Tag: Divorce American Fork

Preparing For Mediation With 5 Helpful Tips

Preparing For Mediation With 5 Helpful Tips

Preparing For Mediation With 5 Helpful Tips

Working through any sort of child custody case can be a very sensitive topic for both parents. No matter what the underlying situation might be, there can be high pressure, plenty of emotion and an overwhelming worry of what could come. When you are getting ready to go into a mediation appointment in your custody case, there are some ways that you can make things a little easier so that you are nice and prepared. These are five helpful tips to get you prepared for your child custody mediation:

Never Go In Unprepared

There is nothing worse than finding out that you are not prepared, especially when it comes to something as important as child custody mediation. You can take the time to list any of the issues that you would like to discuss while you are at mediation. Write down any your fears or concerns and don’t forget to mention what you think could be done to help get some of the issues resolved.

Properly organizing all of your thoughts will help you to have a better understanding of any problems or issues that could be in the way while you are looking to get the agreement that would make you happy. Being more prepared will also give you a solid footing should you have to go into any sort of negotiation with the other parent.

Preparing For Mediation With 5 Helpful Tips

What Are You Asking For?

You may have been thinking about it, but you may not know exactly how to get your point across when it comes to what you are looking for the results of mediation to be. Would you like to have more custody than you do now, or would you simply want to share joint custody? There are sample parenting plans that you can download online or ask your American Fork Divorce Attorney. This will help you to determine what may work best for you. Always take into consideration any of the vacations, holidays, school programs and schedules that your children currently have.

Voice Your Concerns

No matter how difficult it might be, you need to be able to voice any concerns that you have. After all, as one of the parents in the situation, you need to be a voice for your child. If you are worried about your child(ren) being with the other parent for long periods of time due to abuse in the past, you need to be able to make this known. Maybe you are worried about a back and forth schedule during the week because of their ages or work schedules. No matter what the issues might be, mediation is the perfect time to lay it all out on the table so that you can hopefully have a chance to talk about every aspect in a safe and civil manner.

Gather The Right Documents

If there is anything on file that you want to present during mediation, you need to make sure that you have it with you and give it to your Ogden Divorce Attorney or your American Fork Divorce Lawyer. This could be anything from your child’s report cards or a police report. Basically, you want to have all of the necessary documentation to back up any and all concerns that you have when it comes to custody or visitation scheduling. The more paperwork and physical evidence that you have, the easier it will be to go through the mediation session and it will cut down on the he said, she said conversations that can often times take place.

Take A Breath And Stay Calm

Whether you go in with a cool head or not, mediation can be very stressful. This is even more so when one or both of the parents in the situation are known for being able to push each other’s buttons. You never want to lose your temper, as it can actually make you look volatile and irrational to the mediator that is working with you. Also, if you are able to keep a calm head, it will help you to be more open to compromise and working through the important issues for the sake of your kids. This is why it is good to have an Ogden Divorce Lawyer with you.

There are some courts that will allow your lawyer to go with you, while others are not allowed. The mediation plan should still be discussed with your lawyer and he or she can help you to gather any of the necessary paperwork that you should have on hand. Always explain as best you can what all of your concerns are so that your lawyer can work on giving you some good tips before mediation takes place. Even if you are unable to have your attorney there, he/she will be able to get on the right track for a good negotiation strategy.

All too often, a custody dispute can start to get confrontational in nature and both parents can hate one another. You never want to use custody as a bargaining chip or any sort of battleground. Instead, you will start to see the benefit of  being able to talk with one another in a civil manner. With the right mediator, you may just be surprised at exactly how much you will be able to work through to get to a  compromise.

Once you have a date for mediation, you want to take the time to use these tips to get everything worked out on one day. The combination of preparedness and calmness with help you get through the day with ease while enduring the struggle to find an agreement.

Preparing For Mediation With 5 Helpful Tips

After a Divorce Should I Modify My Estate Plan?

Generally, in Utah, once a divorce decree is final and the parties are officially divorced, provisions for the former spouse in the estate plan are automatically revoked. Pursuant to Utah Code §75-2-804  all revocable gifts made to the former spouse and the former spouse’s relatives are revoked upon divorce.  Thus, divorce revokes all gifts made to the former spouse and the former spouse’s relatives in a will, in a revocable (living) trust, in a retirement plan beneficiary designation, on a pay-on-death (POD) account, and in a life insurance policy beneficiary designation (where the insured spouse owns the policy).    It should be noted that the divorce does not revoke gifts to one’s own children, even though they are also the former spouse’s children. Divorce lawyer in utah

After a Divorce Should I Modify My Estate Plan?

In addition, section 75-2-804  provides that a divorce revokes any nomination of the former spouse or a relative of the former spouse as a personal representative in a will, and any nomination of the former spouse or a relative of the former spouse as a successor trustee under a revocable trust. Divorce salt lake city

It should be noted that irrevocable gifts and irrevocable fiduciary nominations are not revoked by divorce.  Thus, the provisions of an irrevocable trust remain intact, notwithstanding the divorce, unless the terms of the trust expressly provide otherwise.

After a Divorce Should I Modify My Estate Plan?

The automatic revocation provisions are designed to accomplish what most people would want for their estate plans upon divorce.  They are intended to “fix” the divorced person’s estate plan even if he or she does not get around to actually revising the plan before he or she dies.  It is nonetheless important to routinely consult an attorney and to regularly revise your estate plan after getting divorced in order to ensure that your assets will be distributed in the manner you intend. Filing for divorce in utah

For more information and a free consultation contact one of our lawyers today.

After a Divorce Should I Modify My Estate Plan?

Poaching in Utah Criminal Defense

As the Fall hunting season begins: hunters beware!

If asked most hunters would say Poaching is “to kill any animal when you had no right to”.

The common sense definition of poaching makes sense, unfortunately the Utah Code is not so cut and dry. Utah criminal law has variying degrees of mens rea or mental levels of culpability that can lead to a criminal conviction. They are as follows: 1) intentionally, 2) knowingly, 3) recklessly, and 4) negligently.  See (Utah Code § 76-2-101(1)(b)(i) ).

Poaching in Utah Criminal Defense
Poaching in Utah Criminal Defense

People generally tend to think that if they did not intend for something to happen, or did not mean for a specific result to occur, then they should not be found guilty. However, do not be fooled, Utah law, is not written in such a way.

Under the Wildlife Resources Code of Utah § 23-20-3 states, in part, that:

(1) Except as provided in this title or a rule, proclamation, or order of the Wildlife Board, a person may not:

(a) take protected wildlife or its parts;

(b) collect, import, possess, transport, propagate, store, donate, transfer, or export protected wildlife or its parts;

(c) take, possess, sell, purchase, barter, donate, or trade protected wildlife or its parts without having previously procured the necessary licenses, permits, tags, stamps, certificates of registration, authorizations, and receipts required in this title or a rule, proclamation, or order of the Wildlife Board;

(d) take protected wildlife with any weapon, ammunition, implement, tool, device, or any part of any of these not specifically authorized in this title or a rule, proclamation, or order of the Wildlife Board;

This statute is basically a catch all, and allows for prosecution even when a Utah hunter did not intentionally break the law. An individual can even be prosecuted under this section if they made an honest mistake as to their location (thinking they were on a different tract of land).

The statute is allowed to catch ‘honest mistakes’ because of paragraph (3)(b). The paragraph says: “does so with criminal negligence as defined in Subsection 76-2-103(4). § 76-2-103(4) says:

“With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor’s standpoint.”

A hunting example of criminal negligence would be if a hunter, who has a Utah hunting license, thought he was on land he could shoot the animal and was actually 5 feet off the land. Even though the hunter did not intend to take an animal illegally (poach), and had a license, he could be prosecuted under § 23-20-3.

Hunters, be careful. Know your location before you pull the trigger. Because, even though you have a license, and do not have the intent to take an animal unlawfully “It was an honest mistake”.  You could still be prosecuted for an honest mistake, or in the eyes of Utah law, criminal negligence.

Source: Utah State Legislature, “Title 23 Utah Criminal Code Chapter 20 Section 3,” accessed on Sept. 19, 2014

Common Facts about Police Search and Seizures

When are police considered “searching” during an investigation?

In general, a court will ask two questions to conclude whether a police investigation turned into a search.  First, the court will ask if the person whose home or property were being investigated/searched expected a degree of privacy. Next, the court will ask if that expectation of privacy was reasonable.  This question is answered in the light of society, meaning the question revolves around whether society would recognize some sort of privacy in the matter in question.

For an investigation to turn into a search, a court must conclude that the investigation impinged or intruded upon a person’s “legitimate expectation of privacy.” This is found when the answer to the above two questions is yes. If either question can be answered in the negative, meaning that the person being search either did not have something to keep private, or if the expectation of privacy was not reasonable, then there was no search.

Is my private property really that private?

Property that is within your house or on your property is generally considered to be private. If the police have to enter onto your property in order to get a look at the evidence or other property that they wish to use in court, they generally have to have a search warrant to do so. However, there are certain situations, like stopping suspects from destroying evidence, in which police can search and seize your property in your home without a warrant. This is because the situation itself demands prompt action by the police.

If you consent to an officer searching your home, however, you waive any right to challenge a warrantless search later on. Additionally, if an officer is on your property for a legitimate reason (perhaps pursuing a felon), any contraband that is in plain sight of the officer is fair game to be seized, even without a search warrant.

The police told me they have a search warrant, what is it and what did they need to do to get it?

A search warrant is a judicial order issued by a judge or magistrate that gives permission and authorizes the police or other law enforcement agency to conduct a search of a location or person and to seize any evidence of a criminal offense. The search warrant is addressed to the person to be searched or to the person who owns the premises to be searched and informs the addressee that the judge issuing the warrant has found it reasonably likely that certain evidence may be found there.

Generally speaking, police officers or other law enforcement agencies must apply for a search warrant before conducting a search of the person or premise in issue. If any search is conducted in the absence of a search warrant, it is presumed to be unreasonable and will likely be ruled an illegal search and seizure. If a challenge to such a search is made, the police or parties conducting the search will have to explain and justify their reasons for conducting a search, as well as explain why a warrant was not issued before the search.

The police must normally make a minimum showing to the judge issuing the search warrant in order for the judge to make the decision to grant the order. Police have to show the judge that:

  • Probable cause exists that a crime has occurred, and
  • Evidence or contraband linked to that crime will more than likely be found in a certain location on the property or person at issue.

What powers do police get when they have a search warrant?

A search warrant gives the police the legal authority to enter a premise without permission of the owner to search for the evidence listed in the warrant in the places authorized by the warrant. For example, if the search warrant allows the police to search the bathroom of a home for illegal drugs, then the police should confine their search to the bathroom.

There are certain exceptions to this search warrant rule which routinely allow police to conduct a wider-spanning search than allowed by the search warrant, however. In general, police can search beyond the scope of the search warrant in order to ensure their own safety as well as the safety of others. In addition, police can search widely to stop the destruction of evidence, look for evidence beyond the scope of the original search warrant because their initial search revealed that there may be additional evidence in other locations on the property, or to find more evidence based upon what is in plain view.

Some examples may clarify these points. If the police have obtained a warrant to search the garage of a house, they may walk through the home in order to get to the garage to conduct their search. If, on the way to the garage to look for drugs, the police hear toilets flushing upstairs, the police may broaden their search in order to check the bathrooms for illegal drugs that are likely being flushed down the drain. Or, a search of a dining room may be expanded to the kitchen if police hear a gun being loaded by the refrigerator.

Lastly, and it should be emphasized, the police can seize evidence that is in plain view if the police are there for a legitimate reason. For example, if, on their way to search the garage, the police see four bags of marijuana sitting on the coffee table, the police can seize the drugs.

Are search warrants required for every search?

As you may have guessed from reading above, the answer to this question is no not every search is an illegal search and seizure in the absence of a warrant. Here are some of the main examples in which police or other law enforcement agencies do not need a search warrant to conduct a search:

  • Consent. If the police show up at your door and ask you if they can come inside to search for drugs and you consent to the search, then the police do not need a warrant.
  • Emergency. If the police’s search is in an emergency situation, then they may not need a search warrant. For example, if the police are pursuing an armed suspect that has disappeared into a small neighborhood, they may not need a search warrant to search any of the homes there because the suspect is putting the residents at risk.
  • Searches incident to arrest. After a person has been arrested by the police, the law enforcement officers may conduct a search of the person and his immediate surroundings for weapons that may be dangerous to the officers or others.
  • Plain view. Police do not need a search warrant to seize evidence that is in plain view of a place where the police are legally authorized to be.

My landlord/roommate gave the police permission to search my belongings – was this an illegal search and seizure?

Generally speaking, the person in charge of an area has the power to give permission to the police to search the area. So, if you share an apartment with a roommate, your roommate probably has the power to give permission to the police to search common areas in the apartment, like the living room or the kitchen, but not your personal bedroom.

Likewise, your landlord cannot give permission to the police to search any part of your apartment, except places like a communal common area, like a washer/dryer room in an apartment building. However, you should keep in mind that it is not an illegal search and seizure if the police search your apartment without any permission if they feel that the search is an emergency.

During a traffic stop, can the police search my car and frisk me?

In general, the police are allowed to search and frisk you if they have a reasonable suspicion that you are armed during a traffic stop. This is not an illegal search and seizure. In addition to frisking for weapons, the police can also pat you down for contraband material, like drugs. A recent Supreme Court ruling altered the laws that allow a police officer to search a car after a traffic stop. The Court ruled that a search of the passenger compartment of a car is only allowed if either:

  • The driver/arrestee is within reaching distance of the passenger compartment at the time of the search (meaning that the police cannot search your can if you are arrested in the back of the squad car), or
  • It is reasonable to believe the vehicle contains evidence of the offense of arrest (meaning the police cannot search your car for weapons unless they arrested you for a violent crime or illegal weapon possession).

Source: Findlaw.com “Search and Seizure Law“, accessed Septeber 12, 2014.

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