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In-Kind Child Support Payments

In-Kind Child Support Payments

One question that comes up every now and then is whether a child support payor is entitled to a credit against their child support and/or alimony obligations for “in-kind” goods and services they have provided to their ex. For example, if instead of writing their ex a $500 check for child support they instead agree to pay their ex’s mortgage, utility bill, or all their children’s medical bills.

The answer depends on whether there is a support order in place yet or not. If there is, you must strictly comply with that order and usually are not entitled to any credit for “in-kind” goods or services you provide. But, if no order is in place, then you may be entitled to a credit for any “in-kind” support you can prove that you provided.

In Knudson v. Utah State Dept. of Social Serv., 660 P.2d 258 (Utah 1983), the Utah Supreme Court held that a divorced father was entitled to a credit against child support for voluntarily paying his ex’s wife mortgage payment during the pendency of their divorce. There was no child support in place at the time. The Court explained that:

In-Kind Child Support Payments

“Obligors commonly fulfill their support obligations by a variety of means, including services or commodities in kind. While it may be administratively difficult to ascertain the value of such support in some cases, as the Department argues, we think reality and fairness and even sound administration demand it. As concerns the Public Support of Children Act, the Department of Social Services should shape its administration to measure the reality of parental support, rather than attempt to reshape reality to serve its administration. The measure of the obligor’s credit should be the value of what he has furnished. … Because the admitted value of the housing already provided by appellant (over $1,500) is well in excess of the amount of reimbursement ordered by the Department ($729), we resolve this case without remanding for another proceeding by holding as a matter of law that the Department was not entitled to any reimbursement from the appellant.”

Conversely, in Ross v. Ross, 592 P.2d 600, 603-604 (Utah 1979), the Utah Supreme Court rejectedan obligor’s request for a credit for in-kind goods and services he had been providing to his ex. A child support order was already in place at the time. The Court wrote that:

“Plaintiff next contends that from the time of the divorce to the time this action was brought he made certain voluntary expenditures in behalf of defendant and the children and should be given credit for such payments against the alimony and support arrearages. Plaintiff is not entitled, however to credit for expenditures made on behalf of the children or defendant which do not specifically conform to the terms of the decree. To do so would permit plaintiff to vary the terms of the decree and to usurp from defendant the right to determine the manner in which the money should be spent. Only if the defendant has consented to the plaintiff’s voluntary expenditures as an alternative manner of satisfying his alimony and child support obligation, can plaintiff receive credit for such expenditures.”

The distinction between these two cases was whether a child support order was already in place. The Knudson court explained that when no court or administrative order is in place an obligor can seek a credit for in-kind services provided to the support obligee.

Here is an example of when this rule could come in handy. Suppose you have an unmarried couple who have a child together. The parents do not live together, but the father ensures the child never goes without. He always pays the mother’s rent, buys her groceries and diapers, and pays for all the child’s medical and daycare expenses without asking the mother to reimburse him a penny. Then, one day the parents have a falling out and the mother files suit demanding 4-years worth of retroactive child support (which she is entitled to do under Utah law). The “in-kind” contribution rule would be a saving grace to a father under such circumstances provided he could show that he had in fact been supporting his child all along.

In-Kind Child Support Payments

I was arrested for DUI in Utah, but the Cops never read me my Miranda rights!

I was arrested for DUI in Utah, but the Cops never read me my Miranda rights!

The Constitution should apply to all equally.  A person accused of murder has the exact same rights as someone accused of writing a bad check.  This is the way it is supposed to work, but in the real world, it doesn’t.  In fact, the Utah Courts and the Utah legislature have continuously found ways to limit the rights of the citizens accused of DUI in Utah.  Here is the reality:

  • If you are arrested for DUI, the officer will immediately seize your license.  No judge, no jury, and you are presumed guilty before anyone hears the facts of your case.
  • You can contest your Drivers License Suspension, and if you win the administrative hearing, you can still lose it in the Criminal Proceedings.  Double jeopardy does not apply.
  • The officer will not read you Miranda warnings until after he has done his investigation, and he may never read them even after you are arrested.
  • You do not have a right to an attorney before you give evidence against yourself.  In fact, in Utah, you have no right to an attorney when you are deciding to take a chemical test.
  • Normally, if you remain silent, the jury cannot hear evidence of you exercising your right to remain silent.  However, if you refuse a chemical test, there is a Utah statute that specifically allows the evidence of you refusing to be presented to the jury.
  • Officers are required to have a reasonable suspicion that you have committed a crime in order to pull you over.  However, in a DUI check point, officers can pull you over for no reason and check to see if you have been drinking.
  • Normally, if the government destroys evidence, the evidence cannot be used against.  In a Utah DUI situation, you have no right to retest the chemical evidence against you.

What Should I Do If I Received a DUI?

What Should I Do If I Received a DUI?

In Utah, a DUI charge results in two separate cases. First, an administrative case is processed by the UT Driver License Division (the “DLD”), which determines how the charges affect your Utah driver’s license.  If you do not request a hearing within 10 days from the DLD, they will suspend your license automatically.  Secondly, a criminal case is generated to determine whether or not the person charged will face fines, probation, or jail time. If you are facing DUI charges in the Salt Lake, Utah, Davis or Weber County areas, make sure to hire a criminal defense attorney who will fight for your rights in both cases.

Look at the bottom of your DUI citation, and you’ll find a section of fine print that warns you that your UT driver’s license will be suspended automatically unless you request a hearing within 10 calendar days of the date of arrest. Most people aren’t sure what this means or how to do it.   At Stevens & Gailey, P.C. we will request this hearing for you for free, with no obligation. Don’t wait, or you may regret it. On a first offense, you could face a license suspension of 120 days or an 18 month revocation if you refused a breath test. If you don’t request your hearing in the first 10 calendar days, there is NO provision for getting your license back, even if they shouldn’t have taken it in the first place. Call us to make sure your DUI defense strategy is as effective as it can be. Drunk driving defenseOgden criminal defense attorney

What Should I Do If I Received a DUI?

Not every case is gifted with good defenses, so we have also developed ways to avoid the most serious consequences of a DUI charge by negotiating favorable plea bargains.

Plea Bargaining

Not every DUI case can be won on motions or at trial, and the Utah Legislature has seriously restricted the ability to plea bargain a DUI case and avoid consequences. As such, in order to get a good plea bargain in a DUI case, it is important to hire an experienced and aggressive attorney who focuses on DUI cases and can gather evidence, identify and raise any available defenses, and file motions in order to get a better plea bargain or get the case dismissed. Likewise, an experienced and aggressive DUI attorney can also be effective at negotiating a favorable plea bargain. The goal of any plea bargain is to avoid as many consequences as possible. By identifying and pointing out potential defenses or other deficiencies in the case, a skilled defense lawyer can use these points to persuade the prosecutor into agreeing to dismiss charges or significantly reduce the charges in order to avoid the most serious consequences, such as driver license suspension, jail, fines, conditions of probation, and a conviction for DUI. Our reputation for being skilled and aggressive DUI litigators who are not afraid to defend DUI cases by filing motions and taking cases to trial allows us to negotiate plea deals that other attorneys simply do not get.

Motions to Suppress

The first way to defend a DUI case is with Motions to Suppress. Motions to Suppress are legal arguments to the judge asking that certain pieces of evidence—and sometimes all of the evidence—be suppressed or excluded from court. Some examples of such motions are:

  • Lack of Reasonable Suspicion to Stop
  • Illegal or Excessive Detention
  • Lack of Probable Cause to Arrest
  • Motions to Suppress Breath or Blood Tests
  • Motions to Suppress Field Sobriety Test Evidence
  • Motion to Suppress Statements for Failure to Provide Miranda Warnings

Winning one or more of these motions can result in a full dismissal of the case, while others just eliminate evidence, which results in more lenient plea bargains or better cases to take to jury trial. All these arguments depend on the specific facts and evidence of your individual case; therefore, we investigate every case thoroughly, obtaining in-car and in-station videotapes, dispatch recordings, breath testing machine calibration and maintenance records, blood and urine test lab files, medical records, accident reports and reconstruction, the arresting officer’s training records, officer training materials as well as conducting on scene investigations witness interviews

What Should I Do If I Received a DUI?

Trial

The key to successful jury trials is investigation, preparation, and presentation. Clearly not every case goes to trial, but the attorneys at Stevens & Gailey, P.C. are not afraid to take even the most difficult cases to trial and will provide you with your best chance for a NOT GUILTY verdict.

Getting a Job with a Felony Conviction in Utah

Getting a Job with a Felony Conviction in Utah

Finding a job in today’s economy can be tough enough even without a criminal record.  As is all to common if an individual has been branded a “convicted felon,” finding employment can seem next to impossible.  If you are having difficulty finding work as a result of your criminal record, a criminal defense attorney can help.

Many employers are very concerned with the backgrounds of people they intend to hire.  For most jobs, due to the ease of online searches and information gathering you most likely will be subject to a criminal background check.  Even if the employer doesn’t run a formal background check, many employment applications ask about your criminal record.  Many even run google searches looking for mugshots.

If the decision comes down to two equally qualified candidates, one with a felony conviction and one without . . . it is fairly easy to predict who will get the job.

There are potential solutions to this problem that many people overlook.  With the help of a Utah criminal defense attorney, you may be able to clean up your record.

An expungement gives you the chance to wipe a conviction off your record.  Once your record is expunged, you can answer most job applications as though the conviction never happened.

Unfortunately, expungements have become harder to obtain as the Utah legislature has tightened the requirements for eligibility.  But even if you are not eligible for an expungement, there may still be a way to remove a felony conviction from your record.

More often overlooked is the option of having an old conviction reduced.  A Utah “402” reduction gives a person who has successfully completed probation the chance to have the level of their conviction reduced.  This can bring a felony conviction down to a misdemeanor level, and can allow you to honestly answer “no” when asked if you have been convicted of a felony.

In today’s job market, you need every advantage you can get.  Don’t let your criminal record hold you back if you are eligible to have it expunged or reduced.

Legal Updates on Child Custody Laws in Utah

Legal Updates on Child Custody Laws in Utah

Child Custody Laws in Utah Have Recently Changed

The Utah legislature has changed the Utah Statutes regarding child custody laws in Utah, creating a presumption of joint legal custody. Joint legal custody means the “sharing of the rights, privileges, duties, and powers of a parent by both parents.” Utah Code Ann § 30-3-10.1.

The Child Custody Laws in Utah Will Affect Parental Rights

The recent statutory changes should positively affect legal custody for many divorced parents by ensuring that they may participate more in important decisions made for their children.  The statutory presumption of joint legal custody will help parents struggling through the divorce process since sharing decisions helps reduce the manipulation that one spouse may use over the other spouse which is often seen in sole legal custody situations.  The changed child custody laws in Utah emphasize the need to create parenting plan as part of the custody case.  Such parenting plans are required for any case involving shared joint legal and physical custody.

Contact a Child Custody Lawyer for More Info

With some of these recent changes, if you have any questions, contact Stevens & Gailey, P.C. for more information.

Self Defense in Utah Domestic Violence Cases

Self Defense in Utah Domestic Violence Cases

Under certain conditions, Utah allows a person charged with a crime, such as domestic violence, to claim self-defense. Self-defense is an affirmative defense to prosecution for any offense based on the conduct of the accused.1 Self-defense can be claimed by a person accused of a crime to justify their use or threatened use of force against another.2 If a person charged with crime, such as domestic violence was justified in their use or threatened use of force, they are entitled to a “not-guilty” verdict.3 Wherefore, a person charged with a crime, such as domestic violence, should consider using self-defense as justification for their conduct.

The amount of force a person is justified in using to defend themselves or another depends on the following conditions: The person’s reasonable belief in the perceived threat to themselves or another4; Whether the person created the circumstance in which force or threatened use of force was used to defend themselves or another5; and Whether the person was lawfully in the place were force or threatened use of force was used to defend themselves or another6.

In determining a person’s reasonable belief in the perceived threat, the judge or jury may consider, but is not limited to, any of the following: the nature of the danger; the immediacy of the danger; the probability that the unlawful force would result in death or serious bodily injury; the other person’s prior violent acts or violent propensities; and any patterns of abuse or violence in the parties’ relationship7.

As long as the person was lawfully in the place where force or threat of force was used to defend themselves or another, they do not have a duty to retreat. However, if the person was not lawfully in the place where they defended themselves or another, they must retreat from the encounter and effectively communicate to the other person their intent to do so, in order to claim self-defense.

1Utah Code Ann. §76-2-401(1) 2Utah Code Ann. §76-2-402(1) 3State v. Wilson, 565 P.2d 695 (Utah 1977)4Utah Code Ann. §76-2-402(1)(a) and §76-2-402(1)(b) 5Utah Code Ann. §76-2-402(2) 6Utah Code Ann. §76-2-402(3) 7Utah Code Ann. §76-2-402(5)