has mandatory mediations requirements. Parties to a divorce proceeding in Utah must pay for and attend a mediation conducted by a court appointed mediator. Mediation is rapidly growing in popularity as an alternative to adversarial contests in divorce and child custody disputes. Divorce mediation was essentially the starting point for the mediation movement in the early 1970s. Divorce mediation confronts one of the most difficult conflicts that exist on earth, the breakdown and ending of the intimate, complex marriage relationship. Mediation is not really new. It is as old as the new testament and perhaps older. The Greek word for mediate means to stand between. People have always known that standing between two people in conflict can be helpful. What is new is that mediation has been rediscovered as a replacement for many of the present methods of addressing adversarial conflict. The mediation method encourages cooperating with and helping your adversary. This new way of thinking is gaining a foothold, not only in conflict resolution theory, but also in business. Traditional beliefs about how divorce should occur are also rapidly changing, giving rise to the increased use of divorce and family mediation. Fault (i.e., who caused the marital breakdown) is no longer a factor to consider in most states. In almost all states, there is an increase in the number of couples experimenting with equal time sharing of the children. The traditional divorce, which awarded custody to mothers and made dads visitors to their own children, is no longer the status quo. Instead, couples are sharing their parenting responsibilities equally after the divorce and competition for physical and legal custody has become less important. How each parent can get assistance and support from the other parent is more important than who will have custody. Because both parents usually work full time to survive financially, they realize that they need to cooperate to cover all the emotional, physical, and financial needs of their children. Never assume that because you are the non-custodial parent, the court will automatically grant you full custody rights. Even when there is joint physical custody, visitation is an important issue. The key to a continued parental relationship and to a separation that is less stressful for the children is advance planning. Emergency restraining or protective orders often deal with visitation in a general way, and what seems temporary often has a way of becoming permanent under law. Judges do not like to force children through too many changes in residence or lifestyle. Shared parenting or joint custody would be the most equitable solution for divorcing couples. Both parents should contribute to the emotional and financial welfare of the child. The court will generally adhere to any agreement the two parties reach, provided it won’t harm the child. Aside from custody and visitation issues, your arrangement should also stipulate which parent can claim the children as tax deductions. Once child custody issues are resolved, start planning for a brighter future. When you are fighting a divorce case, you need an expert to assist you with your legal battle. Don’t hire the first divorce lawyer you come across. Hire the best. Hire an experienced Provo Utah divorce lawyer. Diligence is an obligation of lawyers demanded by the general law. Divorce lawyers must both be skilful and must exercise the skill they have. The law reports contain many examples of lawyers being liable to clients for lack of competence, and there are also cases where they have been held to be liable to third parties where a client’s instructions have been negligently effected. Indeed, lack of competence might be raised collaterally as in the very exceptional cases where a conviction will be quashed because of the failure of the lawyer adequately to advise or act. Lawyers may be liable for wrongful advice, albeit that the questions are obscure and difficult. Clients must be advised of the legal consequences of any step which they propose to take, about the alternative remedies available, and that any particular step ought to be taken without delay. As with others providing services, lawyers must act with reasonable competence and skill. Diligence also arises in the general law in other ways. Lawyers must not misrepresent their competence. When handling moneys they must account and not make improper investments. Lawyers must not stray beyond the task their client has authorised; if a lawyer acts without authority he or she may not only be liable to the client but to third parties for breach of warranty of authority. It goes without saying that an experienced Provo Utah divorce lawyer has a sound knowledge of the law. An experienced Provo Utah divorce lawyer has a superior learning and knowledge of legal processes which clients cannot hope to acquire (without a substantial investment), even if they had the inclination. Lawyer control has an additional, functional justification, in suppressing antisocial behavior. To use a sociological term, lawyers are gate-keepers. They advise clients about how to behave lawfully, they screen out unjustified claims, they encourage the settlement of disputes, and they damp down abuses of the legal process. Provo Utah Divorce Lawyer Free ConsultationWhen you need legal help with a divorce in Provo Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with legal separation. Divorce. Contested Divorce. Divorce Mediation.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Is Utah A Community Property State? via Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-provo-utah/ Public work is all work, construction, alteration, repair or improvement that is executed at the cost of the state or any other local public agency. This includes, but is not limited to, demolition, remodeling, renovation, road construction, building construction, ferry construction and utilities construction. Prevailing Wage is defined as the hourly wage, usual benefits and overtime, paid in the largest city in each county, to the majority of workers, laborers, and mechanics. Prevailing wages are established, by the Department of Labor & Industries, for each trade and occupation employed in the performance of public work. They are established separately for each county, and are reflective of local wage conditions. Trades are generally surveyed every three years to determine the prevailing wage rates. • Contractors and unions are surveyed to determine the wages and benefits that are being paid for each job classification. This list is established using industrial insurance, Intent and Affidavit filing, and licensing data. • Prevailing wage rates are calculated for each job classification based on the survey data such as carpenters, electricians, laborers, etc. • Largest City in County – Majority Wage: If more than one-half of all hours reported in the largest city in a county are worked at one wage rate, then that majority wage rate becomes the prevailing wage for the whole county. • Largest City in County – Average Wage: If there is no majority wage rate, then a weighted average wage is computed using data from the largest city in a county. The weight attached to each wage is the total number of hours reported to be worked at that wage. • County Average: If no hours are reported in a county’s largest city, then a weighted average wage is computed using countywide data. They are determined by the Department of Labor. Let’s look at why prevailing wage rates are important and how they are calculated. The prevailing wage differs by occupation of course. The prevailing wage for surgeons in hospitals is much higher than it is for convenience store clerks. The prevailing wage also differs depending on where you live. It’s much higher some locations than it is in others. The minimum wage laws apply to all workers but some types of workers must be paid according to the prevailing wage as well in order to be in compliance with Department of Labor regulations. The list that follows shows which employers and jobs are affected: • Federal Contracts – Under the Utah Act, contractors bidding for federal contracts must pay the prevailing wage as provided by the DOL to the workers on that job. The idea is to create a level playing field for those bidding and not allow someone to put in a low ball bid by low balling the workers on pay. • Employers hiring skilled foreign workers under visa programs like the H1-B. These skilled immigrants are typically hired in STEM fields. Paying them the prevailing wage protects workers who could be replaced by the foreign workers if employers could pay them less. • Employers may pay a sub-minimum wage to disabled workers. They must first survey local employers to determine a prevailing wage and pay the disabled worker a percentage of it based on productivity. • State and local governments may also mandate a prevailing wage on their contracts. It’s important for an employer to get the requirements before bidding on these contracts. How the Prevailing Wage is calculatedFor Utah public works projects, all work over eight hours per day and or 40 hours per week is considered overtime. Hours over 8 in a day should be paid at 1.5 times the rate of regular hours. Double time is required and due for work beyond 12 hours in a workday or eight hours on the seventh day of a work week. For Prevailing Wage jobs or Public Work projects employers must pay the prevailing wage overtime rate as specified by the Department of Industrial Relations (DIR) in the appropriate prevailing wage determination for each job classification. In some cases, work in excess of seven hours is considered overtime. Employers are responsible for understanding and paying the appropriate rate at all times. Prevailing wage law requires that workers be paid overtime rates on weekends, regardless of the total hours worked for the week. These rates vary by classification and can be found in the DIR wage determinations. Often the DIR specifies that Saturdays are 1.5 times regular pay (time and a half) and Sunday hours are double time regardless of other time worked during the week. Workers also may be entitled to overtime pay on recognized legal holidays. Not all holidays are recognized by all crafts. For a complete list of holidays recognized by the DIR check their web site. When there are multiple shifts or odd working hours, employers may be required to pay shift differentials. The rules are based on the craft. Generally, shift work is paid a higher rate and overtime begins after 7 or 7.5 hours. Sometimes workers perform multiple duties that may be in different classifications. For example, a worker may perform six hours of work in the Insider Wireman’s classification and then two hours of work as a painter. The worker must be paid six hours at the Inside Wireman rate and two hours as a painter. If the same worker puts in ten hours in one day, with five in the Insider Wireman’s classification and then five as a painter, the worker is due overtime pay. This pay must be calculated based on the rate for five hours of work as an Inside Wireman plus three hours at the standard painter rate and two hours at the painter overtime rate. Employers are required to pay overtime according to the prevailing wage determinations. Failure to comply can result in penalties, damages, accrued interest, legal fees and court costs. Having a prevailing wage takes how much you pay workers (and, since benefits are often included, how well you treat them) out of the equation. Contractors have to compete on the quality of their work, how quickly they can get the job done and how efficient their workers are, rather than on pricing alone. Prevailing wage laws stand to preserve (often explicitly) the work unions have done in negotiating higher wages for employees. Since collective bargaining agreements are often taken into account when determining the prevailing wage, it’s usually comparable to what union workers make. That means union shops can usually compete on government projects, rather than losing out to contractors who pay their workers less than the union rate. Most types of employment that could be considered construction are bound by prevailing wage rates, at least when it comes to public works projects. Repair work is covered, too, as is demolition, remodeling, renovation and utilities work. Like many legal arguments, the dispute over prevailing wage laws doesn’t seem well-rooted in fact. Numerous studies have looked into this question, of whether prevailing wages drastically increase the cost of public projects, and by and large the answer has been clear: no, they don’t. But before we get to any studies, note that labor doesn’t account for most of a construction project’s cost. Even if prevailing wage laws do force wages to rise, that increase doesn’t have much effect on the total cost of a project. On average, 25% of a project’s cost will go to laborers, including payroll taxes (which necessarily increase the more you pay your workers) and benefits. Increasing those wages by as much as 10%, according to the Economic Policy Institute‘s, would only increase the total of a contract by around 2.5%, basically negligible in mind. From the outset, then, it looks like controlling wages up or down won’t affect the cost of public work to governments by all that much. Now let’s get into the research. Comparing the costs of school construction in all 50 states, researchers from the State University system and the University of Utah found that prevailing wage laws didn’t affect construction costs in a meaningful way. Their results, published in a 2003 edition of Industrial Relations, flew in the face of then-wide spread arguments that repealing the laws would decrease the burden of building new schools for taxpayers. Importantly, the researchers controlled for the business cycle, since construction is a “boom and bust” industry, cycling through periods of more or less activity. Instead of prevailing wage laws, decreases in cost were linked to economies of scale. For example, doubling the size of a construction project increased the job’s total cost by only 93%, rather than the 100% one would expect all else being equal. Public schools cost over 15% more than private schools to build, but that was true independent of whether prevailing wage laws were present in the state under consideration. State tax revenues get hit hard, too, so hard that any savings in cost associated with lower construction bids are overshadowed by the losses in revenue. Occupational injuries increase, leading to higher workers comp insurance costs. States without prevailing wage laws tend to rely heavily on low-skill workers, since their cheaper, increasing maintenance costs over the long-term. Steps For Determining Your Rate• Find your craft & location: First, head over to this link and follow the steps listed in one through six in the information table until you find your classification/craft and the location of the work you performed. • Determine your prevailing rate: Second, it is important to note that the determinations provide two important numbers, the first being the “basic hourly rate”, and the second being the “total hourly rate.”Employers in Utah are required to provide their employees the basic hourly rate as a minimum wage for work performed. This is the minimum amount of hourly monetary compensation that an employee must be paid. The total hourly rate is the minimum rate an employee must receive but also factors in fringe benefits including but not limited to health insurance, paid vacation time, or pension. When a company provides its employee a fringe benefit it is in effect providing it non-cash compensation, the total hourly rate allows the employer to offset the amount of actual cost of the fringe benefit. If the employer does not provide fringe benefits or chooses not to offset the fringe benefits, it must provide the total hourly rate to the employee as monetary compensation. There can be serious ramifications for employers who engage in wage theft. Public works contractors/subcontractors that pay less than the prevailing rate in Utah may be assessed penalties, can be suspended from bidding or working on public works projects, and can also be subject in some circumstances to criminal prosecution if they failed to maintain code compliant payroll records. Claimants can file a complaint with the DIR, or hire an employment lawyer to handle their claim for them. Often times workers will be surprised to learn that their employer may have also violated Utah overtime law, or that waiting time penalties may have accrued for their benefit because their employer failed to pay them a final paycheck of all the wages they were due on their termination or resignation. As previously mentioned, claimants who believe they have not been paid appropriately can file a public works complaint with the Division of Labor Standards Enforcement (Public Works—Initial Report (DLSE-PW Form 1). Filing of the complaint initiates an investigation of the contractor/subcontractor. If violations are found, the Labor Commissioner will issue a citation and assessment notifying the public agency that awarded the public works project to the contract. The DLSE will instruct the agency to withhold funds due from the contractor to payout wages and penalties. The assessment is in writing, describes the basis of the violations and the amount of wages, forfeitures, and penalties due. The public agency then serves the contractor with a copy of the assessment and citation. If appropriate payments are not made within sixty days the contractor, subcontractor, and bonding company which secured the payment of wages will become liable for liquidated damages for an amount equal to the amount of unpaid wages. Prevailing wage laws help motivate more aggressive collective bargaining. In conjunction with a heightened emphasis on apprenticeship programs, generally a priority for unions, the level playing field prevailing wage laws create for union contractors radically increases worker productivity, and thus cost savings for local and state governments. Business Lawyer Free ConsultationIf you are here, you probably have a business law issue you need help with, call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with Business Law. Business Start Up. SEC Law. Securities Registration. Private Placement Memorandums. Corporate Law. LLCs. Sub-chapter S Corporations. Bylaws. Operating Agreements. Business Litigation. Business Mediation. Business Arbitration. Business Negotiations. Business Financing and Banking. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C itemprop=”addressLocality”>West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Bankruptcy Lawyer Bountiful Utah via Michael Anderson https://www.ascentlawfirm.com/do-salaried-employees-get-paid-prevailing-wage-rates/ No. Utah is not a community property state. Utah is a marital property state. Community property issues can arise in divorce proceedings and after the death of a spouse. When spouses divorce or die, spouses are often left with the daunting task of splitting up property and proceeds that were acquired during the marriage. This can include items of value such as cars, furniture, paintings, and family homes, but may also include intangible assets (such as stocks, bonds, and legal title), and also debt. In some states, property acquired during the marriage is considered part of the “community” and is often split 50/50 in cases of divorce. How the states treat “community property,” also known as “marital property,” will determine what happens to debt or assets upon divorce. Community Property LawsCommunity property is represented by state laws, and not all states have such laws on the books. Nine states (and Puerto Rico) have a network property laws that decide how obligation and property are separated in a separation. These states incorporate Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Such states commonly isolate property similarly, though all different states pursue impartial appropriation, implying that a judge chooses what is evenhanded, or reasonable. The Frozen North is interesting in that it permits separating from couples to pick. While each state decides how property is partitioned after a separation, the laws may vary somewhat on how it’s isolated. For instance, a few states, similar to California, split obligation and property “similarly” (50/50), while different states, similar to Texas, will partition obligations and resources “impartially.” Courts in states that apply the fair circulation tenet think about a wide range of components, some of which warrant uneven dispersion of property or obligation, even in network property states. Since these laws influence property and other important resources, they can profoundly affect a life partner’s future when they are compelled to share some portion of an advantage which was believed to be isolated property. Missing a prenuptial understanding between the gatherings, the state law wherein the couple was hitched will manage how property will be conveyed. Community Property versus Separate PropertyBy and large, property procured during a marriage has a place with the two companions. This is particularly valid in states that have a network property laws on the books. While only one out of every odd state has such laws, property obtained during the span of a marriage is disseminated endless supply of the marriage. Instances of network property may include: Wages earned by either life partner during the marriage Home and furniture bought during the marriage with conjugal profit (revamp) Premium salary earned by business ventures and tasks Home loans and the family home Separate property, then again, is what was possessed preceding the marriage; acquired or got as a blessing during the marriage; and anything either spouse earned after the date of partition Instances of separate property may include: Financial balances which are held independently Legacies gained during a marriage, whenever held independently Inheritances. Individual damage continues Any property gained after the disintegration of a marriage Courts have likewise characterized some property as “halfway” or “semi” network property. This incorporates property resources that would have been characterized as independent property toward the start or during the marriage, however that has turned out to be conjugal property on account of coexisting and different conditions inside the marriage. Marital Property and Community Property StatesThe states having a community property are Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin. Some community property states observe the standard that all advantages obtained during the marriage are considered “community property.” Conjugal property in network property states are claimed by the two companions similarly (50/50). This conjugal property incorporates income, all property purchased with those profit, and all obligations gathered during the marriage. Network property starts at the marriage and finishes when the couple physically isolates with the aim of not proceeding with the marriage. Thus, any profit or obligations beginning after this time will be discrete property. Any benefits obtained before the marriage are viewed as independent property, and are claimed uniquely by that unique proprietor. A mate can, in any case, move the title of any of their different property to the next life partner (blessing) or to the network property (making a mate a record holder on financial balance). Life partners can likewise mix together their different property with network property, for instance, by including assets from before the union with the network property reserves. Companions may not move, change, or take out any entire bit of network property without the other life partner’s consent, however can deal with their very own half . Be that as it may, the entire piece incorporates the other companion’s one half intrigue. As it were, that mate can’t be estranged the one a large portion of that has a place with them. Separate property includes: Property owned by just one spouse before the marriage Property given to just one spouse before or during the marriage Property inherited by just one spouse Community property includes: Money either spouse earned during the marriage Things bought with money either spouse earned during the marriage Separate property that has become so mixed with community property that it can’t be identified. Utah Is NOT a Community Property StateThere are two different ways states partition marital property: fair dispersion and division of your property. Utah is an impartial dispersion or precedent-based law state, which is the greater part martial property lawful framework. In any case, huge quantities of individuals, particularly in the Western U.S., live in network property states. This implies conjugal property in Utah isn’t naturally thought to be possessed by the two life partners and consequently ought to be isolated similarly in a separation. Utah is an impartial appropriation express that doesn’t have a network property laws. Be that as it may, some places have put in place laws about this. The UCDPRDA permits an individual who lived in a state with community property for its martial property laws, (for example, Nevada and Idaho) and after that moved to a state without community property (in particular, Utah) to not lose any previous property rights. Amy and John were married in California. While living in California, they opened a financial balance and stored community property assets into the record. Following quite a while, the couple at that point moved to Utah. The California record stayed open. While living in Utah, John dies and leaves half of the assets in the record to his friend Jane. Amy doesn’t need Jane to get half of the record and accepts that the majority of the assets held in the California record should go to her. Who gets the assets in the California account? Since Utah isn’t a community property state, just property that is titled in the perished’s people name can be passed to someone else by a will. Along these lines, if the record had been made in Utah, and at John’s demise the record was titled to Amy, at that point John couldn’t give Jane half of the record upon his passing. He would reserve no option to discard any of the assets from the record in his will. Rather, the whole record would be moved to Amy. In any case, California is a network property state. While John and Amy may have been living in Utah when John kicked the bucket, Utah permits property held in a network property state to be dispersed by the community property standards. Under the network property measures, a mate is qualified for discard one portion of any network property got during the marriage, paying little mind to who the property is titled to. In this manner, in the model expressed above, John would have the option to pass one portion of the record to Jane in the event that he wished to do as such. After John’s demise, Amy would claim one-portion of the assets in the record and Jane would owe the other half. It is imperative to note, be that as it may, that if John didn’t execute a will before his demise, the whole record would go to Amy. Who Keeps What?It’s critical to underscore that evenhanded circulation influences just conjugal property, which doesn’t really incorporate all the property you and your life partner may possess. Utah’s laws don’t supply an obvious definition recognizing conjugal property from independent property, which can prompt equivocalness and disarray. In any case, when in doubt, the court will normally confirm that “property claimed by the life partners before the marriage or gotten by blessing or legacy during the marriage is generally not viewed as conjugal property.” For instance, on the off chance that only you acquire cash from your relatives, and your better half or spouse is excluded in the legacy, the legacy is viewed as your own, isolated property. The court can’t grant a thing of your different property to your life partner, or the other way around. Spouses are normally permitted to keep things which aren’t considered conjugal property, however there are a couple of special cases. For instance, separate property can later wind up conjugal property relying upon how it is utilized. Individuals who are experiencing a separation in Utah are dependent upon the fair division of property law and the general watchfulness of a court-delegated judge. Regardless of whether a couple is experiencing a separation or lawful division, there are a few subtleties that must be arranged and incorporated into the last settlement. Property division can be one of the most moving subjects to cover during a partition, as certain couples may experience issues splitting their property and resources agreeably. While some Utah couples can separate their very own property and resources through the intervention procedure, others might be in an ideal situation leaving the destiny of their things in the hands of a court-delegated judge. Utah is just one of the many states in the nation that uses the equitable distribution of property model when separating property in a divorce. Unlike the community property model, which divides all marital property evenly in half, the equitable division model allows the judge to make decisions based off the unique circumstances of the divorce case. For example, if one spouse is given primary custody of the children, the judge may decide to let that spouse keep the house. After the judge has a full understanding of the case, he or she will distribute the marital property and assets accordingly. Since the judge is given the final say as to who gets what in the divorce settlement, he or she may consider the following factors, according to Utah State Legislature: • Whether there are children involved. • The nature of the debt and/or financial obligations that the couple is responsible for. • How long the marriage lasted. • The amount of income each spouse generates as well as any potential income he or she may have based on education, experience and skill set. The judge will also look at whether either spouse contributed to the education or career of the other spouse by staying at home with the children or working to financially support those advancements. Marital Vs. Non-Marital PropertySome property items and assets may be ineligible for division in the settlement and could remain with the original owner. According to Forbes, separate property includes items that either spouse owned prior to becoming married. Certain items, including inheritance and gifts from third-parties, may also remain with one party after the divorce is finalized. In some cases, separate property can become marital if it is mixed in with other marital property. For instance, if a spouse’s inheritance money is deposited into a joint bank account with the other spouse’s name attached, it may be considered marital property. Divorce ProcessGoing through a divorce can be emotional, and it can be difficult to make critical decisions when you are dealing with high amounts of stress. A Utah attorney who understands the state’s divorce laws may be an essential component of the process. Divorce Attorney Free ConsultationIf you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law LLC (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C itemprop=”addressLocality”>West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
How Do I Find A Will Of A Deceased Person Online? via Michael Anderson https://www.ascentlawfirm.com/is-utah-a-community-property-state/ If your property has been included in a comprehensive plan, consult an experienced South Salt lake Utah real estate lawyer. The real goal of a comprehensive plan is to decide where a community wants to go in the future. There is a normative aspect to the comprehensive plan. Good planners will survey their residents and businesses to find out what they want and what they want their community to look like. The real purpose of the comprehensive plan is a needs assessment and chart for the future of a city, town, or a county. It is an effort to answer questions such as: Do we need more housing in the city? Do we need more parks? Is another school needed, or more retail shopping or should we maybe enlarge the tax base by trying to encourage a new factory or business? These are the most general questions that a comprehensive plan tries to address, and the successful plan then tries to make sure that the land use laws for the community reflect the choices that have been made in the comprehensive plan. Once a comprehensive plan has been developed, it is subject to public debate, hearings, and eventually a vote by a city council or the body adopting it. This plan is often considered a law or an ordinance and in some cases might require more than a simple majority to adopt it. The important point to note is that a good comprehensive plan is subject to long, intense, and open discussion. It permits broad citizen input, and the eventual adoption should not come as a surprise to anyone. A second major point when it comes to a comprehensive plan is that, once adopted, it does not go onto a shelf or sit in someone’s computer. Comprehensive plans are “alive.” By that, they are meant to be blueprints for everything else a community does. They should be guides for the economic, housing, and other types of development that a community plans for the next five or ten years. Moreover, comprehensive plans are the cornerstone for many other documents and actions undertaken by the government. Once a comprehensive plan has been adopted it is, for example, the basis for a zoning code. This means that in terms of a hierarchy, the comprehensive plan is the most important document, and then after that, the zoning ordinance or code must be in accordance with it. Conflicts between the two generally mean that the comprehensive plan prevails. Or, phrased another way, if the zoning ordinance does not comply with the comprehensive plan, the former is illegal. Combined, the comprehensive plan and the zoning code are really the master plans for economic development and planning for a community. Together they should set out specific goals and a direction for what a community wants to look like in the future. Together they should state, for example, that a community would like to turn some vacant land into a future home for a mall. Or, perhaps together they might state that land currently zoned industrial should be used in the future as a mixed-use residential area with some shopping and maybe some recreational activities. The hope in doing this is that land comped and zoned for a specific use will attract the appropriate investment and interest to make that happen. A local government, such as a city, can also make that possibility more real by doing things such as making infrastructure investments that will facilitate the development they would like to see. These infrastructure investments might be money for roads, water, or sewer lines, or, they might be resources that make it less costly for a developer to build housing or a shopping mall. Below the level of a comprehensive plan and a zoning ordinance is the creation of a specific plan for a particular project or parcel or parcels of land. This plan too must be in accordance with the comprehensive plan and zoning. If it is not, either the project cannot be done or the comprehensive plan and the zoning must be changed to accommodate or permit this project. But what type of project is in question here? Almost anything. Reference to a specific project means any type of development or public works project proposed by either a private party or by the government or governmental agency. For the former it could be a project to build housing, or maybe a new store, shopping mall, or even perhaps an industrial park or just about anything else that a private party might want to build. For a governmental agency or unit, it could include any of the above; or it might be a road, park, or cemetery; or the agency might want to clear and develop land that will make it possible for a developer to be able to accomplish some project that needs land. The critical issue here is that there is some parcel or several parcels of land within some community and someone wants to develop them. The assumption here will be that the land aimed to be developed is privately owned and it would need to be acquired in order for the project to happen. This is where the government and eminent domain step in. Any project where eminent domain is involved, or where some type of government action is required, is going to need to be approved by the local government. This may also be true when no government money or action is required. The purpose of the hearings and approvals is to make sure that the project is compatible with applicable zoning and comprehensive plan requirements, that the proposal meets other housing or building code requirements, or that it otherwise complies with all applicable laws that will affect the proposed use and properties in question. The hearings and governmental approval are often also informational. They are in part to inform public officials about a proposed project, and also to provide information to neighbors and other citizens. Finally, these initial hearings may also be necessary if eminent domain is to be used because they may begin the process of helping the government decide if there is a valid public use associated with the project such that it could take property if necessary. Overall, these hearings on a specific project are important in making it possible to develop some property. At some point during these hearings, the developer and the jurisdiction or government in question will identify specific properties or parcels needed. This may have already occurred in the early design stage when the initial plan for the project was presented. At that point, the government or the developer might have already owned all the property needed for a project, or it might have already identified the land that it needed or wanted, even if neither of them already owned the property in terms of a fee simple absolute. However, in some cases, no specific parcels of land had been designated. In either case, at some point in the project review the property needs will be determined, including ones that need to be acquired from other owners. This property identification will include showing them on a map, but more important, this stage in the process seeks to determine the official legal description for the properties, as well who the owners are. This means asking who has a legal interest in the property. Owners may have already been involved or contacted during the preliminary planning stage; they may have attended earlier hearings; or they may in fact be a partner or involved already with the project in some way. But at some point, owners need to be officially notified that their property is being considered for some type of development project. With almost any project that involves a public works project or a private development, the starting point begins with seeking the cooperation of the property owners. While the image may be that “big, bad, ugly developers” come into town and force owners to sell their property or threaten them with eminent domain, the reality is that most of the time efforts are first made to negotiate with property owners in order to convince them to sell their property. Almost no one wants a court fight that will drag out for years and cost both sides tens of thousands of dollars or more. The effort will be to convince owners willingly to sell their property. If owners agree to sell their property, then the issue is price. How much do owners deserve for their property? Constitutionally, the standard is fair market value. This, of course, makes a lot of sense. If an owner plans to sell her property, she would be a fool (or very generous!) to sell her property for less than the fair market value. The very definition of fair market value that courts often use—what a willing buyer would pay a willing seller—is what owner and developer or local government will try to identify. The two will simply negotiate a price that both parties believe is fair. Three ways to decide what the fair price is are often used to guide negotiations. First, both sides will look to comparable sales of similar property. By that, both sides will look at other properties that are similar in as many respects as possible in order to determine price. This might mean looking at the price that other homes in similar neighborhoods sold for in the last three or six months. This is the same process that realtors often use when trying to price property. A second way to determine a fair market value is the “replacement cost,” meaning, what it would cost to replace the home, for example, if it had to be built from scratch today. This is similar to a test used by insurance companies when writing policies. Often property owners will purchase policies for the replacement cost of their homes or businesses. Finally, a third test might be to look at the income stream produced by a specific property. This test is more common with businesses and rental property. Here, one seeks to determine the value of the property as an investment asset. This would be the type of evaluation used most commonly in business negotiations involving the sale of business property. This preliminary stage when owners and sellers are negotiating the determination of fair market value may be more or less formal. By that, a less formal attempt at determining a price may simply be estimates of value based upon quick estimates of the comparable value, replacement, or income streams. However, in some cases, the appraisal process might be more formal if there is a serious dispute. At this point, outside experts may be brought in to implement a formal appraisal process. Eventually, if the owner and buyer cannot agree on a price and eminent domain is used, a court will hold a hearing regarding what the fair market value is, and formal appraisals will be ordered. Based on those appraisals, a court will fix the fair market value. As part of negotiating fair market value, an owner may also receive relocation costs or assistance. This assistance might include costs associated with looking for a new home or business location, the costs of moving and relocation, and perhaps any other incidental costs. All of this is subject to negotiation. Additionally, if the property has tenants, they too may be awarded compensation to buy out their leases, to pay for relocation, or to address any expenses they may also have. Or in some situations, buyers may condition a sale that requires owners to deliver to them property that is already free of tenants. This means the owners may have to do their own negotiations with their tenants. This might involve buying out their tenants, or they might have what is called a “condemnation clause” in their leases. A condemnation clause would inform tenants that, in the event that the property is taken by eminent domain, the leases would automatically expire within a certain number of days, weeks, or months. South Salt Lake City Utah Real Estate Attorney Free ConsultationWhen you need legal help with real estate in South Salt Lake City Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with all real estate issues. Quiet Title. Partition Actions. Zoning. Boundary Disputes. CC&Rs. Declarations of Condominiums. And More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C itemprop=”addressLocality”>West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Can Credit Repair Help With A Student Loan? via Michael Anderson https://www.ascentlawfirm.com/real-estate-lawyer-south-salt-lake/ If you are thinking how your properties and assets will be distributed after your death, speak to an experienced Riverton Utah family lawyer. Succession LawsTo enable orderly disposition of the affairs of someone who dies, the law provides machinery for payment of debts, death taxes, and expenses of administration, and for distribution of remaining assets to those entitled to the estate under the terms of the will or, if there is no will, under the applicable intestate laws. This is done by appointment of a personal representative, generally called an “executor, ” if named in the will or an “administrator” if not named in the will. The personal representative has the right and obligation to take possession of the property and to apply it to the payment of funeral expenses, debts, and the costs of administering the estate. Costs of administration usually include compensation to the personal representative and a fee to counsel for the estate. The remainder is distributed to the individuals named in the will. You don’t need to have a will. If you die without a will, the State of Utah will only be too happy to deal with your property and distribute it according to Utah intestacy laws. So your money may end up in the hands of someone who you never wanted to give your money to. When there is a probated estate, the deceased is much more likely than not to have a will. To be sure, not everybody who actually has a will ends up with a probate file. Sometimes a will cannot be found. If the estate is small, the family may not bother to file the will in court. Poor people usually die intestate, and their property rarely goes through probate. The descendants divide the equal share the deceased child would have received if living. If there are no children or descendants of children, the property that does not go to the surviving spouse will typically go to parents and, if there are no parents, to brothers and sisters. Many states limit inheritance by remote relatives; if there are no next of kin closer than some designated degree such as first cousin or children of first cousins, the property that does not pass to the surviving spouse will go to the state. The intestate pattern is frequently unsatisfactory to a married person who primarily wants to make sure that his or her spouse will be adequately taken care of and wishes to provide for children or others only out of funds not likely to be needed for the spouse. Intestate laws may also fail to take care of the special cases of adopted children or stepchildren and, of course, make no provision for non-relatives or favored charities. If minors are among the next of kin of someone who dies without leaving a will, it will usually be necessary, unless the amount involved is small, to have a guardian appointed by the court to receive their shares of the estate. In many states, the court will not appoint a surviving parent or other close relative who might be the very person the deceased would have chosen. The expense of settling an intestate estate usually is higher than for an estate administered under a will. The extra costs can arise in various ways. Speak to an experienced Riverton Utah to know how you can make your own will. Changing your willGenerally speaking, the law has stood firm on one crucial point. The law will not take into account the mere fact that a will is old, out-dated, and doesn’t seem to fit the testator’s present situation or conform to his later wishes. The message is plain: if your situation changes, then change your will. Otherwise, the old will stands. To err is human. This is true for lawyers as well as for ordinary people. Lots of wills have mistakes in them—spelling errors, grammatical errors, ambiguities, words or whole paragraphs left out, words or whole paragraphs put in by mistake, and so on. Lawyers who draft wills proofread them carefully, for the most part; but inevitably mistakes creep in, through carelessness or sheer ignorance. Standard doctrine once insisted that courts had absolutely no right or power to correct a mistake in a will. If a will left money to Milly instead of Billy because somebody’s finger slipped and nobody caught the mistake, then Milly would get the money (if there was a Milly). Wills were to be read literally. Courts refused to listen to testimony, or admit evidence, which contradicted what the will itself said. Even if the lawyer who drafted the will admitted the mistake, and beat his breast and cried out “mea culpa,” the will would stand as written. No doubt typos and other mistakes are common enough in wills. Rarely do they make much of a difference; and as we know, only a tiny percentage of wills are ever challenged in court. The case law does show a strong trend toward relaxing the formalities—at least somewhat. No contest clauseMany wills also try to protect themselves with no-contest clauses. These are standard clauses that threaten to disinherit anybody who contests the will, or leave one dollar to anybody who does so, or words to that effect. Of course, if you contest a will successfully, the no-contest clause dies along with the will. And if the will left you nothing, you have nothing to lose. The clause can be effective, on the other hand, if the will left you something, but (in your opinion) not enough. Contesting the will could cost you the something, and you would end up with nothing at all. Contesting a willIf you want to contest a will, consult an experienced Riverton Utah family lawyer. To contest a will, too, you have to have “standing.” You cannot contest unless you would gain personally if the will failed, in whole or in part. If your father disinherited you, and you are an “heir-at-law” (someone who would be entitled to a share if your father died without a will), then you have “standing” (a right) to contest. So too if you were supposed to inherit money under an earlier will. Even if you have standing to contest, you must have a valid legal reason. That the will was unfair, mean, or unjust is simply not (formally) a reason. Another non-reason, for the most part, is that the will fails to reflect what the dead person actually wanted to do. This might be perfectly true: it might be obvious that he or she planned a new will and never got around to it. The courts on the whole refuse to listen to arguments about intention, or to receive any evidence of it, unless there was an actual will. On what basis, then, can you contest a will? You can say that it is not the dead man’s will at all, that the will was a forgery. This is not a very common claim. Fraud is another basis for contesting a will. But this too is a rare claim, and rarely successful. The books and the cases talk about “fraud in the inducement,” and “fraud in the execution.” Fraud in the inducement means “willfully false statements of fact,” that intends to deceive testator and induce him to make a will, and without which he would not have made such a will.” Lies about the will itself—the document—which induce the testator to “execute an instrument of whose nature or contents he is ignorant,” constitute fraud in the execution. A disappointed heir can also contest a will by claiming it was not properly executed. The statutes set out requirements for a valid will, and they have to be followed. In fact, very few wills have fatal flaws. There are, however, plenty of decisions on technicalities: whether the witnesses and the testator are in each other’s “presence,” whether the signature was in the right place, whether the will was properly signed, and so on. Enough decisions, in short, to provide editors of casebooks with plenty of material to fill their pages. Still, such cases represent a tiny minority of contested wills, itself a tiny minority of wills filed in court. In fact, over 99% of all wills are properly executed. This is almost always true when a lawyer is involved. Complying with the statutes is not rocket science. If you follow a few simple rules when the client comes in to sign his will, there is almost no chance of making a mistake. Any lawyer, unless he is utterly incompetent, can guarantee, with close to 100% assurance, that a document she prepared, and which was signed and witnessed in the office, was properly done. Besides, as today’s courts become more indulgent, it is getting harder to break a will by showing some minor flaw in execution. Lack of capacity” means either that you are too young to make out a will or are, to put it bluntly, too deranged or demented to do so. Too young is almost never grounds for a contest. The statutes typically say that you have to be an adult to execute a will. Any will is vulnerable. Newspapers are eager to print bizarre or intriguing stories about will contests, especially if the dead person was rich or famous. But such accounts can be misleading. When all is said and done, it is easy to claim the testator lacked capacity, and hard to convince a judge or jury that this is true. The courts have to draw a line between people who are somewhat eccentric and those who, at least in the eyes of contemporaries, would be considered downright insane. Conventional standards of the times determine what is considered insanity or depravity. The courts repeat certain stock doctrines endlessly. But in truth, the cases turn on their particular facts. Contests usually fail; still, results are not always predictable. There are cases where the testator seems senile, or a lunatic, or hopelessly drunk and befuddled, or even an inmate of a mental institution; and yet the will passes muster. Courts routinely state that a person does not need much in the way of brain cells to make out a will. The “test” for testamentary capacity is not the same as the “test” for the capacity to enter into a contract, or to function very well at all (financially speaking). Some cases seem to stretch this point to the limit. The court can always say that the testator made out the will during a “lucid moment.” Don’t let your near and dear ones miss out on receiving a share in your assets once you are gone. Speak to an experienced Riverton Utah family lawyer today. Riverton Utah Family Lawyer Free ConsultationWhen you need legal help with a family matter in Riverton Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help with estate planning, asset protection, divorce, child support, child custody, alimony, divorce modifications, child custody order, criminal defense, DUI, Elder Law, Guardianships, Conservatorships, and much more. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C itemprop=”addressLocality”>West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
via Michael Anderson https://www.ascentlawfirm.com/family-lawyer-riverton-utah/ Business law encompasses all of the laws that dictate how to form and run a business. This includes all of the laws that govern how to start, buy, manage and close or sell any type of business. Business laws establish the rules that all businesses should follow. A savvy businessperson will be generally familiar with business laws and know when to seek the advice of a licensed attorney. Business law includes state and federal laws, as well as administrative regulations. Let’s take a look at some of the areas included under the umbrella of business law. Much of business law addresses the different types of business organizations. There are laws regarding how to properly form and run each type. This includes laws about entities such as corporations, partnerships and limited liability companies. There are many laws that concern managing a business because there are many aspects involved in managing. As you can already see, running a business will involve a lot of employment law and contract law. While Utah has not yet adopted the Uniform Deceptive Trade Practices Act, the state has enacted several statutes within its Consumer Protection and Criminal sections that prohibit sellers from intentionally misleading buyers. These laws prohibit everything from mislabeling food products to altering a used car’s odometer. Utah’s laws prohibiting deceptive trade practices are generally limited to prosecuting scams after they happen. Therefore, consumers must do their best to avoid these swindles before they happen. A state consumer protection office can give you the most up-to-date information on local scams, and receive reports about a person or local business engaging in deceptive business practices. State deceptive trade statutes can be as confusing. If you would like legal assistance regarding a consumer fraud or a possible deceptive trade practices matter, you can consult with a Utah consumer protection attorney. In Utah, pyramid and Ponzi schemes are illegal under the Pyramid Scheme Act. A pyramid scheme is a sales device or plan where a person makes what is essentially a worthless investment that is contingent upon procuring others who must also invest and procure other investors, thereby perpetuating a chain of people. The Beehive State outlaws participating in, organizing, establishing, promoting, or administering a pyramid scheme. Pyramid or Ponzi schemes are also considered deceptive acts or practices prohibited under Utah’s Consumer Sales Practices Act. The following is a quick summary of Utah pyramid and Ponzi scheme laws. Utah Pyramid and Ponzi Scheme LawsWhat is prohibited: Knowingly participating in, organizing, establishing, promoting, or administering a pyramid scheme. Knowingly organizing, establishing, promoting, or administering a pyramid scheme is a third-degree felony punishable by up to 5 years in prison and up to $5,000 in fines. Knowingly participating in a pyramid scheme and receiving compensation for procuring other investors is a Class B misdemeanor punishable by up to 6 months in prison and up to $1,000 in fines. An injured party may file an action to recover damages and the court may also award interest, reasonable attorney’s fees, and costs. A pyramid or Ponzi scheme is also a deceptive act or practice and under the Consumer Sales Practices Act, the Division of Consumer Protection may issue a cease-and-desist order and impose up to $2,500 in administrative fines for each violation. The Division of Consumer Protection may also seek a restraining order or injunction to stop a pyramid or Ponzi scheme. If the injunction is violated, the court may impose up to $5,000 each day in fines for each violation. Utah’s minimum wage law doesn’t apply to the following workers: • Any employee entitled to a Federal minimum wage as provided in 29 U.S.C. Sec. 201 et seq. of the FLSA • Outside sales persons • Employee who are members of the employer’s immediate family • Employees who provide companionship services to people who (because of age or infirmity) aren’t able to care for themselves • Casual and domestic employees • Seasonal employees of nonprofit camping programs, religious, or recreational programs, and nonprofit or charitable organizations • Employees of the USA • Prisoners employed through the prison system • Agricultural employees who mainly produce livestock, harvest crops on a piece rate basis, worked as an agricultural employee for less than 13 weeks during the previous year, or retired and performs incidental work as a condition of residing on a farm • Registered apprentices or students employed by their educational institution, or • Seasonal hourly employees employed by a seasonal amusement park Employing MinorsA “minor” is any person under 18 years old. In Utah, a minor employee must be paid at least $4.25 per hour for the first 90 days working for a particular employer, and then the minor must be paid a minimum wage of $7.25 per hour. Tipped EmployeesA “tipped employee” is a worker who regularly receives tips from customers. For example, waiters and waitresses are traditionally tipped employees. An employer may credit tips received by tipped employees against the employer’s minimum wage obligation. An employee must receive at least $30.00 in tips per month before the credit is allowed. Tipped employees can be paid as little as $2.13 per hour, so long as this base pay combined with the employee’s tips equals at least $7.25 per hour. Additional information about tipped employees: • Service charges that are imposed on a customer don’t qualify as tips • Tip pooling or sharing among employees who regularly receive tips qualifies • Dishwashers, chefs, cooks, janitors, and other employees who don’t regularly receive tips from customers don’t qualify as tipped employees Enforcement of the Minimum WageIf an employer in Utah repeatedly violates the minimum wage law outlined above, that employer has committed a Class B misdemeanor. A Class B misdemeanor is punishable by up to six months in jail, and/or a fine of up to $1,000. An employee can bring a civil action against his employer in order to enforce his rights under Utah’s minimum wage laws. If the employee wins in court then he is entitled to injunctive relief and may recover the difference between the wage paid and the minimum wage, plus interest. If you’re an employee in Utah and feel that your employer has violated Utah’s state labor laws, you can file a claim with the Division of Antidiscrimination and Labor.• A “workweek” can be any 168 consecutive hours. The FLSA allows employers to set their own workweek. Overtime hours must be paid at a rate of at least 1½ of the employee’s standard pay rate. Utah Antitrust LawsAs consumers, we’re always wondering what’s going on behind the scenes in the “free market.” Are a few companies conspiring to set an inflated price? Or uniting to artificially control supply? And fellow businesses may wonder if their competitors are colluding in an effort to undercut competition. As long as the battle for sales is open, transparent, and above board, we’re generally okay with it. That’s why the State has strict laws created to make sure pricing is fair and to protect open markets. State antitrust laws prohibit companies gaining an unfair competitive advantage in the consumer market via collusion between companies. These laws will also try to avoid monopolies by blocking certain mergers and acquisitions as well. In order to enforce these provisions, Utah law allows private citizens, as well as the state attorney general, to bring lawsuits against companies for antitrust violations. If successful, a citizen may recover attorneys’ fees and the cost of the lawsuit. Antitrust EnforcementAlong with Utah’s antitrust statutes, there are numerous additional business regulations designed to protect free trade and commerce. The United States government uses two federal statutes, the Sherman Act and the Clayton Act, to assist states in prosecuting antitrust claims by prohibiting any interference with the ordinary, competitive pricing system, as well as price discrimination, exclusive dealing contracts and mergers that may lessen competition. If you suspect a person or business has committed an antitrust violation, you can report it the Utah Attorney General’s Markets and Financial Fraud Division. As with many statutes covering corporate malfeasance, state antitrust laws can be as complicated as the conspiracies they are intended to prevent. If you would like legal assistance regarding an antitrust matter, or if you are interested in understanding the rules and regulations regarding your business, you can consult with a Utah antitrust attorney in your area. Interest Rates LawsStates may craft their interest rate laws depending on the type of credit or loan involved. By restricting the amount of interest a creditor can charge, these laws are designed to help consumers avoid crippling debt and deter predatory lenders. Utah’s maximum interest rate is 10% absent a contract, and charging more than the legal rate, (known as “usury”) is a felony. Interest Rates on Judgments Federal post-judgment interest rate as of Jan. 1 of each year plus 2%; judgment on contract shall conform to contract and shall bear interest agreed to by parties The easiest way to prevent the financial pitfalls of high interest rate credit cards is to avoid credit card debt entirely. This is certainly easier said than done, but one of the best strategies for staying out of debt is to use a credit card responsibly and pay off the entire balance quickly — every month, if possible. For those already in significant credit card debt, there could be consumer protections under federal law that can help. Utah Statute of LimitationsAll states have developed laws to regulate the time periods within which a person can bring a civil action against another person or entity. These laws are called the “statutes of limitations.” If you sue after this time limit has run, your claim is barred and the defendant will automatically win. Read on to learn more about Utah’s civil statute of limitations laws. The time period to sue doesn’t start to run until the person knew or should have known they suffered harm and the nature of that harm. For example, a woman takes a fertility medication to have a child. Fifteen years later, she discovers her child has a reproductive system problem that didn’t show up until puberty and it’s discovered that all of the women who took this fertility medication have children with the same defect. She wasn’t warned of this possible problem until the child was older. The child’s time limit to sue for damages didn’t start when her mom first took the medicine, but when she discovered or reasonably should have discovered the related harm to her. However, if the drug company had a national campaign exposing the problem and contacted all former users to inform them of the problem, and the child, now an adult, still waited 15 more years to sue, it would probably be too late. This is called the “discovery of harm rule” and generally doesn’t apply to the most common personal injury claims, like car accidents and slip and falls. Tolling of the Statute of LimitationsThe time period to sue can be extended for various reasons, based on the legal concept of “tolling.” Generally, being under the age of majority, 18 years old in Utah, or having a mental disability causes the clock to stop. If someone suffered from severe mental illness for many years and was harmed during this time, it would be unfair to expect him or her to have the mental capacity to sue. Medical Malpractice Two years after discovering or reasonably should have discovered the injury caused by health care provider, but not more than four years from the date of act, omission, neglect, or occurrence. Business Lawyer Free ConsultationWhen you need legal help with a business matter in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help with Business Formations. Business Lawsuits. Business Restructuring. Franchises in Utah. Business Dissolutation. Business Administration. Bylaws. Private Placement Memorandums. Operating Agreements. Shareholder Derivative Actions. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Bankruptcy Lawyer Bluffdale Utah via Michael Anderson https://www.ascentlawfirm.com/business-law-in-utah/ If you are seeking a divorce in Tooele Utah, speak to an experienced Tooele Utah divorce lawyer. Each state including Utah has developed a statute that set forth the specific grounds that would be permitted in that state. Although there was some variation, typical fault grounds included: • adultery (sexual intercourse by a married person with anyone other than one’s own spouse); • mental or physical cruelty (including severe physical or emotional abuse but not quarrelsomeness, extravagance, laziness, undue strictness with children, lack of companionship, or callous indifference); • intoxication (habitual drunkenness) as defined by state law; • nonsupport (husband’s failure to provide suitable maintenance for his wife or family, assuming financial ability); • impotency (inability to perform sexually, as defined by an individual state law); • imprisonment for felony conviction • insanity (as legally defined by state law, whether or not confined to an institution). Although either party to a marriage could initiate a divorce action, in reality the large majority of those seeking fault-based divorces were men. The reasons for this were probably many, but two, in particular, are often cited. First, men were less stigmatized for being divorced, and many quickly remarried anyway. Second, and perhaps more significant, more married men could “afford” to get divorced while most married women, with little earned income and often children to be cared for, did not have the luxury of being unhappy in their marriages and seeking fulfillment elsewhere. Of course, in extreme cases some women were compelled to leave a marriage, and some did. But in most cases it was the men who sought to be divorced, and often a suitable ground had to be fabricated. Because of the nature of the fault system of divorce, a wife typically had substantial leverage over a husband seeking divorce because he often needed her cooperation to try to demonstrate the presence of fault grounds in order to obtain his divorce. Assuming that the wife was not guilty of a genuine fault ground, she would use her leverage to coerce a desirable financial settlement in the divorce proceeding. Child custody was rarely an issue since everyone assumed, in the usual case, that the mother would retain custody. At the same time, however, she also had a greater need for support for herself and the children. Thus the wife might offer to cooperate with a consent decree if her husband was willing to meet certain financial conditions. This meant that she would not contest that there were statutory grounds for the divorce, but rather consent that they were, in fact, present. In essence, the man would buy his wife’s agreement to the divorce by offering her an adequate economic package. The practical consequence of fault-based divorce was that it provided the wife with an important bargaining chip when negotiating for economic security for herself and her children. Development Of No-Fault LawsIn 1970, California became the first state in the country to adopt a no-fault-based ground for divorce. Since that time, virtually every other state has passed some form of no-fault legislation. Now commonly known as no-fault divorce, any married person seeking a divorce can file such a petition with or without the consent of a spouse. The petition alleges, in essence, that there has been an “irretrievable breakdown” of the marriage and that a divorce is sought on that basis. The traditional “fault” grounds may or may not be present, and when the case is heard both parties have an opportunity to complain of the misdeeds of the other. The no-fault system has developed as a part of a significant divorce-law reform whose purpose was to end the charade of perjured testimony and falsified evidence that permitted consent decrees under the fault system. In practice, no-fault has had a significant negative economic impact on the women and children of divorce. When a husband who wants to end his marriage can simply file a petition alleging that the marriage is irretrievably damaged, he leaves his wife without a defense to such an allegation and without a bargaining tool to provide for herself and her children. Although initially hailed as a rational and responsive measure to an issue that substantially affected the lives of many, no-fault divorce resulted in many unanticipated consequences, primarily for children and those women whose occupation was that of a homemaker. In fact, the fallout of no-fault divorce has been so disastrous for women and children that in many cases it has severely reduced or totally eliminated their ability to obtain the financial security customarily granted to them. Another major consequence of the reform of the divorce laws has been that child custody practices have changed. In earlier days, child custody was almost automatically awarded to the mother unless she was deemed unfit. This favored stay-at-home mothers whose “occupation” was to raise their children. The mothers and children were generally assured of a support award, primarily because mothers were the primary caretakers, and maternal custody resulted in continuity of child care. Today women who seek to stay at home and be supported by their ex-husbands face an uphill battle. First, economic circumstances often make it prohibitive, because many divorced fathers cannot even support themselves, let alone pay adequate child support and support two households without a second income. The consequence has been that mothers must return to the work force, at least on a part-time basis. Second, many men are now contesting the assumption that women should automatically become the sole custodians of children. Alternative arrangements, such as joint child custody, challenge the need for mothers to be full-time homemakers, even if their ex-husbands can afford to maintain them in that role. A third factor in the difficulty women have in continuing as homemakers following divorce is their ex-husbands’ resentment. Women have almost always been awarded custody of their children under both the fault and no-fault based systems of divorce because the “fault” or “innocence” of a party still has a bearing on child custody. Courts make custody decisions on the basis of what is best for the children. Any allegations against either party of cruelty, intoxication, desertion, or any of the other legal grounds will likely affect the court’s award of child custody. In many cases, the wife is the “innocent” party, at least with respect to the legal grounds that courts recognize. (Men perpetrate most of the physical and/or psychological abuse; men more often desert a family, etc.) As a result, women have always had an advantage in retaining child custody, but more often today, men resent paying support without a fair opportuntity to assert custodial rights. No-Fault In PracticeThe mechanics of no-fault law are that either spouse is entitled to assert that irreconcilable differences have caused an irretrievable breakdown of the marriage. Exactly what constitutes an irretrievable breakdown under a particular no-fault statute is unclear, but generally one or both parties will allege serious marital discord that makes it impossible to continue to function as husband and wife. In most states including Utah a no-fault divorce can be granted even if one party does not agree to it, or indeed, if only one party shows up at the hearing. The implication is that no fault is ascribed to either party, i.e., the breakdown of the marriage was not precipitated by cruelty on the part of either partner nor did other fault grounds exist. In practice, the designation of the grounds for a divorce is often negotiated by the parties. It is not uncommon, for example, for one partner to file for divorce based upon a fault grounds and ultimately reach a settlement of the financial issues and change the petition for divorce to a no-fault proceeding. The apparent purpose of the no-fault laws was not to require people to somehow justify their desire to get divorced but only to require that they provide for the dependents of the marriage. Traditional divorce laws based upon fault required the courts by statute to make dispositions of property as well as awards of child custody and support on the basis of what they deemed just and fair under the circumstances. Courts would use their discretion in allowing evidence of fault, because being found guilty or innocent in a divorce action had important consequences for alimony, property division, and child custody. In fact, under traditional law, the purpose of alimony was to financially “reward” an innocent spouse and to “punish” a guilty one. In practice, a wife found guilty of adultery might not be awarded alimony, while a husband found guilty of adultery might be ordered to pay excessive punitive alimony to his ex-wife. The same would be true for desertion. Since, historically, most cases involved a husband abandoning his wife, the wife, as the innocent spouse, would receive a larger alimony award if her husband was at fault. If you are seeking a divorce under Utah no fault laws, consult with an experienced Tooele Utah divorce lawyer. More than twenty years after the first no-fault laws went into effect, it appears that no-fault reform, instead of resulting in economic equality between spouses, has instead yielded economic detriment to women, sometimes with a windfall to men. No-fault has escalated the incidence of female heads of household and has substantially lowered the economic resources available to divorced women and their children. In fact, women and children now seem to get much fewer assets and support under no-fault laws as compared with settlements under the fault systems, although even under the fault regime, a woman’s economic status ended up substantially lower than that of her husband. Specifically, under no-fault, alimony is granted less frequently; it is awarded in smaller amounts and for shorter duration; child support awards are smaller and not necessarily always granted (depending upon custody); property settlements awarded to the wife have decreased; and, at the same time, the percentage of family debt awarded to the wife has increased. Under no-fault law, the court’s greatest emphasis is on two factors: (1) the wife’s employability, and (2) the duration of the marriage. Temporary (“transitional” or “rehabilitative”) alimony has become much more common than permanent alimony. This type of award is frequently granted to wives (usually) who may have left the work force or a training program to assume the responsibilities of being a married woman and mother. With few or outdated skills, she is given a limited period of time and support to “rehabilitate” herself and re-enter the work force. Under the nofault system, modifications and increases in support are the exception. Under the no-fault divorce laws, the average awards are smaller. In part, this may be the result of the altered bargaining position of women in no-fault divorce situations, but it is also likely that many judges presume that many women will, in fact, secure suitable employment after the divorce; the awards are set accordingly. Here again, in reality more often than not the courts underestimate the difficulty that a homemaker faces in finding a job that will make her self-sufficient. In many instances, alimony is virtually unheard of for women who are divorced in the early years of marriage (i.e., short-term marriages) under the current no-fault laws. Unless a woman has children at home and her husband is willing and able to maintain her as a primary caretaker, even women with children (except, perhaps, very young ones) will usually be expected to be self-supporting within a short period of time. Professional women in particular are rarely awarded alimony, even if they choose to be at home with the children and their husbands can afford to support them. The consequence is that motherhood is no longer a secure occupation, even in a household that can afford it, and stay-at home mothers have no guarantee that they will continue to be supported in that role after a divorce. A generation ago when women naturally expected that they would assume custody of their minor children, they also expected that their former husbands would be obligated to support the family. Many single-parent families were able to live on the alimony and child support obtained from ex-husbands, at least while the children were dependent. Their standard of living markedly decreased in many cases, as the economic burden of divorce has always affected women and children disproportionately. But if a man wanted a divorce, alimony and child support were part of the package. Today the realities are different. In the large majority of cases, women continue to be the primary caretakers of minor children. The difference is that today few families can live on the support provided by ex-husbands, even when court-ordered payments are made, which is all too often not the case. This problem reached crisis proportions by the early 1980s, when it was considered a “national scandal” that so few fathers were required to pay adequate support and so few children were receiving the support that was ordered. What had happened was that courts were awarding inadequate amounts of support and, even more disturbingly, they were failing to enforce the awards that were made. Federal Laws That Address Child SupportIn response to great political pressure, Congress intervened in the area of child support, which is almost exclusively within the domain of individual states. In 1975 Congress approved title IV- D of the Social Security Act. title IV-D was responsible for the development of a federal enforcement agency known as the Office of Child Support Enforcement. It also charged each state with establishing local offices for child support enforcement. The services that became available under the title IV-D program included: • parent locator services (to locate parents who disappear without fulfilling child support obligations; • paternity (or parentage) establishment (to help determine who the financially responsible parents are); • modification of support mechanisms (to keep awards current with the needs of the children and the ability of the parents) In response to escalating costs and a child support system seemingly out of control, Congress amended the IV-D program with the Child Support Enforcement Amendments of 1984 and the Family Support Act of 1988. The purpose, of course, was to improve the services available in each state. Congress ordered every state to set forth (for individual courts) specific statutory guidelines to determine child support and to beef up mechanisms for collecting it. The laws required that states set forth specific formulas in order to ensure a substantial amount of uniformity among awards to prevent different courts from imposing inconsistent obligations on similarly situated individuals. The guidelines vary from state to state, but generally three different models are used. For example, in about fifteen states courts are to award a flat percentage of the noncustodial parent’s (usually the father’s) income. It can be calculated in terms of gross or net income, as long as the courts are consistent. More than thirty states use an income share guideline. This is more complicated, because it takes into account the income of both parents as well as child care and other expenses. The support amount is figured by looking at both the income of the noncustodial parent and that income’s relationship to the combined income of both parents. Determination of the award also takes into account the fact that as total family income increases, the percentage allocated to childrearing expenses usually decreases. Finally, a few states use a formula that accommodates many more factors, including the obligations of the payor (such as financial responsibility for another family). In general, a court will determine the amount necessary to meet the basic needs of the children and then add a standard-of-living adjustment to the extent that additional income permits. Courts may be given more or less discretion to deviate from the guidelines, but once again the awards must be consistent. AFDCAs part of the Social Security Act, the federal government has long provided funds to assist financially needy families with children through its Aid to Families with Dependent Children (AFDC) program. AFDC is, in essence, a federally funded child support program that provides support for families with (a) dependent children and (b) an absent parent. In 1984, Congress decided that it would try to reduce AFDC obligations by pursuing delinquent fathers and making them support their dependent children. With this incentive, Congress made sweeping changes to the federal laws, specifically the 1984 Child Support Enforcement Amendments and later the Family Support Act of 1988. With the enactment of these federal programs, the federal government assumed an active role in the enforcement of child support. For example, under title IV-D the Office of Child Support Enforcement (OCSE) was established. Significantly, however, the role of the federal government continued to be limited to overseeing states’ administration of their own plans. The federal government assisted by coordinating cooperation among states, but a major problem with the present system has always been that once a deadbeat dad leaves the state, interstate enforcement of awards is difficult to enforce. OBRAAnother effort of the federal government to help the states deal with the child support crisis has been through the Omnibus Budget Reconciliation Act (OBRA), passed in 1993. The most relevant directive of OBRA is that states — if they wish to receive federal funding — must establish “expedited” procedures for determining paternity (or parenthood). The states were already required to have expedited procedures for enforcing child support orders. For example, the new regulations require that once the parent is located, the paternity procedure and the support order are to be in force within one year or less, regardless of whether the parent is in or out of state. One consequence of trying to expedite the process has been that states now use decision makers (sometimes known as “masters” or “referees”) other than judges in order to comply with the federal requirements without overburdening the state court systems. There are other important facets of OBRA that help determine a child’s parents and establish a support order. In particular, OBRA requires hospitals to establish various outreach programs designed to encourage the fathers of children born to unmarried women to voluntarily acknowledge their fatherhood. One such program is to make genetic testing available (at the hospitals where children are born) to any man who does not know, but is willing to find out, whether in fact he is the father of the child and is willing to be tested. The test may be offered at little or no cost. Another is to establish a mechanism for men to “sign up,” i.e., indicate that they recognize being a child’s father. This requires that the father understand the rights and obligations of parenthood. If, after being so informed, a man freely claims a child as his, a support order might then be based upon that acknowledgment. AFDC and State MandatesThe federal guidelines were designed in response to some startling statistics concerning the support of children in single-parent homes. For example, it is estimated that 87 percent of families receiving AFDC end up on the public dole because they do not get sufficient child support from the natural fathers. It is also estimated that less than 60 percent of children of divorce have been awarded any support at all and that less than half of those receive full payment and nearly a third of those receive nothing at all. It is also estimated that, after divorce, the standard of living of mothers and children declines by up to 70 percent, while the standard of living of fathers tends to increase up to 40 percent. There is no question that the breakup of a family is responsible for a great portion of the poverty in this country, and that failure to get or enforce child support awards is a major contributing factor. The enforcement programs that Congress developed and required states to adopt in some form (in order to keep getting AFDC for its residents) have a number of standard provisions. One is that each state must adopt some form of standardized child support guidelines to ensure that the awards are fair, adequate, and consistent; a second provision requires that states implement specific mechanisms to help track down delinquent parents when a support order is in effect and is not being honored. A third major requirement is that states provide collection services for families on AFDC. This not only helps get families off of public assistance, but it also reimburses AFDC for the money that it paid out in the event that delinquent parents are found and child support payments are collected. States have also developed specific tactics for collecting and distributing child support payments in specific cases and for getting delinquent fathers into court, establishing appropriate awards, modifying child support awards where necessary, and, most important, getting payments made. Each state has developed and implemented its own specific measures to try to fulfill the various objectives. For example, some states now draw their information from such sources as the Department of Motor Vehicles, credit bureau reports, property listings, and even quarterly wage statements from the Internal Revenue Service. To support these activities, the federal Office of Child Support has established a Parent Locator Service, which is able to access data contained within a number of the federal agencies and to use that information to assist custodial parents in collecting child support. Support While Living ApartMany states including Utah have simplified their procedures for helping both married and unmarried persons living apart to obtain child support. To obtain an order for temporary support, for example, the petitioning party need only establish that (1) paternity is not contested, (2) the parties are living apart, and (3) one or more children are living with the parent seeking support. If everything is in order, many courts will issue a temporary order, and it does not even matter whether the other parent shows up in court. How Support Awards Can Be EnforcedVirtually the most difficult part of the child support process is in enforcing the order, a detail Congress recognized when it set about to overhaul the child support system. As part of the 1984 Act, Congress required that states implement certain specific measures and undertake to establish and fund the programs that required federal participation. Still other measures were suggested but without a clear mandate that the states adopt them: • Income or wage assignments. If there is a support order in effect and payments have been delinquent for a period of time, and if the court believes it is necessary to ensure timely payments, it can order a wage assignment. The support money is deducted by the employer from the employee’s paycheck along with all other payroll deductions. Depending upon the court order, the money may be forwarded directly to the custodial parent. If for any reason this is unacceptable or unworkable, it can be sent by the employer to the court or to the state department of revenue, whatever the court decides. According to the 1984 Act, wage assignments can be applied to any type of “periodic income,” specifically including disability benefits, pension benefits, annuities, workers’ compensations, insurance proceeds, partnership profits or interest, dividends, or trust income. The important provision is that a stream of income be regular and periodic and that it be paid by someone who will be responsible and accountable for getting the money to the dependent children, the court, or the state department of revenue, whichever is ordered. • Direct wage withholding. One of the most effective methods of collecting child support related to wage assignments is through wage withholding. This is used in those cases in which child support payments are delinquent in an amount equal to one month of support. The law requires that the employer be notified and ordered to withhold the employee’s wages in accordance with a “provisional wage withholding order.” If the employer should fail to do so, it can be held responsible for the amounts that were not withheld. In fact, in some states employers are fined for failing to withhold wages in accordance with a proper order. This type of order can be used in several types of proceedings — including divorce, paternity, and separation — and is useful because it can be instituted in the shortest possible time frame. • W-4 reporting of new hires. While all states now have mechanisms for wage withholding, if an absent parent moves out of state, it is estimated to take between thirteen and twenty weeks for a withholding order to take effect with a new employer. During this time support is often not paid, and some delinquent parents simply move on to a new job once the order does catch up with them. In order to expedite the process of establishing new employment, some states have implemented a mechanism whereby new hires would indicate on their W-4 forms whether or not they have an outstanding child support obligation, the amount of the order, and the payee, in which case the withholding begins immediately. If an employee fails to report his support obligation, he is subject to a criminal penalty. • Tax refund intercept. In cases in which the person ordered to pay child support is an employee who has state and/or federal taxes withheld from his pay and a refund is generally due, it is possible to intercept either a state or federal refund. It is available to AFDC and non-AFDC parents. Although this process is not realistic against all delinquent parents (because of various procedural obstacles and eligibility requirements), it has proved to be valuable recourse for those custodial parents who are owed support and when delinquent parents meet the intercept requirements. • Attachment of property. If a delinquent parents owns real property (i.e., a home or real estate) or has a valuable asset (e.g., a car), it may be possible to “attach” the property (which means to “hold” it to secure the debt) and ultimately to have it taken and sold to pay the debt. This requires a court proceeding but is relatively straightforward as long as valuable and marketable assets can be found. • Liens on property. Similar to an attachment, alien can be placed on real or personal property, which prevents it from being sold until the lien is satisfied (and thereby discharged). These are useful in those cases in which wage assignment or withholding was not possible but the delinquent parent does have assets that can be found. • Trustee process. Like attachments, this requires that the custodial parent who is owed support be able to find property. In this case the property must be a bank account, stock brokerage account, or other liquid asset that is within the control of a third party (e.g., a bank). The actual procedure is similar to that of attachments and requires that a court order be secured after the account is located. As is also true of attachments, the process is more complicated if the asset is located out of state. Additional remedies that might be available, particularly against self-employed and professional deadbeats, include revocation of professional or occupational licenses or mandatory credit bureau reporting. Attachments and liens on property may be possible when a delinquent parent is self-employed and it is difficult to reach income in other ways. For the most part, these collection methods are similar or identical to those used to collect any debt. In fact, in recent years, a number of custodial parents who are owed substantial sums of money in uncollected support are turning to private collection agencies to try to obtain the money due. Although the same mechanisms are available through the appropriate state and federal agencies, some people find that private collection services are more effective in accomplishing the task. Interstate Enforcement of Child SupportAmong the most troublesome aspects of collecting child support today is trying to obtain and enforce a support order against a delinquent parent who has left the state. The law provides many uniform acts that are set forth as models to promote similar and consistent laws that affect people who are trying to engage in transactions across state lines. Although no state is obligated to adopt a uniform act, most states do so in some form (unless it is contrary to some important state policy). These acts generally contain provisions for cooperation and reciprocal enforcement so that if state A and state B pass similar statutes (as suggested by the uniform act), each is likely to provide the other with whatever assistance it may require to enforce its provisions when residents move from state A to state B or vice versa. The federal government has, through various programs, attempted to coordinate interstate support. In 1950, the Uniform Reciprocal Enforcement of Support Act (URESA) was created in order to assist a custodial parent in enforcing a child support award across state lines. Its primary purpose is to secure support payments for dependent children whose legally obligated parents have left the state that ordered they pay support. URESA provides, in general, that once an order of support is set initially by one state (the “initiating” state) and the parent moves to another state (the “responding” state), the responding state will not change the order but will enforce it in the same amount previously set by the initiating state. The major purpose of URESA is to prevent “forum shopping.” Under URESA, states are forbidden from entering a support order that supersedes or changes an order from a previous court. The one issue that either parent can contest, however, is whether the initiating court had the right to enter a judgment in the first place (i.e., whether the court had jurisdiction). If ultimately the determination is that the support order was rightfully created by the initiating court, the order is thereafter entitled to “full faith and credit,” meaning that the responding state is bound to accept and enforce it. It is also important to realize that a lawsuit brought under URESA only operates to enforce an existing child support order. All remedies under the act are in addition to whatever other remedies may be available under either state’s laws. URESA, therefore, does not create an order for support; it only provides another potential avenue for enforcing a support decree that has already been ordered. While URESA has gone a long way in helping interstate enforcement of existing support orders, there is at least one major problem that URESA has not been able to address: there is little coordinated networking for communication between states to keep track of cases once they are referred to another state. Most communication that does occur is between one local court and another. As a result, there is not a systematic procedure for keeping track of the large number of cases that come through. Recent federal legislation has attempted to remedy this problem, proposing that states establish interstate computerized databases and clearinghouses to record such information as the name, address, income, and support order of a delinquent parent. Ideally, each state would have a Registry of Support Orders to store an abstract of all case information, even though it would not be responsible for collection. Each state would register all incoming and outgoing requests for enforcement of child support from one state to another and would use and register such mechanisms for collection as wage withholding and other similar measures. The current law also requires states to make their wage assignment systems available for interstate support orders. Enforcement Of Last Resort: Contempt And Criminal Non-SupportIf civil collection methods are not effective in helping custodial parents of dependent children receive their child support, the custodial parent may be able to institute an action for civil or criminal contempt. Contempt is a separate proceeding (distinct from obtaining the original support action) and usually requires the services of an attorney. A defendant will be subpoenaed to go to court and will be given the opportunity to explain why the support is not being paid. Unless he has a good explanation, however (e.g., he has lost his job and has no income), he will be held in contempt. Technically, he can be held in contempt even if he does have an adequate explanation, because if he is unable to pay, his remedy is to go back to court and seek a modification of the decree, not simply to stop paying. In any event, even if the defendant is adjudged to be in contempt, he might be jailed or fined, but usually the collection remedies are only those that are already available to support recipients. Criminal nonsupport is a remedy of last resort, primarily because it results in the defendant’s having a criminal record and subjects him to criminal penalties. Under the Child Support Recovery Act of 1992, it is now a federal crime for a parent who lives in a state that is different from that of dependent children to willfully fail to pay child support. While it is estimated that currently at least 500,000 cases could be prosecuted based on these terms, without the judicial resources to do so, in many cases the result has simply been that the law has not improved the probability of collecting the delinquent payments. Yet under the right circumstances the criminal law has proven to be a very effective tool. If a parent has the ability to pay and simply refuses, the threat (or reality) of criminal prosecution may encourage payment where no other method has worked. Criminal laws vary from state to state, but criminal nonsupport generally requires (1) abandoning a minor child (or spouse) without making reasonable provisions for his or her support and (2) willfully failing to comply with an order of support rendered by a proper court for reasons other than inability to pay. The criminal penalty if a defendant is found guilty of nonsupport also varies from state to state. In some states it is a misdemeanor (i.e., a minor criminal violation); in others it is a felony (i.e., a serious criminal offense). Penalties can include fines and imprisonment or both. Many states impose harsher penalties in cases of interstate nonsupport where it appears that a defendant has fled a state specifically or primarily in order to evade a support obligation. Defendants in cases of criminal nonsupport can be arrested and extradited as child support delinquents. This means that state authorities take responsibility for apprehending and sending a defendant back to the state that ordered the support obligation. This is significant because defendants in civil cases can ignore summonses if they are out of the state, and it is virtually impossible to serve them across state lines. Without a summons, a defendant cannot be legally compelled to appear in court. This criminal procedure is typically used only as a last resort in those cases involving defendants with long histories of nonpayment who have the ability to pay and who have left the state and refuse to comply with a local order of support. Offenders can be listed in the National Crime Information Center (NCIC), which is a national register of individuals charged with a criminal offense. Child Custody Alternatives and Their Impact on the Payment of Support In recent years, domestic relations law has evolved considerably and a number of changes have occurred. First, the unofficial “maternal preference rule” and “tender years doctrine” were challenged. They were said to discriminate against men, and the courts agreed. At least in theory, courts must give both men and women a fair opportunity to make their bid for custody. Second, the assumption that most women stay at home and fathers earn most of the household income is no longer borne out by the evidence. Today women are regularly employed in the work force. Whether through necessity or because of a desire for a better standard of living, more than half of all mothers no longer assume the traditional role of homemaker. Third, the assumption that women are somehow more nurturing and better overall custodial parents, even of young children, has been challenged. Many men in the 1990s are more comfortable with the male image of devoting large blocks of time, even stalling careers, to participate more actively in the upbringing of their children. Some feel that traditional male roles have deprived them of showing their “mothering” qualities. Finally, with the collapse of the traditional fault-based divorce schemes, which required men to negotiate for the right to obtain a divorce, more men have challenged the courts’ universal habit of awarding sole custody to the mother. Many such challenges have been successful. The result of these changed conditions is that increasing numbers of men are seeking to become the primary custodians of their minor children when the decision to divorce is made. Of course, not all men are motivated by the strong desire to parent or even by the best interests of their children. Nevertheless, more and more are actively pursuing custody and forcing courts to take a hard look at what is best for the children. Forced to abandon their automatic preference for maternal custody and faced with serious challenges by fathers, courts confront difficult custody choices with little guidance as to what is best for the separating family. The evolution, however, has only come so far. Often with good reason, courts are skeptical when men seek sole custody of their children. They are sensitive as to whether their desire for custody is sincere or whether it is a ploy to gain financial concessions. It is not uncommon for women, in particular, to “give in” to custody blackmail and forego a more suitable financial settlement for themselves (and their children) when faced with the possibility of losing custody. Of course, women, too, have been known to extract concessions by using custody as a bargaining chip when they want to give up custody. Furthermore, some men (and women) are simply more willing to gamble with custody when that is the cost of cutting their best deal. In most cases women can still count on being favored for child custody when they want it. As a result, even when both parents are fit for the task, men still have to expect to compromise. Joint custody is often implemented under conditions that have many of the hallmarks of sole custody (e.g., the children live with the mother during the week and with the father on weekends). What is important is that parents are able to share in the amount of time spent with the children and retain shared control over the major decisions and obligations that affect their lives. For example, parents may both retain joint legal custody but have the children live with one parent, usually the mother. In some cases children may spend weekends and/or vacations with the father. In other cases the parents may alternate custody: children can spend blocks of days, weeks, or even months in one place and then transfer to the other place. The longer the time interval, however, usually the more disruptive it is for the children. In rare cases, children may actually spend half of the year in one place and half of the year in the other, especially if the parents are separated by a large distance and no other practical remedy is feasible. Many courts consider these arrangements highly disruptive for the children and even prefer no visitation to this type of arrangement. Still another possibility, and one that is rarely approved by the court, is separation of the children, with each parent assuming virtual sole custody of one or more children, with visitation to the noncustodial parent. Many courts require compelling reasons for separating the children because it is another disastrous separation for them that can have severe psychological consequences. Today most states have enacted some type of law that provides for joint child custody. Many courts seem to favor such an arrangement if it appears that the parties are willing to try to make it work. In particular, it requires that the divorcing couple be able to cooperate with each other in making decisions that affect the children and in implementing the mechanics of joint custody (e.g., transporting the children back and forth). There are numerous benefits to joint custody in those cases achieving a workable arrangement. For the courts, it relieves them of the burden of making difficult custody choices, which they are usually not equipped to address. All too often custody battles become a battle of the experts, each claiming that one parent is likely to be the better custodian but with little evidence to back up the claim. For parents, the long-range outcomes of joint custody have been somewhat better than sole custody arrangements, reducing the need for parents to return to court to enforce visitation and support awards. It also appears to affect the way that parents view their participation with the children after the divorce. In some cases it lessens the additional burden of care that falls on the custodial parent. In other cases it seems to diminish the likelihood that a noncustodial parent (usually the father) will not pay child support. In still other cases it seems to reduce the potentially damaging strain on the relationship between the noncustodial parent and children. In many cases, however, it is difficult to know what is best for the children. Only hindsight can determine for certain whether divorced parents, when relieved of the burden of the deteriorating marriage, will interact with each other and the children in a way that allows the children to maintain a stable relationship with both. Joint custody is not indicated when there is continuing conflict and hostility between the parents that is exacerbated by the interaction necessary to implement this arrangement. Yet the court has only the short time of the hearing to observe and evaluate each of the parents and to speculate about what would be best for the children. For this reason, divorcing couples are urged to negotiate their own custody arrangements. Joint custody, in particular, is rarely an optimum solution if both parties will not agree to it themselves. Guardian Ad LitemIn cases of contested custody, courts in most states including Utah can appoint a guardian ad litem (temporary guardian) to represent the interests of the minor children. A guardian may be an attorney whose function is to seek out information concerning the needs and welfare of the children and to report the findings to the court. A potential guardian can be suggested by either parent or the judge and is ultimately appointed by the court to represent the children during the divorce proceeding. Guardians perform a number of important functions. They talk to the children’s parents, teachers, caretakers, relatives, guidance counselors, physicians, psychologists, or anyone else who may have knowledge about what is best for the children. They talk to the children. They must be willing to make an impartial inquiry and act on behalf of the children. Ultimately, their function is to report back to the court (i.e., testify) on behalf of the children. One of parents’ greatest fears about divorce trials is that the children may be asked to testify. A guardian can ensure that the children do not get in the middle if the custody battle gets bitter. In virtually all cases, children will not testify in open court. If they are old enough to express a preference, the judge may ask them to speak in camera, i.e., the judge will take their “testimony” privately, in his chambers, and what is said remains confidential. Very young children are rarely questioned at all, both to spare them the trauma of having to choose between their parents, and because their preferences are not given much weight anyway. Sole Or Joint Custody?The relative merits of joint and sole child custody have been widely debated, and there is still much controversy about which is a better model and under what circumstances. Since the custody standard is always “the best interests of the children,” courts are forced to evaluate the merits of the various options. Of course, not all parents seek custody and there are few cases that reach trial with child custody still contested. But when they do, courts are faced with difficult choices, often ones they must base upon subjective considerations. Assuming that both parents’ desire for custody is sincere and not a tactic to coerce financial advantage, the court must consider, on a case-by-case basis, how joint or sole custody would operate for the particular family. It has been argued that sole custody provides a permanent and unconditional placement of children, which is an essential factor in healthy child development. Advocates of this position urge courts to seek out and consider all factors, psychological as well as physical, that affect the question of which parent would best look out for the interests of the children. However, after making such a determination of who that sole custodian should be, some experts recommend the placement should be immediate, permanent, and unconditional. All decisions concerning the children should then be made by that parent. He or she should decide how, and under what conditions, the children should be raised, even including visitation by the noncustodial parent. The reason for this unilateral decision making is that despite good intentions, too many parents are just not able to cooperate with one another, and never-ending conflicts arise when decisions need to be made concerning the children. Courts generally do not adopt such a radical position, particularly with respect to visitation. Recognizing the companionship rights of the absent parent, visitation is usually liberally granted to a noncustodial parent, primarily because it ensures an ongoing relationship with the child. As a practical matter, however, joint custody does sometimes create problems later on when inevitable changes occur. It is difficult for divorcing parents to predict what might happen in the future and what adjustments will need to be made. This is particularly difficult with joint custody. There is another school of thought that views joint or shared custody and the needs of the children differently. Its advocates argue that joint custody, in appropriate cases, more intimately involves both parents in the raising of their children and prevents the child’s sense of loss of the noncustodial parent. By alleviating some of the burden of care on the custodial parent, joint custody may result in a less stressful environment. Support payments are more regular, and typically not held hostage by a parent who is unable to visit with the children. Finally, joint custody may lead to a better sense of well-being because it may reduce the children’s sense of being abandoned by the noncustodial parent. How Is Custody Determined?When child custody is contested, the parties are always encouraged to reach an agreement between themselves since it has been consistently shown that both the divorcing couple and their children adjust better to the divorce and are less likely to return to court with complaints of custody violation. Regardless of what the court decides, it is inevitable that at least one party (and sometimes both) will be unhappy with the court’s decision and will be less willing to fulfill obligations to the children. In fact, bitter custody disputes outlive all other aspects of the divorce and no one ever really wins — certainly not the children. At the same time one of the greatest fears of a woman facing divorce is the possibility that she could lose custody of her children. It is the unusual case, however, where a mother seeking custody will not at least be given joint custody. Only if she has a severe mental, emotional, or personality disturbance; a drug or alcohol dependency; a history of child abuse or neglect or a pattern of severe, erratic behavior toward the children would she be likely to lose sole custody to her husband. Nevertheless, the court is bound to award custody in the best interest of the children and to consider seriously a father’s bid. In those cases that custody just cannot be agreed upon, either because the parents are simply unwilling to compromise or because they cannot work out an agreeable solution, the court will be forced to decide for them. The question of what, exactly, the court looks for is not entirely clear. It is required to determine “the best interests of the children” but nobody really knows, in a particular case, what the deciding factors may be. There are certain circumstances, however, that are likely to be studied. The court will inquire about the physical and mental health of each of the parties. In particular, it will want to know if there is anything that is likely to cause a future disruption in the custodial arrangement once it is ordered. In this regard it is usual for both parties to provide a psychological expert — one who has examined that person and will report on his or her fitness to be a custodial parent. Since the linchpin of the custody determination is the “best interests” of the children, it is often critical testimony for each party that they be able to prove reasonable parenting skills. In cases where actual fitness is an issue, the court will appoint its own psychiatric expert to evaluate the parties. The court will inquire about what major changes for the children would be required if sole or joint custody were awarded to either parent. How would present child care arrangements be disrupted? Is either parent planning to move away? Do the parents have the physical space for the children? And what type of plan would the custodial parent make for the children’s visitation with the noncustodial parent? Courts often believe that they can determine whether the motives of parents vying for custody are sincere on the basis of their willingness to make the children available for visitation with their other parent. If the children are old enough to express a preference, the court will usually allow them to do so in private. While there is no set cutoff for age, as mentioned earlier, very young children are usually not allowed to testify even if they choose to express an opinion. Finally, the court will look at the overall home environment that each parent is likely to maintain. Are step-families currently involved and is either parent planning remarriage? What will that mean to the well-being of these children? What has the past environment been like? Has each parent maintained a stable presence or has past behavior been erratic? In many cases the answers to these questions will help determine whether each parent’s desire for custody is sincere or whether the contest is being waged to gain some other concessions. What Factors Are Not ConsideredIn addition to all of the factors that the court will look at in making a custody determination, there are a number of issues that many parents, particularly mothers, become anxious about that usually will not affect the custody award. Among them are the fact that the primary caretaker up until that point will probably need to go back to work or has been working all along. The court will, of course, look at these factors, but generally it will not view in a negative light a woman’s need or desire to be employed outside the house, as long as she makes reasonable provisions for the children. Interestingly, what a court will look at is whether she makes time for the special needs of her children while she also works. Does she take time off when the children are sick or have an appointment with the doctor? Does she participate in the children’s recreational activities? Does she make their meals, shop for their clothing, and pay attention to their homework and schoolwork? The court usually will not be deterred from awarding custody to a woman who works as long as she actively cares for the children as well. Another factor that courts generally will not consider is the fact that one parent, usually the father, can provide more material advantages for the children. The fact that the father will live in a bigger home, a better neighborhood, or simply has more disposable income to provide for the children is usually not important. In fact, if the court finds that one parent has been using his superior financial status (e.g., buying expensive gifts) to entice the children to express a preference, it is more likely to find that this is manipulation rather than an indication of superior or even sincere parenting. Courts do not look favorably on adulterous relationships before the spouses are divorced, but they primarily look at how the relationship affects the children. If it is causing them confusion or distress, then obviously that factor will be viewed negatively. Courts recognize, however, the inevitability of new relationships and marriages after the divorce and they do not necessarily cast aspersions on such a parent. In fact, if evidence of adultery or even a boyfriend or girlfriend has already been presented, a parent seeking custody may try to demonstrate the stabilizing effect that it would have on the children. When Custody Can Be ChangedIn Utah, even after a child custody arrangement is agreed upon by the parties or ordered by the court, the court retains control (jurisdiction) over the case unless the children are lawfully removed from their residence to another state. The parties cannot agree to divest the court of its continuing control and either party can return to court at any time if the custody or support order is being violated or if a change in the order is warranted. As a result, even parents who are awarded custody often live under a continuing threat that the children might be taken away from them. But only rarely does it happen. Changes in custody (or support orders, for that matter) can only be sought when a clear change of circumstances can be proved. In most states including Utah this requires that a new proceeding be initiated and it is usually costly since lawyers must once again get involved and start afresh. Court actions for modification are different from return visits to court to enforce an existing order. If a sole custodian refuses, for example, to adhere to the visitation schedule, the remedy is to go to court to enforce the order, not to modify it. If, however, there are repeated offenses by one parent, a modification of the original decree may be indicated. What will the court do if it appears that joint custody is not working? With an action for modification the court is required to review the circumstances anew, particularly in light of why the arrangement is not working. If either parent is clearly at fault, that parent is at greater risk for losing custody at that point. What happens more often is that the circumstances of joint custody, which appeared workable at the time of the order, are no longer satisfactory. Often when children get older, they object more to moving back and forth or living in two different places. At other times one or both parents has had to move. And sometimes the arrangement was simply ill advised and did not work from the start. If the court is satisfied that its original custody order is not in the best interests of the children, the parties will once again be encouraged to reach their own agreement or the court will impose its judgment on them. There are no easy answers, and they become tougher the second time around. Tooele Utah Divorce Lawyer Free ConsultationWhen you need to get divorced in Tooele Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help with Divorce, Child Support, Child Custody, Prenups, Postnups, Alimony, Modifications to Divorce Decrees and More. We want to help you.
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