<![CDATA[Atticus Legal Group, LLC - Common Questions]]>Sat, 15 Jul 2017 01:18:55 -0600Weebly<![CDATA[​Emancipation – Can it happen and why?]]>Fri, 14 Jul 2017 18:15:31 GMThttp://www.atticuslegalgroup.com/common-questions/emancipation-can-it-happen-and-whyMost teenagers hit a point in their lives when they want to be emancipated from their parents.  Usually this comes at a time when they are tired of living with Mom’s and Dad’s rules.  They think emancipation will solve all their problems.
 
If you are reading this article, you are likely either a parent with a minor who wishes to be emancipated, or a minor wishing to be emancipated.  Regardless of your status in this situation, emancipation is not a procedure to be taken lightly.
 
Children do not realize that being on their own and being responsible for their own choices can bring problems of a different sort.  If your teenager is considering emancipation, here are some things to ponder first:
Utah has an Emancipation of a Minor Act.  The purpose of this act has been explained as follows:
 
“to provide a means by which a minor who has demonstrated the ability and capacity to manage his or her own affairs and to live independent of his or her parents or guardian, may obtain the legal status of an emancipated person with the power to enter into valid legal contracts.” (Utah Code 78A-6-801)
 
Sounds good, right?  But there are some caveats to this.
 
First, the minor must be 16 years of age or older in order to petition the juvenile court for emancipation.  Minors younger than this are not eligible for emancipation.  The minor must be able to live independently and manage his or her financial affairs.  This is not something many teenagers are capable of doing. (See Utah Code 78A-6-803)
 
Second, the court will consider the best interests of the minor in deciding whether to grant emancipation or not.  The court will be looking at factors such as: “(a) whether the minor is capable of assuming adult responsibilities; (b) whether the minor is capable of living independently of his or her parents, guardian, or custodian; (c) opinions and recommendations from the guardian ad litem, parents, guardian, or custodian, and any other evidence; and (d)
whether emancipation will create a risk of harm to the minor.” (Utah Code 78A-6-804)
 
This is not just a matter of a teenager wanting to live without rules.  Emancipation must be in the best interest of the minor, meaning it would be better for the minor to be living independently than to be living with a parent or guardian.  It does not often happen that a minor is benefitted by living independently, though it can happen.  The focus here is on the fact that a minor can’t just choose to be emancipated.  It can only happen by a judicial order, which will only happen if the court believes emancipation would be in the minor’s best interest.
 
Looking more closely at the requirements for emancipation, how does a minor demonstrate the ability to live independently and to manage his or her own financial affairs?  First of all, the minor must have the capability of financially supporting himself or herself.  Most minors cannot do this, unless they have inherited a trust fund or other large sum of money or they have a very high-paying job.  In addition, it would be helpful if the minor has experience managing finances and making financial decisions.  If the minor has ever lived independently or managed his or her affairs before, the court would consider this information.
 
Marriage or registration with the military are other ways a minor can demonstrate an ability to live independently and manage his or her own affairs.  Emancipation happens automatically upon marriage or military registration, though a minor wishing to marry must still obtain parental permission.
 
Third, consider some of the activities an emancipated minor may take part in: entering into contracts, buying and selling property, suing (or being sued), and borrowing money.  (See Utah Code 78A-6-805.)  These are serious responsibilities with serious consequences.  Are these activities you believe your teenager is ready for?  Would you feel confident in your teen’s ability to understand the ramifications of taking out a loan or purchasing a vehicle?  There must be a certain level of maturity possessed by the minor which will allow the minor to assume the roles and responsibilities of an adult.
 
Fourth, even if a minor is emancipated, the minor is not considered an "adult" with the same rights and privileges in all situations.  There are some circumstances when an emancipated minor may not be considered an adult.  These include select criminal laws (when certain conditions are met), when the minor is a victim of a crime and the victim’s age is an element of the crime, and when there are statutory age requirements for rights like “voting, use of alcoholic beverages, possession of tobacco or firearms, and other health and safety regulations relevant to the minor because of the minor's age.”  (See Utah Code 78A-6-805.2.)  Emancipation does not overcome the age requirements for these statutes, and a minor will still be subject to these restrictions.
 
When would emancipation be appropriate?  There are legitimate times when emancipation might be the best option.  In situations where a minor is being abused at home or when home life is extraordinarily traumatic to the minor, emancipation may be appropriate.  In addition, in some situations where a minor has inherited a trust fund and does not want a third party managing the money, this may also be an appropriate situation for the minor child to be emancipated.
 
There also may be times when a parent might wish for their minor to be emancipated.  In situations of child support for a minor because of a parental divorce, the parent paying child support may wish to have the minor emancipated in order to end the child support payments.  Parental financial support is not required for emancipated minors.  A parent may also wish to no longer be liable for the acts of the minor.  Once emancipated, a minor becomes responsible for his/her own actions.  Utah Code 78A-6-805.3 states as follows: “An order of emancipation prospectively terminates parental responsibilities that accrue based on the minor's status as a minor under the custody and control of a parent, guardian, or custodian, including parental tort liability for the acts of the minor.”  While this may be a reason for a parent to wish for emancipation of a child, that parent must remember that the court will be looking at the best interests of the minor, and emancipation to terminate child support payments will most likely not be in the minor child's best interests.
 
Being an adult may seem attractive to a minor, but young adults nowadays are heard complaining that “adulting” isn’t as much fun as they thought it would be or that it’s too hard.  Minors tend to glamorize what it means to be an adult, focusing only on the benefits, but not the responsibilities.  If your teen is contemplating emancipation, counsel with and advise him or her on what it means to be an adult.  This is not a decision to be taken lightly.
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<![CDATA[WHAT TO DO WHEN YOU ARE GOING THROUGH A DIVORCE]]>Mon, 26 Jun 2017 23:47:34 GMThttp://www.atticuslegalgroup.com/common-questions/what-to-do-when-you-are-going-through-a-divorceGoing through a divorce is an emotional roller coaster.  There are many new challenges, and it can be difficult to know how to get through them and what to do.  Your attorney can and should advise you based on your individual needs, but here are a few general suggestions that can help you navigate your way through this turbulent time.

1.  Change your passwords for e-mail and social media.  This is the most important thing you can do when your case begins.  If your spouse is reading your e-mails because they have access to your e-mail, it will likely be too late when you finally discover the issue.  If your spouse is sending e-mails from your account to him/herself, to members of their family, neighbors, etc., it will be difficult, if not impossible, to prove they did not actually come from you.  For obvious reasons, if your spouse is messaging somebody as though they were you, it’s not going to help your divorce.
Even if you don’t think you have logged into a spouse’s IPAD, why risk discovering the mistake later?  Change your passwords now. 

Even more importantly, you may be communicating with your attorney via e-mail.  This is confidential communication, and you do not want anyone else having access to this.  If you suspect that your spouse may continue to have access to your accounts even after you have changed passwords, you may want to consider setting up new e-mail and social media accounts.  Keeping your long-term e-mail is just not worth the risk of disclosing privileged information.

2.  Call around for an attorney.  You may want to ask friends or family for referrals.  Find an attorney you can afford and one with which you feel comfortable.  You need to be open and honest about the good and the bad of your case. 

It can also be a good idea to find an attorney who practices primarily in family law, as family law has some different procedures than other types of law.  There is nothing that makes our office smile more than when an attorney files a “Notice to Submit” on their motion, claiming the deadlines have passed (deadlines work differently in family law).

3.  Save any communication from your spouse.  If you have e-mails or texts from your spouse, you must save them.  Save them whether they are helpful for your case or not.  Save them as far back as you can.  With texts, this can be done by taking a screen shot of your texts and saving them to another drive.  Do this quickly, because if your phone breaks, dies, or gets lost, you need a back-up (you may not think this will happen to you, but it only takes one mistake to ruin the next twenty years of your life, so why risk it?). 
If you can’t produce a record of the communication, it doesn’t exist.

Perhaps even more importantly, saving your messages can protect you in years to come.  If, twelve months from now, your spouse claims you agreed to pay her $20,000 a year later, it would be helpful to pull out the messages and ask, “When did this happen?  I don’t see any agreement.”  Not only will it disprove your spouse’s statements, but it lends credibility to yourself.

Even if you sent inappropriate messages, it is better to know what those messages said, than to just know you mistakenly sent messages.  Remember, information is power, even if it’s not your proudest moment.

4.  Choose to take the high road.  It can be so tempting to lash out and fight back when your spouse engages in nasty behavior, but it is not worth it.  How well your side of the case fares may depend on your own personal behavior.  It won’t matter how nasty your spouse has been if you even been a little nasty in return.

This can be a serious issue.  If your spouse is constantly swearing at you, disparaging you, involving the children, etc., you should have a strong case.  That can all fall apart because you sent one text message stating, “Oh yeah?!  Well I showed these messages to our daughter and she’s sure mad at you!” Even if it’s not true, the court treats it as though it is.  Even if you respond with “F--- you!” in a fit of anger, the court will respond by saying, “Both parties have behaved inappropriately and should stop.”

When your spouse is inappropriate to you, it helps your case legally.  Don’t ruin all that good evidence by responding in kind.

5.  If you have children, do not involve them in the dispute.  It never helps your case.  It only harms it.  The court doesn’t like to hear that your eight-year-old child wants to live with you if it means you brought the subject up.  It’s okay for a child to voice their wishes, but why does the child even know there is an issue?  Leave them out of it.  Even more importantly, your children are innocent in this matter, and they do not need to be dragged into the mud.  They do not need to feel like they have to choose sides.  Whenever possible, leave the children out of the dispute between you and your spouse. 

If there is ever a question as to whether you should be asking or telling your child something, it may help to ask yourself whether you would feel it is appropriate for your spouse to ask the question.  If you didn’t know what he/she was asking, would you be comfortable with relying on your child’s answer?  If your spouse stated your child told him of the child’s desires, would you think it was appropriate?  You wouldn’t want your spouse to play games using your children, so you shouldn’t do it, either.

6.  Stay calm and follow the advice of your attorney.  Your attorney’s advice is designed to help you.  Your attorney knows the law and has your best interest in mind.  Don’t go rogue and take matters into your own hands.  Listen to your attorney and follow the advice you are given.

If there’s ever a question as to what action is in your best interests, wait for your attorney to provide advice.  It is rare that an issue will have such immediate importance that a resolution must occur within a few hours (if you waited until the last minute to involve your attorney, there will, of course, be consequences).  Give your attorney time to respond, and follow the advice.

7.  Keep your private matters private.  Do not air your dirty laundry in public.  Do not list your grievances on social media in an effort to garner support.  The world does not need to know the details of your divorce proceeding or every fault you believe your spouse possesses.  It’s fine to have a few select family members or friends to whom you go for support, but personal matters such as a divorce are better being kept private.
We do not give this advice for “moral” reasons.  It’s none of our business.  But legally?  Anything you say can and will be used against you.  Your Facebook posts cannot be used for you, but they sure can be used against you.  Why provide the world with information to be used against you?

On the same note, if your spouse is posting dirty laundry on social media, this can only help you legally.  Just as it can only harm you to post information on social media, it can only harm your spouse, as well.  Before jumping to court, ask your spouse to stop his/her actions (the court doesn’t like tattle-tales, either), and then consult with your attorney regarding the appropriate next steps.

8.  Start gathering the information your attorney will need.  This will include bank statements, federal and state income tax returns, records for any debts, records for ownership of vehicles or real property, information on earnings (you and your spouse), and retirement accounts.

You may never need some, or any, of these records while going through a divorce, but it can’t hurt your case to have them.  Information can only help your case.  Take the time now to compile these documents, so you have the information later.

9.  Be realistic about your expectations.  You are not going to get everything you want in your divorce.  Divorces never work that way.  Compromises will be necessary so that both parties can be happy.  Be prepared to give and take on different issues so that your divorce does not become overly expensive or time-consuming.

10.  Be honest with your attorney Throughout this article, we have mentioned moments when it is better to be honest than to look good (save text messages, be polite in communications, etc.).  This is especially true when communicating with your attorney.

Family law attorneys have seen everything.  There is very little you could say that will result in us “judging” you.  We have worked with affairs, domestic violence, and more.  We may not (and should not) avoid all consequences for your actions, but the consequences of lying to us are almost certainly more severe. We cannot protect you if we don’t know what to expect.  For example, marijuana is an illegal drug, but it’s not the worst thing you could take.  If you tell us you have never taken an illegal drug, and then test “positive” on a drug test because we were adamant in court that you were clean, you are in far more trouble than if you had been honest in the first place (to start, the attorney wouldn’t be adamant you were clean, we would simply redirect attention to more important matters).  Tell us the truth, and let us protect you with the correct information.  Lying may seem like a temporary solution, but it will bite you in the end.  
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<![CDATA[A 14-year-old's preference]]>Thu, 08 Jun 2017 17:21:53 GMThttp://www.atticuslegalgroup.com/common-questions/a-14-year-olds-preferenceIn a custody dispute, or parent-time action, can a 14-year-old minor child choose which parent to live or exercise parent-time with?
 
In the State of Utah, the answer is no.  There is no Utah statute which allows a minor, at any age, to choose which parent he wants to live with, or whether he or she will exercise parent-time with the other parent.  There is a misperception being perpetuated that when a child reaches the age of 14, that child will be able to decide with whom he wants to live or whether he wishes to exercise parent-time.  Many parents use this as an argument to change custody or refuse parent-time, saying that their child just turned 14 years of age, shouldn’t they get to choose whether they exercise parent-time?
 
When a parent allows a child to remain home regardless of an order requires the child to exercise parent-time with the other parent, they may find themselves before the court on an Order to Show Cause (a contempt action).  Not only is the parent likely going to be held in contempt, she can expect to pay the other party's attorney fees for bringing the matter to court.
 
So where did the "14-year-old" misunderstanding begin?  Many people coming into our office have been told this at some point.  We're not sure where the confusion initially started, but it may be a misunderstanding of case law.
The Utah statute which may be the basis for this misconception says, in part:
 
The court may inquire of a child and take into consideration the child's desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child's custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.
 
Utah Code § 30-3-10(1)(e)

 
This statute states that the child’s desires regarding a custody award may be taken into consideration by the court, but the child’s desire is not controlling. 
 
If there is a current order, the child must follow it.  The parent will be held in contempt if the child does not follow it. 
 
Please note, there is a common argument that if a child over the age of 14 doesn't want to exercise parent-time with "Parent A," Parent B can't be forced to move the child.  It's arguable that the child is too big or strong to force him or her to the other parent.  This argument is inadequate.  If that child wished to go to a friend's house for drugs, most parents would find ways to stop it (whether as small as "grounding" the child, restricting privileges, or taking a cell phones, to the extremes of calling the police). The court expects each parent to take parent-time just as seriously.
 
For custody battles, the age of 14 is mentioned as the age at which a child’s desires may be given added weight, but even then, the child’s desires are not the controlling factor.  The court takes many other factors into consideration, always with the best interests of the child in mind.  These additional factors for consideration can be found in Utah Code §§ 30-3-10(1)(a) and U.C.A. 30-3-10.2.
 
Interestingly, a child's preference at any age can be considered by the court, assuming the child is at a sufficient age to legitimately have a preference (i.e., a three-year-old's "preference" is never considered, but a 12-year-old's preference would be).
 
Just as a 14-year-old's preference is explicitly given "added" weight, a 17-year-old's preference would be given even more weight.  The older a child gets, the more weight his/her preferences have.  These preferences are never the sole factor (and never a reason to modify a custody arrangement alone).
 
The case of Cummings v. Cummings (821 P.2d 472, Utah App. 1991) presents an example of when a child’s desires were given only minor consideration in relation to other factors.  During the trial court phase of the custody question, the judge spoke in chambers with the then-11-year-old child, who stated that he preferred to live with his father.  The trial court ruled that custody of the two minor children of the parties should be given to the father.  On appeal, the appellate court found that too much weight had been given to the 11-year-old child’s preferences, and that the prior custody arrangement with the mother had a long and successful history.  The appellate court reversed the trial court’s decision and awarded custody back to the mother.  While the appellate court acknowledged the 11-year-old's preference should be weighed, it wasn't sufficient for a change of custody.
 
In the case of Bake v. Bake (772 P.2d 461, Utah App. 1989), the desires of the children involved were considered and followed, given other factors which indicated that the desires of the children would be consistent with their best interest.  After the initial custody arrangement with the children’s father changed because of a move to another city, the children expressed a desire to return to their former residential city and live with their mother.  The trial court granted this change in custody, feeling that it would be best for the children to return to the life they had known and in which they were happier.  The appellate court affirmed this decision.
 
The input and desires of minor children are not controlling factors in custody arrangements, even when the age of 14 has been reached.  When a child turns the age of 18 and is a legal adult, he or she can choose whether he wishes to exercise parent-time with the other parent (and how much).
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<![CDATA[Separate v. Marital Property: What happens during divorce?]]>Mon, 30 Mar 2015 17:17:39 GMThttp://www.atticuslegalgroup.com/common-questions/separate-v-marital-property-what-happens-during-divorceWhen going through a divorce, you and your spouse may have property that must be divided.  Before deciding how your property should be divided, you must determine what property should be divided.  In doing this, you should know the difference between separate and marital property.


Separate property is generally property acquired by a party prior to the marriage.  Marital property is property that is acquired throughout the course of a marriage.  While these distinctions seem clear enough, problems arise when separate property is co-mingled with marital property throughout the course of a marriage such that it becomes unclear what each party is entitled to after a divorce.
There are different ways the courts have dealt with these problems, and we go to case law for examples.
 
In Goggin v. Goggin, the court decided that although property acquired during the marriage is generally considered marital property and requires a 50/50 split at the time of a divorce, it is important for courts to consider whether “each party [should] recover the separate property brought into or received during the marriage.”57  So although the property in the case was considered marital property, the divorce court should consider whether one or both of the parties is entitled to a credit or setoff for the separate property she/he contributed to it.  

(See Goggin v. Goggin, 2013 UT 16, ¶ 58, 299 P.3d 1079, 1096-97).

In Clarke v. Clarke, the court awarded a Wife 100% of the home equity--some of which was arguably marital equity.  However, the court was not simply dividing marital property but was also reimbursing Wife’s separate, nonmarital property.  She did not receive the home equity outright; rather it divided the home equity equally between Husband and Wife as marital property and then awarded Husband's share of the equity to Wife to reimburse her for the nonmarital inheritance she had used to pay off the premarital debt on Husband's vehicles. The court explained that it used Husband's share of the home equity to repay Wife her inheritance monies because it was a simple resolution that would result in “the least continuing connection as possible” between Husband and Wife, who were embroiled in a highly contentious divorce.

(See Clarke v. Clarke, 2012 UT App 328, ¶ 12, 292 P.3d 76, 81).
 
While the court will often times decide the marital property has been commingled, the court has the option to and should consider whether an "offset" of one party’s separate, contributed funds is equitable.  However, there is another side to the argument.  
 
In Thomson v. Thomsona husband contributed premarital funds into a marital residence.  The premarital funds came from a home in California, which the court later found the wife had an interest in because of "community property" (so when the "premarital" funds were contributed, they were not necessarily premarital), and the court found that the funds were commingled to the extent that the entire property was marital and a 50/50 division was appropriate.  
 
This case means that the court can decide to split property 50/50 even if some of the funds were originally separate property contributed by one party.  
 
Knowing how a court will go about deciding your case depends greatly on the facts of your situation and the arguments made during court.  If you have further questions regarding the division of property and the distinctions between cases as they relate to your situation, feel free to contact us at 801-784-0529. 
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<![CDATA[Taxes and Divorce]]>Tue, 03 Mar 2015 17:57:15 GMThttp://www.atticuslegalgroup.com/common-questions/taxes-and-divorce           Many issues are covered when getting divorced or once you are divorced, one that people often forget about or don’t put much thought into is how to file taxes during a divorce action, or what to do after a divorce is final. 

            When you are married you have various options as to how to file your taxes each year.  The purpose of this blog is not to tell you how to file, or the benefits of each type of filing, but more what “can” you do, or what are you allowed to do.

            Until there is a order from the court as to how the parties are to file for taxes, you are free to file just as you did while you were married. Each marriage has its own way of dealing with finances including how they file for taxes, and you may continue to do so while a divorce is pending. 

            Now clearly during the pendency of a divorce, the parties often cannot get along to make any decisions, it has been my experience that usually parties can agree to hand the taxes over to a professional to have them completed. I usually recommend that the tax professional prepare the returns each way possible and that the couple should file them in whatever way will achieve the greatest overall tax benefit to both parties.

            While this is how I recommend it be completed it does not need to be done this way.  Filing taxes each year is each person’s individual obligation to get completed, and no one, not your spouse, your tax professional, your attorney or even the Judge can “make” you file a joint return with your spouse.

            Filing taxes is a federal obligation, and how you decide to file them is based on your personal financial situation. As it is a federal obligation, the state courts do not technically have the authority to require you to file a joint return.

            Once you have a Decree of Divorce, it should include how you will deal with ongoing taxes and who gets to claim the minor children. It is common to share equally the tax benefits for the children. If there are an uneven number of children, usually the parties will flip flop who receives the greater number of children on their taxes. For example if there are three children, one party will get to claim two children one year, and then only one the following year.

            Additionally Utah law provides that the court may not award a tax exemption for minor children if that party is not current on their child support obligations.  It would behoove you to include this in your Decree as well so there is no question as to how it will apply.

            Lastly, many parties include a “buy-out” provision which says that if one party would receive a greater benefit than the other in claiming the child(ren) they may pay the other party what they would have received from claiming the child(ren) and then claim them on their taxes. But this is not automatic, you need to include it in your Decree if you want this option.

 

 

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