Saturday, 31 March 2018

Legal Representation is Important to Winning Child Custody

Given that many Salt Lake City, Utah, residents have limited knowledge of and experience in family law, individuals facing the prospect of divorce are always advised to seek legal counsel. And in cases involving child custody arrangements it is especially important for parents to learn their legal rights and options to ensure that the agreement is fair and appropriate. This is why you should always talk to your divorce lawyer when situations come up. Because there is evidence that the results of a child custody dispute can depend greatly on whether or not both parties have legal representation, many attorneys and rights advocates are working to ensure that more people have access to counsel in civil cases.

Everything from restraining orders to child support payments are addressed in the family court system and thousands of cases are handled by the courts each year. In 2006, the American Bar Association took efforts to guarantee that legal representation was available to low income individuals in civil cases, recognizing that the outcome of such cases often depends on whether or not both parties receive legal support. According to one study, individuals that chose to represent themselves in child custody disputes were less likely to win, and joint custody rulings were less likely to be granted in cases where only one party had representation.

In cases where an individual does represent themselves, the judge may attempt to guide the person through the legal process, but cannot go so far as to provide biased assistance. Using California has an example, having legal representation on both sides of family court cases only occurs around 25 percent of the time, leaving many at a disadvantage. That is why state legislators and advocates are pushing to create a system where qualifying individuals can be paired with attorneys to handle their civil cases.

Legal Representation is Important to Winning Child Custody

EXAMINING DIVORCE STATISTICS IN UTAH

According to the Utah Department of health, there were 10,146 divorces across the state in 2010. During the same year, the divorce rate in the state was 3.7 for every 1,000 people. In 2009, Utah’s divorce rate was 3.6 per 1,000 people, compared to the U.S. divorce rate of 3.4. Over the course of 2010, more than 3,900 marriages were dissolved in Salt Lake County alone. In Salt Lake City, and throughout Utah, divorce is very stressful for many couples and it is critical for people who are going through this to focus on avoiding complications.

On the Centers for Disease Control and Prevention’s site, additional statistics regarding divorce in Utah and across the country are provided. In 2014 and 2013, the divorce rate in Utah was 3.1 per 1,000 population. 2012 saw a divorce rate of 3.3, while the state’s divorce rate in 2011 was 3.7. In previous years, the divorce rate was significantly higher (5.1 in 1990). However, divorce is still very prevalent in Utah and across the entire country. In Wyoming, for example, the rate of divorce in 2014 was 4.6 for every 1,000 people.

The number of divorces which occur will change from year to year, but divorce remains a highly emotional and stressful issue for many people. As a result, it is essential for couples to understand their options and outline the smartest course of action. For some, this may include turning to a mediator, while others may want to assess the financial ramifications of splitting up with their spouse. Regardless of the individual details pertaining to a case, thoroughly preparing for divorce is crucial and can prevent complications from arising.

Free Consultation with Divorce Lawyer in Utah

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Common Law Marriage

Probably any family law attorney or divorce lawyer in Utah will tell you: there is no such thing as a common law marriage in Utah. There is a such a thing as a marriage like relationship in Utah. You have to go to court to get this done. You need evidence that you have held yourselves out as a married couple. Call us to talk about how it’s done.

Common Law Marriage

Unsealed Court Records Reveal Insights

The high-profile case of death-row inmate Ron Lafferty just got cracked wide open, with records and court documents from the trial now available to the public thanks to a federal judge’s ruling.  The article in the Deseret News explains why case details, professional opinions and psychiatric evaluations were originally sealed and why opening these records to the public helps to keep our judicial system transparent.

Last fall, several local media filed a petition to unseal the records that would open dozens of documents to the public and lawyers in Utah alike. The federal judge in the current case agreed to unseal the records because he believes that Lafferty is indeed of sound mind and does not suffer from a mental illness “that impedes his ability to communicate and help his lawyers in Utah prepare his case. ” Many of the documents contain medical and psychiatric opinions about the condemned criminal’s mental health and legal arguments over whether he was fit to stand trial and competent to move ahead with a federal review of his case. Sixty-nine documents and 17 formerly secret docket entries have been sprung wide for all to see.

Salt Lake City media attorneys argue that access to the records and documents  promotes accountability and confidence in the judicial process – ideals that are integral to a working justice system in the US, especially in cases such as Lafferty’s, where the penalty is death. With such high stakes, it is imperative that these decisions and rulings not be held in a vacuum of closed courtrooms and secret meetings between privileged judges and lawyers in Utah.

The petition to open the records was filed last October on behalf of the Deseret News, KSL-TV, the Salt Lake Tribune and the Utah Headliners chapter of the Society of Professional Journalists. The records had been sealed in 2009 at Lafferty’s attorneys’ request when questions about their client’s mental competency began. The attorneys argued that they shouldn’t be forced to disclosed attorney-client information and that Lafferty’s privacy concerning his mental health should be respected. At the time, the judge agreed to seal the records. Salt Lake City media attorney Jeff Hunt didn’t necessarily agree with the move, noting that closing the court records as a default position runs contrary to the First Amendment, which assumes that court proceedings will be open to the public. Lawyers in Utah may claim attorney-client privilege, but the proceedings brought out in a courtroom don’t necessary fall under that designation.  In a case where the defendant’s life is at stake, Hunt saw opening the records as a way to promote responsible decision making. He also said that it would hold the judicial system accountable for its proceedings – a very American ideal, indeed.

Lawyers in Utah look on as this case and its records can now be unpacked by the media, your next door neighbor, and anyone else who wants to weigh in – and most everyone wants to. The case itself is one of extreme notoriety. Claiming that they were directed by God, Lafferty and his brother have been found to have been responsible for the deaths of their sister-in-law and her fifteen-month old daughter in 1984 by slashing their throats. Having exhausted his appeals in state court, Lafferty and his attorneys will prepare for a federal review.

Free Consultation with Divorce Lawyer in Utah

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Friday, 30 March 2018

FLP vs LLC

At Ascent Law LLC, we know that you work your entire life to protect what is yours and not allow it to be destroyed by some predator, so we want you to understand your options. Compared to the FLP, the LLC is the relative newcomer to the field. LLC’s began in the 1970’s in Utah. They create a corporate structure, and give the benefits of a corporation without the downside of double taxation. Prior to the LLC this was accomplished by using an S-Corporation; however, S-Corps have significant restrictions and are therefore difficult to use. With the introduction of the LLC came a true hybrid with essentially all of the benefits of the Corporation and none of the S-Corp restrictions or double taxation downside.

FLP vs LLC

The LLC has the exact same tax options as the FLP. The LLC does not use the term shareholders, but rather “members.” In the standard LLC structure there is only one class of member. This was meant to mirror the corporate stock ownership and creates a majority rule type of management. While this can be changed through careful drafting, it is this distinction that becomes important when comparing it to the Limited Partnership for use in Asset Protection Planning.

Asset Protection and Business Planning

There is much confusion today about which structure is most desirable when it comes to the area of Asset Protection. While both are useful, their differences should not be overlooked. In particular, there is a distinct advantage to the Limited Partnership structure when it comes to designing a truly effective Asset Protection Plan. For example under the laws of Utah, a model state and considered one of the very best jurisdictions for the purpose of Asset Protection, there are the following critical differences between an FLP and an LLC:

  1. An FLP requires “unanimous consent” for dissolution as opposed to a majority in interest (51%) for an LLC. This restriction is advantageous in both a creditor situation and a discount valuation scenario.
  2. It is much easier to obtain “Administrative Dissolution” in an LLC. This is a significant disadvantage with respect to Asset Protection. Among the grounds for administrative dissolution in an LLC are:
    1. Failure to make required amendments to the articles of organization,
    2. Failure to make required publication,
    3. No statutory agent or registered office for a period of 60 days and
    4. Failure to notify the corporation commission of a change in statutory agent or registered office within 60 days.

While these seem minor, they are often overlooked and may be used by a judge to justify dissolving an LLC. There is no corresponding statute for an FLP, which is much more likely to remain intact in a creditor crisis.

  1. A majority of LLC members can require a distribution in an LLC.
  2. There is no right to distribution in an FLP until winding up.
  3. An FLP can allocate income, gain, loss, deductions or credit items in any manner it deems appropriate. This is not the case for an LLC.

For all of the above reasons, when it comes to structuring the most effective Asset Protection Plan possible, the use of an FLP as the primary consolidating entity is preferable. This is particularly true if the planning combines the use of an Asset Protection Trust. Since the APT would typically hold a majority of the FLP interest, using a Limited Partnership share is ideal as opposed to attempting to draft around the LLC rules with a membership interest.

The LLC is, nevertheless, extremely useful. Most often an LLC will be used to hold and shield individual “risky” assets such as real estate, boats, airplanes, and other potentially liability generating assets. These may be held by a multi or single member LLC, which in turn may be held by the master FLP. The clients may directly hold the General Partnership interest of the FLP with the APT serving as the majority Limited Partner. The net effect is that the majority of the client’s assets would be ultimately held in the FLP with the wrap around protection of the APT.

This structure is the ultimate in ease of use, protection and lawsuit deterrence, while maintaining the level of comfort and control most clients require. The mere existence of this level of planning is often enough of a deterrent to dissuaded potential plaintiffs’ and their aggressive attorneys.

Free Initial Consultation with a Business and Asset Protection Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Thursday, 29 March 2018

How Far Back Can Child Support Go?

As a Child Support Lawyer, I’ve been asked before – How far back can I get child support? It’s a good and a complicated question.

  • How far back can child support go in Utah?
  • I didn’t even know about this baby, and now, 10 years later she is going for child support all the way back to birth.  Can she do that?
  • In Utah, is there a certain age where, if you haven’t already applied for child support, you can’t get back support?
  • Is there a statute of limitations on child support in Utah?

The key to answering all of these questions is PATERNITY.  Whether or not paternity has been established is the primary factor in determining how far back child support can go in Utah.  The secondary factor in determining how far back child support will go is whether you request child support through the child support enforcement agency or file a Complaint (or Motion) in court.

An action to determine the existence or nonexistence of the father and child relationship (paternity, or parentage) may not be brought later that five years after the child reaches the age of 18. That means that in Utah paternity can be established up until the age of 23.

How Far Back Can Child Support Go

What does paternity have to do with back (retroactive) child support?  In Utah, Paternity MUST be established before a court or a child support enforcement agency can make a child support order.  In addition, in Utah, a child support order can ONLY BE retroactive if made in conjunction with a determination of paternity.

 

  1.  Who can file an action to establish paternity in Utah?

The following people can bring an action for paternity:

  • the child or the child’s personal representative
  • the child’s mother or her personal representative
  • a man alleged or alleging himself to be the child’s father or his personal representative
  • the child support enforcement agency of the county in which the child resides IF the child’s mother, father, or alleged father is a recipient of public assistance or of services under Title IV-D of the “Social Security Act,” 88 Stat. 2351 (1975), 42 U.S.C.A. 651, as amended.  Public assistance, as used in this statute, means:
  • Medicaid
  • Utah works first
  • Disability financial assistance
  1.  Once paternity is established, how does a court decide whether or not to order retroactive child support?  

A court should not order retroactive child support if both of the following apply:

  • At the time of the initial filing of the paternity or parentage action the child was over three years of age.
  • Prior to the initial filing of the paternity or parentage action, the alleged father had no knowledge and had no reason to have knowledge of his alleged paternity of the child.  (the mother of the child may establish that the alleged father had or should have had knowledge of the paternity of the child by showing, by a preponderance of the evidence, that she performed a reasonable and documented effort to contact and notify the alleged father)

Establishing Paternity as an Adult in Utah

The issue of filing a paternity action in order to seek child support after a child turns 18 is a murky issue in Utah, and the nuances of this issue are still being determined by Utah courts.

On the one hand, there is a situation where a father, an adult child (any age), and the adult child’s mother all file a joint declaration in probate court alleging that the man is the child’s father and requesting that the probate court issue an order declaring the man to be the adult child’s father.  In that situation, the declaration must state

  • that the adult child’s birth certificate does not designate anyone as the adult child’s father (copy of the birth certificate must be attached);
  • the request for the order is made freely and voluntarily by all parties appearing before the court; and
  • genetic test results show the man is the adult child’s father. (A copy of the DNA test results must be attached)

If the mother is deceased, or has been adjudicated to be incompetent, the alleged father and the adult child can file an action together, without the mother.  The primary purpose for this type of action would be to formalize the father-child relationship and to establish rights of inheritance.  When an action is brought this way, the adult child and the adult child’s mother shall not be awarded child support from the man for the time the adult child was a minor.

Also, a paternity action can be brought by the mother, father, child or CSEA Agency until the child’s 23rd birthday (five years after the child turns 18).  Sounds simple enough right?  Wrong.  The tricky part is, that according to one Supreme Court in Carnes v. Kemp, if you are seeking child support after the child has turned 18, apparently that can only be done when the adult child files to establish paternity AND seek child support.

The issue presented to the Utah Supreme Court in Carnes was “Does a court have subject-matter jurisdiction to award retroactive child support payments in a paternity action initiated after the child has reached the age of majority?”  The Supreme Court of Utah answered the question with a YES.  The Court stated that a juvenile court has the authority to make a support order once a parentage determination is made, and that this means that it may extend the length of time in which to bring a parentage action.  This means that an adult, emancipated child can seek retroactive child support until his or her 23rd birthday.  If granted, the time period for retroactive child support could be from birth through age 18.

Okay, so, if you read the Carnes case, plus Utah law, you’d think that, since a mother can file an action for paternity until a child is age 23, that a mother would also be able to file for retroactive child support until the child turns 23, just like the adult child did in Carnes, right?   Maybe and maybe not.  In another case, the mother of J.V., filed for an action for retroactive child support.  The court of appeals said that because the child was over 18 the court lacked subject matter jurisdiction to award child support to the mother.  The court noted that unlike the Carnes v. Kemp case, no action for paternity had been filed, but said that even if the mother HAD filed an action for paternity, the Carnes case only held that an adult emancipated child could establish paternity and get 18 years back support after reaching the age of 18.  The Court of Appeals in In re J.V. said that the Carnes case did NOT say that a mother had a right to file a claim for retroactive child support after the child turns 18, only that an adult child has the right.  This interpretation of Carnes may not be completely consistent with the Supreme Court’s holding in Carnes, and it is very likely that there will be more decisions addressing this issue in the next few years.

Free Consultation with Child Support Lawyer

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wednesday, 28 March 2018

State of Utah Grandparents Rights

When it comes to child custody, if a child is born to an unmarried woman, the parents of the woman and any relative of the mother of the child may file a complaint requesting the reasonable visitation with the child.  Relatives of the father cannot petition the court for visitation with the child unless paternity of the child has been established.  When grandparent or relative visitation has been requested, the court may grant the visitation if it determines the visitation is in the best interest of the child.

State of Utah Grandparents Rights

The marriage or remarriage of the mother or father of a child does not affect the authority of the court to grant reasonable visitation with grandparents or relatives of either the father or the mother of the child.  Note this does not apply to adoption. This means that if a mother or father is not supporting his or her child, or if the mother or father is not visiting his or her child (either/or, does not have to be both), then he or she and their entire family could lose access to the child.

Comparison of Utah Grandparent Visitation Rights With Children Who Were Born During Wedlock and Children Who Were Born Out of Wedlock

It is important to note the difference between non-parent visitation in situations where the child was born during marriage, and when the child was born out of wedlock.  When the child was born during marriage, relatives and any other person (whether they are a relative or not) may file for visitation, but only if one of the parents have first filed an action for divorce, legal separation, dissolution, annulment, or child support.  In contrast, when the child was born out of wedlock, relatives of the child’s mother have an automatic right to request grandparent visitation any time, and, if paternity has been established, relatives of the father have the same right.  So, the law is more liberal about WHO may file for visitation when the parents of the child were married when the child was born, and the law is more liberal about WHEN a relative may file for visitation when the parents of the child were not married.

Grandparent Visitation in the State of Utah
When One of the Parents of the Child has died.

If either the father or mother of an unmarried minor child is deceased (child must be unmarried, has nothing to do with the parents), the court may grant visitation to grandparents or other relatives of the deceased father or mother. It is VERY IMPORTANT to note that the remarriage of the surviving parent of the child or the adoption of the child by the spouse of the surviving parent of the child does not affect the authority of the court under this section to grant reasonable companionship or visitation rights with respect to the child to a parent or other relative of the child’s deceased father or mother.”  This is contrary to what many people believe the law to be – but it is right there in the statute.  If you are a grandparent, and your adult child is deceased, your right to request or receive grandparent visitation is NOT terminated by adoption or remarriage of the surviving parent.

Free Consultation with Grandparent’s Rights Lawyer

When you need help as a grandparent, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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The Attorney’s Role in Commercial Transactions

As a transactional lawyer, I’ve seen the attorney’s role in commercial transactions has changed dramatically over the past several years. It is not always possible to wait for the client to request the preparation or review of documents.  In many instances, the attorney must now assist the client in finding or creating business opportunities.

Sophisticated clients demand top performance from their attorneys. This goes beyond qualifications and experience. Transactions today are usually much more fragile, and the attorney must have the sense and perception to hold them together and then successfully close them.

The Attorney's Role in Commercial Transactions

At a time when client loyalty to attorneys is low, there is also a great deal of pressure on the legal profession to contain legal fees. Also, with the usual transaction being more complex and short fused, specialization and automation are essential.

While a successful result is paramount, an attorney must maintain a high ethical and professional level. The attorney must be a stabilizing influence and should avoid and try to stop senseless bickering between attorneys. The effective attorney need not use the so-called junkyard dog tactics and instead can be a team player.  Additionally, the attorney must keep the client informed so that the client, rather than the attorney, can make the business decisions.

The Lawyer’s Scope of Responsibility

The business community is looking more frequently to attorneys to locate sources of funds. This requires a knowledge of the capital markets and those who are active in it. This may be accomplished through a direct introduction to the source or to one who has access, such as a mortgage broker or investment banker.

The structure of transactions is now much more complex and usually involves more than one source of funds. For example, current underwriting criteria of lenders requires substantial equity in a project. If an investor does not have the necessary cash or is not willing to part with it, then another level of funding must be added.  This may be an investor, a partner or an equity lender.

It may be necessary to structure a business organization for a party or to tailor a transaction to satisfy a particular need. In addition, tax issues are common and a transaction may involve complicated governmental regulation. This would be the case in the sale of a security which, if not exempt, requires a registration.

The documentation for a transaction cannot be the main focus. It must also be simple and concise, yet complete and fair. So that the business terms are clearly understood, it may still be wise to start with a letter of intent which can also serve as an executive summary of the transaction. The requirement of a legal opinion is becoming more common and is not limited to institutional transactions.

Business relationships and agreements are difficult to establish and a challenge to keep intact. For this reason, an attorney must manage or assist in the management of the transaction until it is closed. This involves regular and clear communication and trouble shooting where required. An attorney with an inflated ego or a contentious personality does not have a place in the transactions of today.

Transaction Attorney’s Fees

In too many instances, the cost of the legal work is more important to the client than any other aspect of the engagement of the attorney. If clients require a flat fee or other controls on the costs, the scope of work and amount of time to be expended by the attorney must be clearly defined. Although a percentage fee may also have a place in a transaction, it may be more suitable as a finder’s fee or creating an opportunity rather than for performance of legal services.  The fee determination is often based more on value than time.  Also, part or all of the fees may be contingent upon achieving a successful result. An attorney may not always be able to accommodate this request because of ethical or financial reasons.

There are rare occasions where a one-line billing statement at the end of a project is appropriate. Usually, the billing statements should contain sufficient detail so that the client can understand the work that was performed and the costs that were advanced. The statements should be sent on a regular basis, usually monthly.

Hopefully, the competition between attorneys and others providing similar services will not put them into a bidding war for the work. As the old adage goes, “you get what you pay for,” and quality may be sacrificed. Also, it would be a mistake to put too much emphasis on an hourly rate, since excessive hours from an inexperienced attorney will nullify the benefit of a low hourly rate.

Written Fee Agreement

The scope of the work and legal fees must be discussed at the outset. The fee arrangement must be confirmed in a fee letter or agreement. The client should understand that the attorney is in the business of selling legal and related services, and the attorney should know that the client is entitled to expect and receive competent and timely legal services for a fair fee.

In engaging an attorney, the client should ask about the attorney’s experience, reputation, prior successes and availability.  Also, the existence of adequate errors and omissions insurance coverage should be discussed. The client should be fair in its dealings with the attorney but should not tolerate any deficiencies in the work or conduct of the attorney.

An attorney should be retained early in the transaction and kept involved in the important stages. This will ensure that all of the deal points have been negotiated and are included in the final documentation. A good relationship between the attorney and the client is based upon mutual respect.  A cooperative effort will go a long way in achieving a successful result.

Free Initial Consultation with a Commercial Lawyer

When you need a transactional commercial attorney, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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