Marriage Legal Help

Marriage Legal Help

For some couples embarking on marriage, it just makes more sense to consult with an attorney beforehand. There may be debts, property, or child custody issues at play. Family law attorneys can help you understand the marriage requirements in your state, draft a prenuptial agreement (or “prenup”), and provide legal assistance for other issues pertaining to marriage. That said, you may be able to get by with just a single attorney consultation, too. The following resources will help you better understand the process of hiring a family lawyer, learn about the most common reasons marrying couples hire attorneys, find legal counsel in your area, and more.

Getting Married: Do You Need a Lawyer?

The work of an attorney is not necessary for most marriages, but there are some instances where one or both of the parties should get legal help. If you need more information about marriage requirements or if one party is a foreign national, for example, an attorney can work with both partners together. But for other legal processes in which one or the other’s interests are at stake, such as a prenuptial agreement, each party needs to work with their own lawyer.

So while you don’t need a lawyer in most situations, it’s important to consult with one if you have any doubts or concerns about the legal ramifications of your marriage. For instance, those planning a destination wedding will need to know whether the marriage will be valid upon return to the United States and whether any special steps need to be taken.

Previous Marriages

If you were previously married, you will need to present the county clerk with either your divorce decree or former partner’s death certificate. So if you need copies of either, or if there are extenuating circumstances standing in the way, an attorney may be able to handle it for you. If you were in a common law marriage — in other words, your state recognizes a legal marriage in the absence of obtaining a marriage license — you may have to prove its validity (prior to the divorce or death).

How to Find and Work with an Attorney

If you and/or your spouse-to-be have specific legal questions or would like to draft a prenuptial agreement, you will want to speak with a family law attorney experienced in marriage. Most family law attorneys also handle divorce, child custody, spousal support, and child support matters. You also want to make sure the attorney you hire is a good fit; the lawyer who helped your friend may not necessarily be the right one for you and your needs.

When you research lawyers, you’ll want to know something about their background and experience. You should find out how long they’ve practiced law; what types of cases they typically handle; whether they have handled a case like yours before; and their success rate. It’s also helpful to know the attorney’s legal approach; how they communicate with clients; and generally whether they would be a good fit for you personally.

Once you’ve found the right attorney, you’ll want to ask about their billing process. Depending on your case, certain billing structures are more advantageous than others.

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 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

from Best Utah Attorneys https://bestutahattorneys.tumblr.com/post/174268059499

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Exemptions Inside and Outside of Bankruptcy

Exemptions Inside and Outside of Bankruptcy

Inside of bankruptcy, exemption laws shield certain items of property from the bankruptcy trustee. Outside of bankruptcy, exemption laws protect your property from judgment creditors.

The first rule to remember is that not all of your stuff is exempt. Each state and even the federal government have laws in place that outline what stuff debtors are permitted to keep no matter how much they owe to a creditor. The stuff that your state says is protected is considered exempt or untouchable. This means the bankruptcy trustee can’t sell it and creditors can’t attach it in satisfaction of a judgment.

Exemption Laws In Bankruptcy

Perhaps the number one misconception about chapter 7 bankruptcy is the belief that you will lose all of your property if you decide to file. This is not true. Many that file for chapter 7 bankruptcy don’t lose a single thing because their assets are fully exempt from the trustee. Inside of bankruptcy, exemption laws work to divide your property into two basic groups: exempt and non-exempt. Stuff that is considered exempt is property of a type and value that your state’s laws deem necessary to getting by. For example, everyone needs a car to get to work, so many states designate equity in your car exempt up to a certain dollar amount. The process in Georgia works as follows:

Debtors in Georgia are permitted to protect up to $3,500 of equity in all their motor vehicles. Value or equity that execceds this amount is considered non-exempt and potentially subject to sale by the trustee. For the purpose of determining the equity in a car, the fair market value is determined by reference to used car price guides customarily used by Georgia automobile dealers unless the debtor’s car is not listed in such a guide.

If you owned a car free and clear worth $15,000 in Georgia and filed for chapter 7 bankruptcy, it’s very likely the trustee would want to sell the vehicle and distribute the proceeds to your creditors (after taking 25% off the top). Keep in mind though that, were the car to be sold, you’d still be entitled to a check for the amount of the exemption, in this case $3,500 (this doesn’t factor in use of the GA wildcard exemption which could increase this amount). A sale doesn’t defeat your right to an exemption. You also have the option of paying the trustee the non-exempt value of your car in cash to avoid losing it at auction. You can usually negotiate a buyout through your attorney.

Exemption Laws Out of Bankruptcy

While the primary focus on our forum is their application to bankruptcy, exemption laws apply outside of bankruptcy court as well. When a consumer is judgment proof, all of the property they own is protected by exemption laws. This means that even if a creditor gets a judgment through a collection lawsuit, there is no property they can attach to satisfy the debt. One of your creditors could get a judgment against you for $1,000,000 and would have no rights to any of your stuff if it is all exempt. By contrast, judgment creditors can attach wages and property that are non-exempt. For example, the state of Alabama does not have a specific automobile exemption. Instead, debtors are permitted to protect up to $3000 worth of personal property (which includes cars, furniture etc.). If an Alabama debtor found themselves being pursued by a creditor, and owned a classic car worth $20,000, some of the equity in that car would be nonexempt and therefore exposed to attachment by creditors.

Are exemption laws the same in bankruptcy and collection lawsuits?

In some cases yes, the same exemption laws will apply to state collection actions and a bankruptcy, but it ultimately depends on your state’s laws and how long you’ve lived there. Thanks to bankruptcy reform legislation passed in 2005, the laws of your current state of residence might not apply to your bankruptcy. If you haven’t lived at your current home for the last 730 days, the laws of the state where you lived for the 180 days which preceded the 730 day period will apply to your case. Outside of bankruptcy court, each state determines how their collection laws will apply and the results can vary greatly. Some, such as Utah, have residency requirements before maximum homestead protection is triggered. If you have questions about how the law will apply to your case, contact a local attorney.

Free Consultation with a Bankruptcy Attorney

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We will help you. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

from Best Utah Attorneys https://bestutahattorneys.tumblr.com/post/174259008464

Domestic Violence Lawyer

As a criminal lawyer, I’ve heard that a topic that used to be “kept in the family” or swept under the rug, domestic violence has been more prevalent in the news and media today than ever before. As a result, a lot of people are wondering how domestic violence is legally defined, where victims can find emotional and legal help, and what can be done to prevent it in the future.

Domestic Violence Lawyer

This section provides helpful information on a variety of domestic violence issues, starting with identifying early warning signs and symptoms of domestic violence. Additionally, there are articles on the legal action and practical steps necessary to protect yourself from physical, sexual, emotional, or financial abuse. You’ll also find information on related domestic violence topics – such as stalking and harassment — and links to state-specific domestic violence laws and resources.

Domestic Violence, Defined

While one of the top health concerns in our country today, many people lack a full understanding of the depth and scope of domestic violence or how it can even be identified. Victims may not realize that what is being inflicted upon them is, in fact, domestic violence, and therefore won’t know to take action against their abusers. At the same time, friends and loved ones of victims may not be able to help if they don’t understand what domestic violence looks like.

The Office on Violence Against Women defines domestic violence as a pattern of abusive behavior in any relationship that’s used by one partner to gain or maintain control over another intimate partner. This behavior can include physical, sexual, emotional, psychological, and even economic abuse. Stalking and threats may be classified as domestic violence as well. And although we normally think of battered wives in the context of domestic abuse, non-married partners, family members, children, and other cohabitants can also be victims of domestic violence.

Preventing and Punishing Domestic Violence

Every state has criminal statutes prohibiting domestic abuse. Whereas law enforcement typically turned a blind eye to domestic violence cases in the past, new laws requiring arrests and mandating harsher penalties have led to an increased rate of response and prosecution. In addition, tort law allows victims of domestic violence to sue their abusers in civil court, and possibly recover damages for their physical, economic, and emotional injuries. Victims can also file for orders of protection, more commonly known as restraining orders, to prevent further abuse.

These remedies, however, are normally only available after an incident of domestic violence has occurred. It’s up to us to stop domestic abuse before it starts. Domestic violence organizations can provide resources on how to identify the warning signs of abuse and how to exit a potentially dangerous relationship. There’s also information on how to know if a neighbor, co-worker, friend, or family member is in a possibly harmful domestic scenario and, if so, how you can help.

Legal Help for Domestic Violence

First and foremost, if you feel unsafe in your home or relationship, you can always call 911. In addition, an experienced family law or criminal law attorney can assist you with everything from talking to the police about a violent incident to filing for protective orders, separation or divorce, and a civil lawsuit.

Free Consultation with a Lawyer in Utah

When you need legal help related to domestic violence, call 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

from Best Utah Attorneys https://bestutahattorneys.tumblr.com/post/174237346539

Divorce and ADR

The thought of you and your spouse going through a divorce is bad enough, without having to deal with a trial to decide who gets the furniture. As much as trials are glorified on television, most legal disputes never make it that far and are usually resolved by a settlement outside of court proceedings. Divorces are no different. Here is a quick primer on divorce and alternative dispute resolution.

Divorce and ADR

Alternative Dispute Resolution and Divorce

Not all divorces have to go to court. A divorce can be resolved through informal negotiations between you and your spouse (usually with attorneys), by using of out-of-court alternative dispute resolution (ADR) proceedings that tend to facilitate a voluntary settlement, or in the traditional court setting. The vast majority of divorces are resolved before issues must go before a judge or jury, many through the use of ADR processes such as mediation, collaborative family law, and arbitration.

For instance, more and more couples are using mediation to divorce issues. And the popularity of mediation has shifted the role of divorce attorneys from representing their clients in a legal battle to acting as divorce mediation lawyers to help clients achieve mediation success. In this new role attorneys can serve as a lawyer coaches, legal consultants, and legal advisers in the divorce mediation process.

Is Alternative Dispute Resolution Right for You?

If you and your spouse decide to proceed with divorce, ADR is one option to resolving any ongoing disputes regarding property division, child custody, child support, etc. ADR may prove to be a beneficial tool in resolving your divorce and related issues, depending on factors such as 1) the degree to which you and your spouse are in dispute on key issues, and 2) your willingness to work together to resolve those issues.

ADR processes tend to be less adversarial and more casual than the traditional court setting, and may encourage and facilitate early settlement. With mediation and collaborative family law, you and your spouse (along with your attorneys) have an opportunity to play an active role in resolving key decisions related to the divorce, instead of having a third party (judge or jury) make those decisions. Rarely used in divorce cases, arbitration is a more structured ADR option, in which a neutral third-party makes decisions after hearing both spouses’ evidence and arguments. The arbitrator’s decision in a divorce case is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date. Most out-of-court divorce settlements will require some level of court approval.

Some states currently require divorcing couples to attempt some form of ADR before proceeding in family court, so it is a good idea to understand your options. You can learn about out-of-court alternatives for resolving a divorce and find help with your divorce.

Learn More About ADR by Talking to a Lawyer in Utah

Going through a divorce, whether inside or outside of a courtroom, can be an emotionally and legally difficult process. For this reason, it’s a good idea to contact a skilled divorce attorney who will be able to guide you through the process, explain the law, and recommend prudent next steps.

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

from Best Utah Attorneys https://bestutahattorneys.tumblr.com/post/174227934244

Gift or Loan Prior to Bankruptcy

When you’re struggling with debt, it’s natural to turn to friends and family for help. They know you and they trust you, making it simpler and easier to seek financial aid from them than from a bank. If your financial difficulties continue and you decide to file for bankruptcy protection, what happens to the friends and family members from whom you borrowed?

Gift or Loan Prior to Bankruptcy

Did you sign a promissory note?

The first question when considering money borrowed from family members is whether or not the debtor signed a promissory note. If you signed a promissory note, the money you received will be formally treated as a loan. A promissory note must include information identifying the borrower and the lender. It should specify the amount, the repayment terms, and what will happen if you don’t pay.

If there’s no note, that money may be treated as a gift. While you may feel bound to honor your word to Mom and Dad, the court wants a legal promissory note to mark a loan. Without the formal paperwork, it’s just a gift.

Loans in Bankruptcy: How They Work

If you have signed a promissory note, you’ll need to list the lender as a creditor on your bankruptcy schedules. They’re legally entitled to repayment the same way every other creditor is. They’ll also be treated just like any other creditor.

Most consumers file bankruptcy under either Chapter 7 or Chapter 13. Chapter 7 bankruptcy is a liquidation of your debts. You’ll use state and federal exemptions to protect most, if not all, of your property and the remainder will be sold to pay creditors. All creditors get a proportionate payment, so if Mom and Dad represent 5% of your debts, they’ll get 5% of the proceeds.

Under Chapter 13, the court will take your disposable income for payment of creditors for 3 to 5 years. Your disposable income is determined by taking your actual income and subtracting state and national standards for living expenses. You’ll pay your disposable income to the court and they’ll distribute it proportionally among your creditors.

At the end of both Chapter 7 and Chapter 13, the remainder of your unsecured debts will be discharged, or legally forgiven. You’ll no longer officially owe anything. You may, of course, choose to repay your friends and family on your own after the bankruptcy process.

Gifts in Bankruptcy: How They Work

If there’s no promissory note to mark your loan from friends or family, that money is considered a gift. You’ll have to disclose the gift on your bankruptcy schedules. If you’re the one who gave the gift, you’ll also have to disclose that on your bankruptcy schedules if it’s over a certain dollar amount, depending on the state in which you file.

Cash Gift in Chapter 7

What happens to a gift in bankruptcy depends on the timing. If you received the gift before you filed, the court will take it into account when determining what you can pay. If you received the gift after you filed for Chapter 7, the gift won’t be included in your bankruptcy proceeding.

Cash Gift in Chapter 13

If you received the gift during the Chapter 13 process, the answer is uncertain. If the gift happens before you file, you may be expected to pay more to your creditors. If you receive the gift between the date that you filed your case and the date that your repayment plan is confirmed by the court (that can take several months), the trustee in charge of your case may argue that you now have more disposable income and can pay more. If you receive the gift after confirmation of your payment plan, you’re more likely to be able to keep the gift without increasing your payments.

Note that if you’ve given any significant gifts before filing for bankruptcy, the trustee may be able to claw that money back. The court wants to avoid fraudulent transfers — ways of getting money out of the bankruptcy estate in order to keep it safe from creditors. That doesn’t have to be your intention in giving the gift; just giving cash to someone for a holiday or special occasion is enough to trigger a clawback. You may also trigger a clawback if you repay a loan from a friend or family member (with or without a promissory note) before you file for bankruptcy. That’s called a “preferential payment,” meaning that you chose to repay one creditor over another.

The court wants to ensure that all creditors are treated equally in the bankruptcy process, so that payment to Mom and Dad is going to get pulled.

Legal Documentation is Best Practice

Your family and friends are there to help you in times of need and you’re there to help them. Unfortunately, the legal system doesn’t care about familial or friendship bonds. The bankruptcy courts want to see formal legal documentation of your financial situation. So, whether you’re borrowing from or lending to someone close to you, consider creating a proper promissory note.

You can download templates online for free and it can save you a lot of trouble in the bankruptcy court. It’s also a good idea to have a formal note for the sake of your relationship with the other party. You can discuss the terms in advance and have a real plan in place for repayment. You won’t be left wondering if Cousin Eddie ever really meant to pay you back that $1,000 or if he’s just taking advantage of you.

If you’re struggling with debt and considering bankruptcy, speak to a local bankruptcy attorney. Bring all your financial documents and be sure to discuss any financial arrangements with friends or family members, whether or not they’re formally recorded in a promissory note. Your attorney can help you determine what will happen to those financial arrangements in the bankruptcy process and can work with you to decide on the best way to deal with your debts.

Free Consultation with a Utah Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. Come in or call in for your free initial consultation. 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

from Best Utah Attorneys https://bestutahattorneys.tumblr.com/post/174206310894

Utah Divorce Basics

Utah Divorce Basics

Utah allows for no-fault divorce, requiring only that the filing spouse allege irreconcilable differences between the parties. A spouse filing for divorce in Utah may also file for a fault divorce, citing any of the following grounds: bigamy, willful absence of the other party for more than one year, adultery, extreme cruelty, fraudulent contract, living separate and apart for more than one year, or incompatibility, among others.

The court may order, either on its own or at the request of one of the spouses, that the parties participate in reconciliation counseling for a period of up to three months or family counseling, if children are involved, for the entire divorce proceeding. If the court orders counseling, it will not finalize the divorce, annulment, or legal separation until the results have been reported to the court.

Residency Requirement for Divorce

The spouse filing for divorce (otherwise known as the plaintiff) must be a resident of Utah for at least six months before the filing.

Divorce Property Division 

Utah is an equitable distribution state, so the court will divide marital property equitably between the two spouses. Separate property is not subject to division–this includes property that each spouse had before the marriage, inheritances or gifts given only to one spouse, and separate property as agreed to in a prenuptial agreement.

Alimony

The court may grant either spouse an award of alimony, also called spousal support, based on factors that include the parties’ respective incomes and earning abilities, the duration of the marriage, and the standard of living established during the marriage. The court may also determine that one spouse’s earning capacity has been diminished or lost because of marital responsibilities, and award alimony accordingly. Support may be awarded in lump sum or as monthly payments.

Child Support

All parents are required to support their children regardless of the status of the marital relationship. The parents will also be required to provide healthcare for the child. Child support in Utah is calculated based on the gross income of the parents and the number of children that the parents support. A judge might make adjustments to the income considered if the parent is responsible for union dues, support for other children, or spousal support obligations. If the parents’ total annual income is less than $6,600 or more than $150,000, it is outside of the guidelines and the court must determine a support amount on its own. The court would use the child support schedule as a guideline and will always take into consideration the best interests of the child when making an order for support.

All child support payments are paid to the Department of Job and Family Services, which facilitates payments to the other parent. Child support payment information can be found at the website for Utah’s Department of Job and Family Services.

Child Custody

A judge looks at numerous factors when making child custody orders, including the child’s wishes, the parents’ wishes, the child’s relationship with both of the parents and the family members of each parent, and whether either of the parents have been convicted of a crime involving child abuse or neglect. The court may order that the child spend equal time with each parent, or establish one parent as the primary residential parent while granting the other parent visitation rights.

A residential parent who wishes to relocate with the child must notify the court in writing; the court will then notify the other non-residential parent of the intent to relocate. If the non-residential parent does not agree to the move or if the judge feels that the move would not be in the best interest of the child, there may be a hearing to determine whether the custody arrangement should be modified.

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 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

from Best Utah Attorneys https://bestutahattorneys.tumblr.com/post/174197080204

Utah Divorce

If you are getting divorced in Utah, make sure you have a good divorce lawyer on your side. Do you know what property you get to keep and what you have to split with your spouse? You may also have questions about who will be responsible for the marital debt.

Utah Divorce

Equitable Division of Property in Utah Divorce

Utah is an equitable distribution state, meaning that the marital property will be divided between spouses in a way that is equitable, or fair. The court decides what’s fair based on a set of factors that show what each of you contributed to the marriage and what each spouse will need to move forward after divorce. The division does not have to be equal to be considered fair.

The court will be involved in the division only if you could not work together with your spouse to resolve your property disputes. Throughout the divorce process, you will have opportunities to decide with your spouse how you want to split your property between yourselves. The court will usually accept a written separation agreement on how you want to divide your property. It is only if you cannot reach a compromise with your spouse that the court will step in and divide your property for you.

Marital Property Will be Divided

Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to each spouse separately, and how much there is of each. Generally, marital property is all property acquired or earned during the marriage, regardless of what the title says. Separate property is property you owned before marriage. It also includes some property you receive during marriage, like a gift, an inheritance, or personal injury award to you alone. If you exchange your separate property for new property during marriage, then that new property remains yours alone. There are circumstances, however, when an increase in the value of your separate property will be characterized as marital property.

For example, if you owned a vacation home before marriage that your spouse updated and remodeled during marriage, then the increase in that house’s value is marital property because it comes from your spouse’s efforts. On the other hand, if you bought an apartment in an up-and-coming neighborhood before marriage and it improves in value during the marriage simply because the rest of the homes in the area do the same, then that increase in value remains your separate property.

At divorce, the court divides only the marital property. It can’t award any property that was yours alone before or during marriage to your spouse. It can, however, consider all your financial resources – both your share of the marital property and your separate property – when deciding how much spousal maintenance (alimony) to award, if any.

Factors Considered in Dividing Marital Property

The types of property commonly divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, benefits, and debts. The court treats debts the same as any other real, personal, or intangible property. Before dividing an asset or debt, the court will have to characterize it as either marital or separate and then assign ownership or responsibility for it based on a set of factors designed to give an equitable result.

These factors include the length of the marriage; each spouse’s age, health, income, potential earnings or future financial circumstances; and property. The court also looks at how each spouse contributed to the acquisition of marital property and, for these purposes, the court treats a spouse’s efforts as a homemaker the same as monetary contributions. For the family home, if you have custody of your children, then you have a better chance of keeping that property, or at least the right to live there while you raise the children.

In addition to any other factor that might be relevant to the particular circumstances of your marriage, the court specifically considers what the spouses may have lost at divorce, such as an interest in an inheritance, pension rights, or health insurance. It also evaluates future losses the spouses face in terms of taxes.

Some assets aren’t easy to divide between two people. Something like cash, which is very liquid, can easily be split between the spouses. But an interest in a business isn’t as easy to divide. The court has the option to order a distributive award – a payment to balance out an uneven distribution of property – if it is impractical to divide a substantial asset.

Although fault in causing the marriage to fail is not part of the calculation, the court can award less of the marital property to you if you wasted marital assets. You can’t spend marital funds flying your lover to Paris, for example, without having to pay for it later. Likewise, you can’t sell, transfer, or otherwise encumber property in anticipation of your divorce. If you do, the court can penalize you for it during the division.

Spousal Maintenance Determination in Utah Divorce

Spousal maintenance is a payment from one spouse to the other to help sustain the recipient spouse after divorce. Similar to the division of property, the court’s order for spousal maintenance must be equitable. Payments can be periodic (monthly, for example) or in a lump sum, and for a set or indefinite period of time. A spouse can request temporary maintenance payments during the divorce process, the amount of which will be based on specific income guidelines.

When the court orders the divorce and the property has been divided, the court can also make a permanent maintenance award. In Utah, an award for spousal maintenance is based on many of the same factors as the division of property. Some other factors include the spouses’ level of education and earning capacity, the marital standard of living, and the needs of any children. The court also considers domestic violence during the marriage, which may have kept the battered spouse from seeking or improving employment. The court is also free to look at any factor relevant to the award of maintenance, such as a spouse’s ability to pay.

Free Consultation with a Divorce Lawyer

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 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

from Best Utah Attorneys https://bestutahattorneys.tumblr.com/post/174164961239

Step-Parent Adoption Information

Step-Parent Adoption Information

Being a parent is a rewarding, yet difficult job. When you’re a stepparent, the job can present additional challenges as you fill an important niche in a child’s life. Sometimes stepparents chose to further expand their role by adopting their stepchildren, although there are legal hurdles that must be crossed to formalize that relationship. This article will provide answers to some of the most common questions about stepparent adoption, including:

  • The legal requirements needed to complete the process;
  • The duties and rights of the birth parents; and
  • The eligibility of same-sex couple step parents.

I want to adopt my wife’s birth children. How difficult is it to adopt stepchildren?

It is not difficult as other types of child adoption, but there are still steps that must be taken. In most other child adoptions, the court requires home visits and adoption hearings, and there is a long waiting period. Because in a stepparent adoption the parties are related, the courts may remove these requirements in order to speed up the process. The main issue that most stepparents adopting a stepchild face is obtaining consent from the other birth parent.

Do I need consent from the birth parents to adopt my stepchild?

Yes. In all stepparent adoptions, the consent of the other birth parent is required. If that other birth parent’s parental rights have been terminated due to abandonment, neglect, unfitness, or failure to pay child support, however, then that birth parent’s consent is not required.

Getting consent from the other birth parent is often difficult because, in giving consent, that birth parent is giving up all of his or her parental rights. Of course, this means that that birth parent is giving up all parental responsibilities, such as paying child support, as well, so if the birth parent does not have a relationship with the child anyway, the stepparent may have an easier time getting consent. In some cases, the other birth parent may recognize that the stepparent adoption is in the child’s best interest. In those cases, consent is not hard to obtain.

If the other birth parent does not consent, can his or her rights be terminated, anyway?

There are ways to terminate the other birth parent’s parental rights, which would eliminate the requirement of his or her consent. Parental rights can be terminated if you can prove the other parent abandoned the child, is unfit, or is not the biological father (when the other parent is male).

  • How to prove the other birth parent abandoned the child: “Abandonment” means that the parent has not communicated with the child or provided financial support for the child. In most states, if the other birth parent has continuously failed to provide child support or has abandoned the child for a length of time (one year in most states), then his or her parental rights can be terminated.
  • How to show the other birth parent is unfit: If you have cause to show that the other birth parent is unfit, most state courts will conduct a fitness hearing. At this hearing, the court will deem the other birth parent unfit if she or he is abusive, neglectful, fails to visit, has a mental disturbance, is addicted to drugs or alcohol, or is incarcerated. Usually, when only one birth parent is deemed unfit, sole custody will be awarded to the other fit parent. In this case, stepparent adoption is easier, because the consent of the unfit parent is not required.
  • How to show the presumed birth father is not really the father: Showing that the other parent is not legally the father can also terminate that father’s parental rights. Each state has family laws stipulating who the presumed father is in certain situations, so be sure to check your own state’s laws. In ALL states, when a child is born to a married couple, the husband is the presumed father. If a man marries a woman after the birth of the child and the man is named as father on the birth certificate, that man is the presumed father. If you can show that the purported other parent is not the presumed father, you do not need to show unfitness or abandonment. You only need to show that he does not meet your state’s legal definition of “presumed father”. If you can do this, the court may terminate his rights. Thus, you wouldn’t need his consent for stepparent adoption. If the other parent DOES meet one of the requirements of your state’s “presumed father” definition, then either his consent will still be required, or you will need to prove abandonment or unfitness.

My partner and I are a same-sex couple. Can I adopt his child?

The U.S. Supreme Court’s 2015 Obergfell v. Hodges ruling overturned all state bans on same-sex marriage, making marriage equality the law of the land. In most cases, same-sex partners can adopt using the stepparent adoption procedures just like opposite-sex married couples can.

Free Consultation with Adoption Lawyer in Utah

If you have a question about a stepchild adoption or if you need a lawyer in Utah, 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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Wills and Durable Power of Attorney for Health Care

Wills and Durable Power of Attorney for Health Care

Unmarried couples living together often wish to share property ownership and make crucial life decisions together. There are several methods to share property rights that are recognized by the law, including joint tenancies, cohabitation agreements or “living together” contracts, and wills. This is estate planning. If couples want their life decisions to have legal validity, particularly decisions regarding medical treatment and finances, they should create what is known as the durable power of attorney.

Wills

A will is a legal document that details what an individual would like done with his or her property and assets after death. If you have property you wish your cohabitant to receive after your death, you need to describe the property in your will and indicate your wish. Otherwise, if you don’t have a will to detail your wishes, your property will pass according to what are called intestate succession laws.

In most states, intestate succession statutes automatically distribute your property to your closest family members, i.e. your spouse, children, parents, etc. Without a will, your cohabitant won’t receive any of your estate unless he or she is successful in arguing that you had a financial or property-sharing arrangement. Such claims are often difficult to prove, particularly with the lack of any formal documents. Drafting a will is generally the best way to ensure your property is passed to whom you wish.

However, if you and your cohabitant are joint owners of the property, you may wish to consider a joint tenancy with a right of survivorship instead of a will. Joint tenancies give the cohabitants the ability to share the rights and responsibilities associated with the property during their lifetimes. Then, upon the death of one joint tenant, title to the property automatically passes to the other, without the need to go through the formal probate process a will requires. There are other benefits to a joint tenancy, such as tax savings, documentation of commitment, and the sharing of debt.

Durable Powers of Attorney

When you create a “power of attorney,” you have authorized another person to make decisions on your behalf, particularly decisions that may have a legal effect. If you want the person making decisions for you (let’s say it is your unmarried partner) to be able to do so even if you become incapacitated and unable to make decisions for yourself, then you will have to make those legal powers “durable.” If you don’t explicitly make the power of attorney durable, they will end if you become incapacitated and your unmarried partner may have to go to court to ask the judge to continue managing your affairs.

Power of Attorney for Finances

There are generally two types of durable power of attorney, but this can vary depending upon the state you reside in. The first type, called the durable financial power of attorney, applies only to financial decisions. If you grant someone the durable financial power of attorney over your affairs, he or she will be able to manage your finances when you become unable, and must always act in your best interests.

Power of Attorney for Health Care

Second, there is a durable power of attorney for health care. While state regulations vary, the durable power of attorney for health care, otherwise known as a “medical directive,” allows you to name someone to direct your medical care if you become incapacitated. When creating a medical directive, you make what is called a health care declaration, or medical directive. The health care declaration sets out how you should be cared for in an emergency or if you are incapacitated. Specifically, you can direct which treatments you want to receive and which you do not. Life-prolonging treatments like resuscitation are often addressed in a medical directive, as are directions regarding quality of life and end of life treatments.

Once you have granted a durable power of attorney for medical care, the person you nominated to make decisions on your behalf will be able to:

  • Make medical decisions on your behalf, if you have not already made specific instructions regarding that decision in your medical directive
  • Enforce your health care decisions in court, if necessary
  • Hire and fire doctors and medical workers involved in your treatment
  • Have access to your medical records
  • Have visitation rights

Free Consultation with a Utah Estate Lawyer

When you need help with a will, trust, or estate, call Ascent Law for your free consultation (801) 676-5506. Because I am a probate lawyer, I can 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

from Best Utah Attorneys https://bestutahattorneys.tumblr.com/post/174133498124

Decided to File Bankruptcy

If you’re in the middle of a short sale or just about to do one, you probably have a lot of questions. What is the difference between a short sale and a foreclosure? And what happens if you might file bankruptcy, as well?

The benefit of continuing with a short sale after you’ve decided to file for bankruptcy will hinge on the type of bankruptcy you plan on filing.

Decided to File Bankruptcy

Short Sale and Chapter 7 Bankruptcy

If you have decided to file for Chapter 7 bankruptcy and are currently trying to sell a home via short sale, there is usually no reason to continue with the short sale. The purpose of a short sale is to relieve the borrower’s obligation to pay the difference between the sale price of the home and the mortgage amount when the property is “underwater” or worth less than what is owed.

Bankruptcy gives the borrower the option of surrendering the property back to the bank with no continuing obligation under the mortgage and no corresponding tax liability for the forgiveness of debt (usually a taxable event). In essence, surrendering a home in bankruptcy allows the borrower to simply give back the keys and walk away, leaving the purpose behind the short sale moot.

Bottom line: If you are going to file Chapter 7 bankruptcy, why deal with the stress of negotiating a short sale? However, if you still live in an area where homes are severely underwater and there is a backlog of foreclosures, it could make sense to go through with a short sale to get title out of your name. When a home is surrendered via bankruptcy, the bank still must foreclose to remove the owner’s obligation for HOA dues, etc.

Short Sale and Chapter 13 Bankruptcy

The analysis of a short sale bankruptcy is slightly different in a Chapter 13 setting. Chapter 13 bankruptcy allows the debtor to surrender a home, as well; however, any remaining deficiency judgment after foreclosure will be paid out as unsecured debt through the Chapter 13 plan.

Let us explain. Even though the property is being surrendered, the bank is still obligated to foreclose to clear title. The foreclosure process will result in a sale of the property. If the sale price is less than what is owed on the mortgage, a deficiency judgment results. Subject to state law, outside of bankruptcy, the borrower would be personally liable for the entire amount of the judgment. Generally, a Chapter 7 bankruptcy will eliminate all unsecured debt including deficiencies after a foreclosure.

By contrast, in a Chapter 13 bankruptcy, the deficiency between the foreclosure sale price and mortgage amount will be paid out as unsecured debt, at far less than 100%. Because the debtor will still be responsible to pay some of his or her unsecured debt through the plan, a short sale that slashes this debt before bankruptcy remains beneficial. Therefore, if a borrower can negotiate a short sale prior to filing for Chapter 13 bankruptcy, she will reduce her plan payment by reducing her unsecured debt.

Bottom line on Chapter 13 and short sales: Completing a short sale before this chapter of bankruptcy has the potential to lower your plan payments.

Before You File Bankruptcy Talk to a Bankruptcy Lawyer

It is always wise to consult with an experienced bankruptcy lawyer if you have questions, whether they be related to a short sale or foreclosure as it concerns your bankruptcy petition. Filing for bankruptcy can be complex, so you’ll want the assistance of a qualified attorney to guide you through the legal process and ensure you fill out all the paperwork correctly and disclose all your assets.

Free Consultation with a Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

from Best Utah Attorneys https://bestutahattorneys.tumblr.com/post/174110209799