It’s a common misconception that you can’t discharge tax debts in bankruptcy. It’s possible, but discharge is subject to a good many rules. Income tax debts might be eligible for discharge under Chapter 7 or Chapter 13 of the Bankruptcy Code, depending on how old they are and some other criteria. Chapter 7 versus Chapter 13Chapter 7 is sometimes called a “straight” bankruptcy because it provides for the full discharge of allowable debts. The bankruptcy court effectively takes control of your assets and liquidates them as necessary to pay off as much of your debt as possible. If you don’t have sufficient assets to cover all your debts, you’re no longer responsible for those unpaid balances after your bankruptcy is discharged. Chapter 13 involves a multiyear, court-approved payment plan to repay your debts to the extent possible. The goal is to pay them off in full, but some unpaid balances can be discharged. Tax debts are typically considered “priority” debts in both Chapter 7 and Chapter 13 bankruptcies. This means that they’re addressed and paid first when assets are liquidated in Chapter 7, and they must be included and paid in full in a Chapter 13 payment plan. Priority tax debts are not dischargeable in Chapter 13. Rules to Discharge Tax DebtsTax debts are associated with a particular tax return and tax year. The bankruptcy law lays out specific criteria for how old a tax debt must be before it can be discharged, as well as a couple of additional rules. If the income tax debt meets all five of these rules, the tax debt is dischargeable in Chapter 7 bankruptcies: • The due date for filing the tax return in question was at least three years ago. • The tax return was filed at least two years ago. • The tax assessment is at least 240 days old. • The tax return was not fraudulent. • The taxpayer is not guilty of tax evasion. Apply these criteria to each year’s tax debt to determine if that year’s unpaid balance is dischargeable through bankruptcy. Some of your debts might be while others might not. Tax debts that arise from unfiled tax returns are not dischargeable. This is an important distinction because the IRS routinely assesses tax on unfiled returns. These tax liabilities cannot be discharged unless and until the taxpayer files a tax return for the year in question. Again, this often covers the same ground as the first two rules. The IRS must assess the tax at least 240 days before the taxpayer files for bankruptcy. The IRS assessment can arise from a self-reported balance due such as your filed tax return, an IRS final determination in an audit or an IRS proposed assessment that has become final. The tax return cannot be fraudulent or frivolous. In other words, you can’t try to claim your dog as a dependent and then file for bankruptcy when the IRS calls you on it. You cannot be guilty of any intentional act of evading the tax laws. The bankruptcy petitioner is required to prove that the previous four years’ tax returns have been filed with the IRS before a bankruptcy can be granted. These four previous tax returns must be filed no later than the date of the first creditors’ meeting in a bankruptcy case. Additionally, bankruptcy petitioners are required to provide a copy of their most recent tax return to the bankruptcy court. Creditors can also request a copy of the tax return, and petitioners must provide a copy to them if asked. Common tax issues are encountered in Chapter 7 and Chapter 11 bankruptcy cases. Failure to fully understand the application of tax laws in the context of a Chapter 7 or Chapter 11 bankruptcy case can undermine the success of the bankruptcy proceedings, result in unanticipated adverse tax consequences, and even expose a party to personal liability. A Chapter 7 bankruptcy is a liquidation proceeding in which the debtor’s nonexempt assets, if any, are sold by the Chapter 7 trustee, and the proceeds are distributed to creditors according to the priorities established in the Bankruptcy Code. A Chapter 11 bankruptcy is a reorganization proceeding in which the debtor repays creditors through a court-approved plan of reorganization. Chapter 11 is ordinarily used by business debtors; however, individual consumers may be eligible to file for Chapter 11 bankruptcy under certain circumstances. A Chapter 11 case is typically pursued by individuals who continue to have substantial personal earning power but whose debts exceed the Chapter 7 and Chapter 13 limits. The U.S. Bankruptcy Code operates in conjunction with the Internal Revenue Code (IRC) and defers to the IRC for purposes of determining tax consequences of the bankruptcy process. However, unlike the Bankruptcy Code, the IRC is not primarily concerned with fairness, equity, or a fresh start for the). In addition, Congress itself acknowledged this tension between the IRC and bankruptcy laws in connection with the enactment of the Bankruptcy Act of 1978. “A three-way tension thus exists among general creditors, who should not have the funds available for payment of debts exhausted by an excessive accumulation of taxes for past years; the debtor, whose ‘fresh start’ should likewise not be burdened with such an accumulation; and the tax collector, who should not lose taxes which he has not had reasonable time to collect or which the law has restrained him from collecting”. As such, a debtor in Chapter 7 or Chapter 11 bankruptcy generally continues to be subject to applicable federal income tax laws despite the bankruptcy and must continue to timely file federal income tax returns and pay federal income tax due. (It should be noted that the IRC contains some statutory provisions that specifically address Chapter 7 and Chapter 11 bankruptcies; however, these provisions generally address specific, narrow tax issues in bankruptcy and are limited in scope. In addition, the debtor generally continues to be subject to state and local tax laws (such as sales and use, property, and franchise taxes), as well as other federal tax laws (such as payroll and employment taxes) during the bankruptcy process Prepetition and Filing Tax IssuesThe first set of tax issues arises in connection with the bankruptcy filing itself. Under bankruptcy law, when an individual debtor files a bankruptcy petition under Chapter 7 or Chapter 11, a separately taxable bankruptcy estate that consists of property formerly belonging to the debtor is created. The bankruptcy estate is administered by a trustee or by a debtor in possession for the benefit of creditors, and the estate may derive its own income and incur expenditures during the course of the bankruptcy process. The term “debtor in possession” refers to a debtor that keeps possession and control of its assets while undergoing reorganization under Chapter 11 without the appointment of a case trustee. Common Profiling Tax Issues for Bankruptcy EstateUpon the creation of the bankruptcy estate, the trustee or debtor in possession, as the case may be, becomes responsible for computing tax due and filing all required federal and state income tax returns on behalf of the bankruptcy estate during the bankruptcy case. A somewhat related profiling issue for a trustee relates to prepetition federal income tax refunds to which the debtor might be entitled. A Chapter 7 debtor’s undeceived prepetition tax refund becomes property of the bankruptcy estate upon the filing of the bankruptcy. As such, the debtor’s prepetition tax refunds are subject to “turnover” to the trustee. To obtain turnover of the debtor’s tax refund for the benefit of the bankruptcy estate, the trustee must follow specific procedural and notice requirements. The IRS will deny invalid or incomplete requests. Accordingly, it is important for the trustee to consult a tax adviser to ensure timely compliance with all applicable procedural requirements for obtaining turnover of the debtor’s prepetition tax refund. Common Profiling Tax Issues for Individual DebtorsThe individual debtor is required to file individual income tax returns during a bankruptcy case. The debtor is required to report income received, gains and losses recognized, and deductions paid other than income, gains, losses, and deductions that belong to the bankruptcy estate. One of the most important prepetition debtor tax considerations that is often overlooked relates to the individual debtor’s ability to make an election to close his or her tax year as of the day before the date on which the bankruptcy case begins. If this election is made, the debtor’s tax year, which otherwise would be a full-year period unaffected by the bankruptcy filing, is divided into two “short” tax years of less than 12 months, with the first tax year ending on the day before the commencement of the bankruptcy case, and the second tax year beginning on the commencement date and ending at year end. Depending on the individual debtor’s particular facts and circumstances, this election can result in substantial federal income tax savings to the debtor. Conversely, making the election under the wrong facts and circumstances might be disadvantageous to the debtor. To properly compute individual tax liability during the bankruptcy case and avoid exposure to accuracy-related IRS penalties and interest, the debtor must know the items that are properly included on the tax returns filed by the bankruptcy estate and the items that are properly included on the debtor’s individual tax returns. In addition, the debtor must understand how the creation of a separately taxable bankruptcy estate affects tax attributes carried forward from prior periods, such as net operating loss (NOL) carryovers, credit carryovers, and charitable contribution carryovers. Significantly, the debtor’s tax attribute carryovers from tax years ending prior to the commencement of the bankruptcy case can be used only by the bankruptcy estate while the bankruptcy estate is in existence. Thus, the debtor loses its tax attribute carryovers upon the filing of the bankruptcy petition. Depending on the debtor’s individual tax situation and the nature and extent of the debtor’s tax attribute carryovers, it might be appropriate to consider tax strategies to minimize the reduction or loss of tax attributes upon filing for bankruptcy. An additional profiling consideration for debtors relates to prior-year overpayments of tax carried forward from a prepetition tax year. Significantly, a federal or state tax overpayment carried forward from a prepetition tax year may become the property of the bankruptcy estate upon the filing of a petition for relief under Chapter 7 or Chapter 11. This means that the prior-year overpayment of tax will become available for credit against the bankruptcy estate’s tax liability (as opposed to available for credit against the debtor’s individual tax liability). If a debtor previously has elected to carry forward a prior-year overpayment, it might affect the timing of the bankruptcy filing. Similarly, if an individual debtor is considering filing for bankruptcy, it might affect the decision to request a refund of overpaid taxes (as opposed to electing to apply the overpayment to a later tax year). A somewhat related profiling consideration for the debtor and his or her bankruptcy counsel relates to prepetition federal income tax refunds to which the debtor is entitled. As previously noted, an individual debtor’s prepetition tax refunds are subject to turnover to the bankruptcy estate, which might affect the timing of the bankruptcy filing for debtors who are entitled to receive a refund of overpaid federal income taxes from the IRS. Similarly, the timing of the bankruptcy filing might also be affected if the debtor owes taxes from a prior period, because certain taxes are no dischargeable in bankruptcy. No dischargeable taxes include income and gross receipts taxes that are assessed within 240 days of the filing of the bankruptcy petition or that are assessed after the bankruptcy petition is filed. If a debtor owes income taxes from a prior tax period, it might be necessary to consider when the tax was assessed, as this might affect the timing of the bankruptcy filing in some cases. Significantly, the concept of assessment is a tax term of art. In addition, special rules might apply for counting the number of days that have elapsed since a prior assessment of tax. Tax Issues During the Bankruptcy CaseWhile a bankruptcy filing does not relieve the debtor of his or her usual duty to file income tax returns, it can markedly shift the nature, timing, and extent of the debtor’s obligations to pay taxes. In addition, the actions and financial activities of the trustee or debtor in possession during the bankruptcy case can create unanticipated adverse tax consequences for both the debtor and the bankruptcy estate. Common Tax Issues Encountered by the Chapter 11 Bankruptcy Estate Therefore, the debtor’s tax attribute carryovers from prior tax periods become available to offset the federal income tax liability of the bankruptcy estate during the bankruptcy case. In considering asset transactions, bankruptcy professionals often assume that if there are enough NOLs or other tax attributes to offset taxable income generated by the bankruptcy estate, there will be no federal or state income tax liability for the estate. However, under the alternative tax NOL rules the ability to use NOLs and other tax attributes to offset the estate’s taxable income may be limited for AMT purposes. The amount of the NOLs available for AMT purposes (ATNOLs) may differ from the amount of the regular tax NOLs, and generally only 90% of a taxpayer’s computed alternative minimum taxable income can be offset with ATNOLs. Thus, even though available regular tax NOLs might exceed the regular taxable income of the bankruptcy estate, the bankruptcy estate may not be able to fully use the estate’s ATNOLs, resulting in an AMT liability. If the bankruptcy estate incurs an AMT liability, the estate may be entitled to a minimum tax credit that it can carry forward to offset regular federal income tax liability in a subsequent tax year when AMT does not apply. Although the debtor’s tax attributes become the property of the bankruptcy estate upon the filing of the petition, any unused tax attributes remaining when the case is closed by the Bankruptcy Court revert back to the debtor in that year. Since the trustee is a fiduciary, it is important for him or her to properly track and carry forward any minimum tax credit generated by the bankruptcy estate to preserve those credits for use by the bankruptcy estate in subsequent tax years or by the debtor after the bankruptcy estate is closed. Common Tax Issues Encountered by the DebtorCancellation of debt is perhaps one of the most common tax issues encountered by debtors during bankruptcy and relates to the cancellation or modification of indebtedness and the attendant tax consequences to the debtor. Generally, a debtor is required to recognize cancellation-of-debt (COD) income to the extent that a debt is discharged for less than the amount owed. While the concept may seem straightforward in theory, its application to a debtor’s particular facts is rarely straightforward, especially in a bankruptcy. Another potentially complicating factor in considering COD income relates to situations where a debtor transfers collateralized property to a creditor in exchange for discharge of the debt that the property secures. In this situation, the transaction’s tax consequences differ significantly depending on whether the underlying debt is recourse or nonrecourse. In addition to the threshold challenges associated with identifying a debt discharge event and determining whether a debtor has realized COD income for federal income tax purposes, the general rule requiring recognition of COD income is subject to numerous exceptions, exclusions, and modifications that may provide some relief for the debtor. The most relevant of these are the exclusions of COD income for and insolvent taxpayers. Bankruptcy Lawyer Free ConsultationWhen you need help filing a chapter 7 bankruptcy, chapter 13 bankruptcy, or an tax help in bankruptcy, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with all aspects of bankruptcy law in Utah. We can help you.
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If you have been charged with a felony offense, contact an experienced Riverton Utah criminal defense lawyer. For felony cases, a judicial screening decision is made within a week or two of the initial appearance. Unlike the exparte review at the complaint stage, this screening involves an adversarial process where the prosecution presents witnesses and the defendant, now represented by counsel, may cross-examine. The defendant may present his or her own evidence but in practice rarely does so, preferring instead to learn as much as possible about the prosecution’s case without divulging his or her own defense. The magistrate may dismiss the charges or may allow only a lesser charge than that alleged in the complaint. Grand Jury Indictment and Prosecutorial InformationAnother screening stage for felonies is grand jury review to determine whether an indictment should be returned against a defendant. The federal system and about half the states give felony defendants a right to grand jury review. A grand jury is made up of citizens who are called to meet regularly to review cases during a set term of perhaps several months. The traditional size is twenty-three people, of whom a majority of twelve must agree in order to indict a defendant. This majority corresponds to the standard size of a trial jury. The grand jury review procedure is significantly different from trial and from the preliminary hearing; it is in fact more akin to a magistrate’s review of a complaint. Only the prosecution presents witnesses; the hearing is held in secret; and the defendant has no right to be present. ArraignmentIf the defendant is indicted by the grand jury, the indictment substitutes for the complaint as the formal charging document. The defendant is arraigned in the general trial court on this document and is asked to plead guilty, not guilty, or, where permitted, nolo contendere. A date is then set to hear pretrial and trial matters. Plea BargainingFrom the point of filing the complaint, and sometimes before, until trial, the defense counsel and prosecutor may engage in plea negotiations. This may involve either an agreement to dismiss some charges if the defendant will plead guilty to others or, in some jurisdictions, a promise of a lenient sentence or a recommendation for one in exchange for a plea of guilty. Challenges to the institution of the prosecution (such as challenging the makeup of the grand jury) or the sufficiency of the charging instrument, as well as requests for discovery and motions to suppress evidence, typically are made before trial. These motions may produce a dismissal for a defendant without the need for a plea bargain. The TrialAfter a defendant has been arrested and charged with a crime, if there has not been a dismissal (on a pretrial motion) and the defendant has not entered a guilty plea, the case goes to trial. Several features distinguish the American criminal system from the civil system. These include (1) the presumption of a defendant’s innocence, (2) the requirement of proof beyond a reasonable doubt, (3) the right of the defendant not to take the stand, (4) the exclusion of evidence obtained by the state in an illegal manner, and (5) the more frequent use of incriminating statements of defendants as evidence. Hire the services of an experienced Utah criminal defense lawyer to represent you in a felony trial. An American trial uses an adversarial process. The defendant is represented by an advocate representing his or her position, while the state’s prosecutors represent the state’s interest in punishing offenders. The sides argue in front of an impartial decision maker. In all fifty-two jurisdictions the defendant has a right to a jury trial for all felony offenses and for misdemeanors punishable by more than six months’ imprisonment. SentencingIf a defendant is convicted at trial or pleads guilty before a trial takes place, the court will set a date for a sentencing hearing at which both sides will present evidence relating to the appropriate sentence. While a few jurisdictions allow for sentencing by a jury in noncapital cases, most assign the sentence determination to the court. Typically, three different types of sanctions can be used: financial sanctions (e.g., fines, restitution orders); some form of release into the community (e.g., probation, unsupervised release, house arrest, drug rehabilitation); and incarceration in a jail (for lesser sentences) or a prison (for longer sentences). The most severe form of punishment is the death penalty, the availability of which is determined by each individual state. The legislature typically sets the maximum penalty available for an offense. It sometimes also narrows the sentencing options for an offense by excluding community release or by setting a mandatory minimum term of imprisonment. Increasingly, court sentencing decisions are restricted by guidelines that suggest a guideline sentence for offenders of a particular sort committing offenses of a particular sort. Some guideline systems are more binding than others. Criminal AppealA defendant generally has a right to appeal a conviction to the next higher court in the particular system’s judicial hierarchy. For misdemeanors tried in a magistrate court, this may mean a new trial in the general trial court. The right to appeal is not necessarily limited to those convicted at trial, however; a defendant who pleads guilty but who receives a more severe sentence than he or she expected, for example, may be able to appeal, challenging his or her plea. Appellate review of the appropriateness of the sentence is generally not permitted, although review of a deviation from sentencing guidelines may be. The most common objections on appeal concern admission of evidence claimed to be improperly obtained (generally the most successful claim), insufficient evidence to support the conviction, incompetent counsel, improper identification procedures, and improper admission of a defendant’s confession or incriminating statements. Postconviction RemediesAfter exhausting possibilities for appellate review, a convict who has not gained release may seek relief through postconviction remedies, sometimes called collateral attacks on conviction. Sometimes this is done through the writ of habeas corpus, but it is commonly governed by a more modern statutory procedure. After exhausting postconviction remedies in state court, state prisoners who have a constitutional claim may present the same claim for review by the federal courts under federal postconviction remedy procedures. In both state and federal systems the process of appellate review of a denial of a postconviction petition follows the same appellate course that the direct appeal did. LiabilityOffense definitions are typically made up of three kinds of objective elements— conduct, circumstance, and result elements— each accompanied by a corresponding culpability requirement of purpose, knowledge, recklessness, or negligence. Some doctrines will allow a defendant to be treated as if he or she satisfies a required element that is not in fact present, if the defendant does satisfy the requirements of a doctrine of imputation. For example, a defendant may be liable for an offense that requires conduct that the defendant did not commit if the conduct, performed by another person, is imputed to the defendant by the complicity doctrine. Finally, a defendant who is apprehended or stops before completing an offense may be held liable for an inchoate offense on the basis of his or her intention to commit or encourage conduct toward the commission. Objective Offense RequirementsOffense definitions consist of two kinds of elements: objective elements (conduct, circumstance, or result elements) and culpability elements (typically purpose, knowledge, recklessness, or negligence). Each objective offense element has a corresponding culpability element, and the culpability level may be different with respect to different objective elements of the same offense. Each offense definition typically has at least one conduct element, which satisfies the act requirement inherent in all criminal offenses. Most offense definitions include one or more circumstance elements as well, defining the precise nature of the prohibited conduct (e.g., having intercourse with a person under fourteen years old) or the characteristic of a prohibited result (e.g., causing the death of another human being). A minority of offenses contain a result element. Homicide offenses, personal injury offenses, and property destruction offenses are examples of this minority of offenses; they require a resulting physical harm in order to sustain a conviction for the offense. Other offenses, such as endangerment, indecent exposure, and falsification, may require the person to cause a risk of harm or to cause an intangible harm, such as alarm or a false impression. Causation RequirementWhenever an offense definition includes a result element (e.g., homicide requires a death), a causation requirement also is implied. That is, it must be shown that the person’s conduct caused the prohibited result. This required relation between the defendant’s conduct and the result derives from American notions of causal accountability. The rules of the causation doctrine are the means by which the law attempts to define the conditions under which such causal accountability exists. Requirements of CausationEstablishing a causal connection between a defendant’s conduct and a result typically has two in de pen dent requirements. First, the conduct must be a “but-for” cause of the result. This is sometimes called the factual cause requirement. Second, the strength and nature of the causal connection between the conduct and the result must be sufficient. Legal cause, or proximate cause, as this is sometimes called, requires that the resulting harm be “not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense.” Factual CauseConduct is a factual (but-for) cause of a result if the result would not have occurred but for the conduct. In other words, the conduct is a factual cause if it was necessary for the result to occur. The factual cause inquiry is essentially a scientific and hypothetical one. It asks what the world would have been like had the defendant not performed his or her conduct. Specifically, would the result still have occurred when it did? If the answer is no, then the defendant’s conduct was necessary for, and thus was a but-for cause of, the result. Proximate or Legal CauseIn contrast to the scientific inquiry of the factual cause requirement, the proximate (legal) cause requirement presents essentially a normative inquiry. Deciding whether a result is “too remote or accidental in its occurrence” or “too dependent on another’s volitional act” obviously calls for an exercise of intuitive judgment. The inquiry cannot be resolved by examining the facts more closely or having scientific experts analyze the situation. Ultimately, the decision maker must determine how much remoteness is “too remote” or how much dependence on another’s volitional act is “too dependent” for the result to have a just bearing on the defendant’s liability. Typically the foreseeability of the result following from the defendant’s conduct is a highly influential factor in a determination of proximate cause. Offense Culpability RequirementsA defendant’s conduct may be harmful; the victim may have a claim in tort; and fairness and utility both may suggest that the defendant rather than the victim should bear the loss for the injury. But without culpability in the defendant, causing the injury may be seen as lacking sufficient blameworthiness to deserve the condemnation and reprobation of criminal conviction. In place of the plethora of common-law terms—wantonly, heedlessly, maliciously, and so on— the criminal law defines four levels of culpability: purposely, knowingly, recklessly, and negligently. Ideally, all offenses are defined by designating one of these four levels of culpability with regard to each objective element. If the objective elements of an offense require that a person take the property of another, the culpability elements might require, for example, that the person know that he or she is taking property and that he or she be at least reckless about it being someone else’s property. An offense also may require culpability with regard to a circumstance or result beyond what the objective elements of the offense If you have been charged with a crime, contact an experienced Riverton Utah criminal defense lawyer immediately. Your liberty is at stake. Riverton Utah Criminal Defense Attorney Free ConsultationWhen you need help defending against criminal charges in Riverton Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
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Is Shoplifting A Felony In Utah? Divorce Lawyer Woods Cross Utah via Michael Anderson https://www.ascentlawfirm.com/criminal-defense-lawyer-riverton-utah/ Wills in Utah pass through the probate process in one of two ways: either formally or informally. The distinction is a matter of an in-court hearing. A more complicated estate that requires a hearing to open or close probate is formal. Probates that dispense with hearings because an estate has limited assets are informal. You cannot challenge formal probate after it is closed. However, if the probate process is informal, you can contest the will up to three years after the decedent’s death. The executor of the will decides whether probate will be formal or informal. • File a petition with the probate court to request a formal testacy proceeding. Under Title 75 Section 3-401 of the Utah Legislative Code, you can either ask the court to set aside an informal probate that has already been closed or you can ask that a probate in process be stopped from closing until you explain your objections to a judge. You must state your reasons for objecting in the petition. • Serve notice to all interested parties that you have filed a petition to either block or reopen probate. Title 75 Section 3-403 of the Utah Legislative Code lists exactly who you must notify, but in general, it includes the decedent’s spouse and children, any more distant relative who would be in line to inherit under Utah’s laws if the decedent had died without a will, everyone named in the will and the executor of the estate. Utah also requires that you publish a notice in a newspaper for anyone with rights to the estate who you may not know about or anyone whose current address you don’t know. • Appear at the testacy hearing when the court assigns a time and place. You might have a great deal to lose if you cannot convince the judge that your objection is reasonable, so even if you have represented yourself up to this point, you should consider hiring an attorney to appear with you in court. For instance, some people put clauses in their wills that if any of their beneficiaries contest and lose, they receive nothing, not even a nominal bequest they might have received otherwise. But under Title 75 Section 2-515 of Utah’s Code, you cannot be punished if you win your contest or have a legitimate reason for objecting. For example, a penalty clause is unenforceable if you are objecting to the will because you have a more recent, valid one in your possession. It is only enforceable if you claim that the decedent was incompetent when he made his will and his estate can prove that he was not. Grounds For Contesting A Will• Before learning how to contest a will, it is necessary to understand what constitutes a valid will. So the first question is – is there a valid will? • Expressly revoke all previous wills and codicils (Even if there are none); • Appoint a personal representative; • Appoint a guardian where minor children are (or may be) involved; • Provide a formula or method for distributing your property. Your will may also want to include information such as: Provisions leaving specific items to specific people; Wishes concerning funeral and burial arrangements; Waiving of any requirement of a bond for the personal representative. Additionally, the will should be signed by the testator (The person making the will) or in the testator’s name by an individual in the testator’s presence. It should also be signed by a minimum of two individuals who have signed after witnessing either the signing of the will or the testator’s acknowledgement of the will. When a will is successfully contested, the testator’s/testatrixes prior will is then considered to be his/her will. If there was no prior will, or if the will is lost and no one has an executed, and valid copy of the prior Will, the testator is treated as if he/she died intestate (without a will.) If the person is deemed to have died without a valid Will, the court will then distribute the estate to those who would take the estate assets on an intestacy basis. A noted previously, a will has to be in writing, in the correct form, and executed according to the laws of the State, in order to be valid. Most of the cases contesting wills emanate from issues dealing with improper form or execution of a will, and the majority of the time, involve wills that were prepared by individuals instead of attorneys. Reasons to Challenge or Contest a WillIt is typically very difficult to challenge a will. Approximately 99 percent of wills pass through probate without issue. Wills are seen by the courts as the voice of the testator, the person who wrote the will. Since that person is no longer here to speak about his or her wishes, the courts stick pretty stringently to the will. Anyone who may have an interest to gain from the will can challenge a will. The most successful challengers are usually the spouses, and the most successful grounds are that the person lacked testamentary capacity or that the person was unduly influenced or persuaded to write the will a certain way. If you challenge a will and are successful, it can be voided in its entirety or just in part. Sometimes, a prior provision, such as from a previous will can be reinstated. If the entire will is voided, the court will distribute the property as if no will had ever existed. This distribution follows intestacy laws, and is guided by familial relationships. Testamentary CapacityThe law requires that only adults 18 years of age or older have the capacity to create a will. Minors lack the capacity to form a legal will. However, in some jurisdictions, minors who serve in the military or minors who are married are given the right to make a will. Adults are presumed to have testamentary capacity. When litigation arises that challenges an adult’s testamentary capacity, it is usually on the basis that the adult has senility, dementia, insanity, was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of the will’s creation. More specifically, the person must understand: • The extent and value of the property; • Who he or she is expected to provide for and who the beneficiaries of the will are; • The disposition he or she is making and what a will means; and • How these elements relate in order to form a distribution of property. Fraud, Forgery, and Undue InfluenceYou can challenge a will by showing that the will was procured by fraud, forgery, or undue influence. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator. The term “undue influence” merely means that the person lacked the free will to bargain because of the manipulator. If the executor is trying to carry out the provisions of an outdated will, the newer will can trump this older will. Typically, there are requirements to destroy the older will. It is best to always destroy or show intent to void any outdated will, should one decide to change or update his or her will. Many people even state in the new will that the will is intended to trump and/or void out the previous will. This is why dating the will documents is so important. The court’s interest is to fulfill the wishes of the testator. If a valid legal will surfaces that is dated more recently than the will being executed, the court is likely to follow the newer will. Each state varies as to what constituted a voided and updated will, so be sure to check with your state’s laws. Sufficient and appropriate witnessesA typed hard copy of the will must be dated and signed by the testator in the presence of at least two adult witnesses. Vermont requires three witnesses. Most states require that the witnesses not be people who are named as heirs in the will. If in one of these states, a witness is named in the will; his or her gift may be voided, but not the rest of the will. About half of the states do allow handwritten, unwitnessed wills. These are called “holographic” wills and they must be written and signed entirely in the testator’s handwriting and in some states, they must be dated. Holographic wills are the easiest wills to challenge, because there are no witnesses. In the case of a holographic will, the court must be convinced that the entire thing is in the testator’s handwriting and that it was created to serve as a will of the testator. The Will’s ProvisionsEach state has its own laws about what a valid legal will must contain. Most states require that the will: • explicitly states that it is the testator’s (the person who created it) will; • includes at least one substantive clause, such as leaving a certain piece of property to a certain heir; and • appoints a personal representative (executor or executrix) to be responsible for invoking the terms when the time comes. In many states, the court will appoint an executor and enforce the will, even when the will names its own executor. Self-proving affidavitThere is no requirement that a will should be notarized. However, many people include a self-proving affidavit in their wills. This is a sworn statement that the witnesses sign in front of a notary public, which relieves the witnesses of having to come to court later to swear to the validity of the will Residence of the testatorAs long as the will was valid and legal according to the laws of the state where the testator had his or her permanent home, then the will is valid in any state where the testator dies. A will can be very beneficial to a descendant’s family and loved ones, but there are times when a will should be given a second look and possibly amended or scrapped. If you believe one of more will provisions shouldn’t be enforced, you may want to get the opinion of a legal professional. Get started today and find an experienced, local estate planning attorney. Not everyone can contest a will. A lawsuit brought to challenge the validity of a last will and testament can only be filed by certain people who would be personally and financially affected by the will’s terms if it were to be accepted by the court as it is. In legal terms, these people are said to have “standing.” Disinherited Heirs-at-LawAn heir-at-law is someone who is so closely related to the decedent that she would have received a share of the estate if the decedent had died without a will. Heirs-at-law have standing to contest a will. Property passes to heirs-at-law in a process known as “intestate succession” when someone dies without a will. In most states, this means his spouse or direct descendants inherit first. Direct descendants include his children or grandchildren. Parents and more distant family members, such as siblings, would only inherit if the decedent wasn’t married and left no living children or grandchildren. If a decedent was survived by three children but only two are provided for in his will, the third child should have legal standing to file a will contest. But this doesn’t necessarily mean she would win the case. She can’t challenge the will simply because she has standing and she wasn’t named in it. She must have cause. This means that she would have to establish to the court’s satisfaction that the deceased didn’t intentionally cut her out of the will, or that will isn’t valid for some other reason. Perhaps the deceased was under duress or was mentally incapacitated at the time he wrote it. The will might subsequently be thrown out due to its invalidity, and the estate would then be distributed as though the deceased had died intestate or without a will. Beneficiaries and Fiduciaries in a Prior WillAny person or entity named in an older will would have sufficient legal standing to contest a more recent will if he has subsequently been cut out of the recent document. He would also have standing if his share of the estate was reduced. Likewise, if the individual was named as fiduciary or executor of the estate in the first will, but he’s been replaced in a subsequent will, he should have adequate standing to challenge the more recent last will and testament. The same caution applies. These people would have to establish that the subsequent will is invalid for some reason. Who Can’t File a Will Contest?You most likely don’t have legal standing to file a will challenge if you weren’t named as a beneficiary in another will, or if you’re not an heir-at-law. This is the case even if you suspect that the will is invalid. No Contest ClausesA potential complication is that some wills include no contest clauses. These state that beneficiaries will lose the inheritance the will gives them if they unsuccessfully challenge it, losing the will contest in court. Otherwise, the court’s verdict would prevail. Of course, a beneficiary really has nothing to lose by challenging the will if she’s been cut out of it entirely. What Should You Do?Will contests are a complex area of law. Consult with a lawyer who specializes in this type of probate matter to find out if you have legal standing and if you have possible grounds—a supportable reason why the will should be overturned. Will Contest Lawyer In Utah Free ConsultationWhen you need a probate lawyer to contest a will in Utah, please call Ascent Law LLC for your free estate law consultation (801) 676-5506. We want to help you.
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Bankruptcy Lawyer North Salt Lake At What Value Should You Get A Trust For Estate Tax Purposes? Why Are Divorce Rates So High? via Michael Anderson https://www.ascentlawfirm.com/how-do-i-contest-a-will/ When Thomas Jefferson assessed the pros and cons of legitimating divorce shortly before the American Revolution, he came out firmly on the side of divorce. There could be problems, he conceded, with dividing marital assets, and although he assumed a man of any age could remarry with ease, he was concerned that a woman beyond a certain age might have difficulty finding a new partner. Still, he was convinced that the right of divorce would improve the status of women. In a world where the repudiation of a spouse had been a husband’s prerogative, access to divorce, he asserted, would restore “to women their natural right of equality.” That Jefferson envisioned divorce as a woman’s remedy while representing a husband bent on blocking his wife’s separate maintenance is not without some irony. Yet the natural rights language he used to support a woman’s freedom to sever the bonds of matrimony presaged the rationale he would use for severing the bonds of empire. “No partnership,” he declared in an argument that anticipated the Declaration of Independence, “can oblige continuance in contradiction to its end and design.” The parallels between marriage and government in Jefferson’s thinking are instructive in considering the legal status of women during the founding period. The sweeping legitimation of divorce in the wake of the Revolution presents a provocative alternative to the Constitution’s silences on women. That is not to say that women were written out of the Constitution. The stunning nature of this transformation is best appreciated when balanced against late-eighteenth-century English practices. Fault divorce as we have come to call it in the age of no-fault was a legal option that departed significantly from the English parliamentary and ecclesiastical precedents on which it was based. In its gender-neutral approach to the fault, in the completeness of its dissolutions, and in the access it afforded litigants, American divorce diverged dramatically from its English roots. Indeed, from both a substantive and procedural perspective, divorce law in the early republic was light years beyond its English equivalent. As Rousseau asserted in The Social Contract, families are the first models of political societies. That common maxim of Western political theory acquired a new and expansive meaning in the American setting. The words “brethren,” “consanguinity,” and “kindred” in the Declaration not only exemplify the easy inter changeability of family and state in Enlightenment thinking but also mark their transfiguration. Severing the bonds of empire entailed the radical separation of two peoples who were as intimately related as the members of one family. That family, to paraphrase the end of the Declaration, was no more, and the two peoples, once knitted together as one, were to regard each other now as enemies in the war that was already under way. As this imagery suggests, the Revolution predisposed Americans to think of themselves in declaring independence as dissolving one family and, at the same time, as constituting another. The significance of that image is even greater than has been generally recognized. The Revolution not only killed the king, metaphorically speaking; it separated the family. Although the Declaration conjures up a schism between male kinfolk, the image of the severed family could extend beyond filial and fraternal bonds. Like the Sons of Liberty, the warring brethren, and the founding fathers, husbands, and wives were prominent figures in the contemporary political imagination. Scholars exploring the centrality of consent in antipatriarchal representations of government have found that allusions to marriage only increased in the early republic as conjugal ties came to supplant filial ties in popular images of the state.9 Of course the limits of consent in Anglo American marriage law enabled marriage to serve as a conservative and stabilizing model for the new republic. Marriage, after all, was a public, prepackaged contract that was impervious to the wills of the contracting parties. To put it in political terms, you could say that a wife, having contracted for her ruler, was consigned to his rule for life. Americans of the post-Revolutionary era were not altogether comfortable with such an image, but neither were they prepared to abandon it completely. Both their discomfort with the traditional legal model of marriage and their reluctance to adopt a thoroughly contractual alternative illuminate the degree to which social contract theory intertwined with their perceptions of marriage and divorce. It is precisely because marriage in its consensual-but-indissoluble form stood as a far-reaching metaphor for the existing political order that it could serve as a convenient hedge against incipient political upheaval. A common analogy for the relationship between rulers and the ruled, it had been exploited by royalist defenders of Charles I to equate Parliament’s rebellion with the ludicrous prospect of a wife divorcing her husband. Gender was central to the effectiveness of the analogy. The figurative use of a divorce by a woman to signify the anarchic breaking of a sacred contract, thereby subjecting the action to ridicule, intimates that domestic rebellion enjoyed less credibility than political rebellion. But it also reveals parallels between the two rebellions in the grain of Anglo-American political thinking. The advent of the American Revolution turned the thrust of the analogy on its head, for just as divorce could serve to discountenance revolution, revolution, especially a successful one, could serve to legitimate divorce. Independence made the principle of indissoluble marriage more problematic. The Declaration of Independence endowed the women and men of the Revolutionary era with an elegant and eloquent example of how to dissolve a sacred contract. Resting as it did on its purported proof of English despotism counterpoised against colonial innocence, its argument unfolded very much like that of a petitioner in a divorce suit who piled up and compounded the alleged causes regardless of the statutory grounds. Sacred contracts are not dissolved casually, and the long and arduous route to the decisive stage of separation, ran the argument in the Declaration, was determined by the respondent’s cumulative and unremitting guilt. In unmistakably Lockean language, the Declaration averred that severing the bonds of empire was not undertaken for light and transient causes, but only in the wake of a long train of abuses and usurpations to which the petitioner had submitted patiently. So intense and sustained were these abuses—or so flagrant was the defendant’s breach of contract—that it was not just the right but the duty of the petitioner to seek a formal dissolution of the union. The juristic language, the familiar truths, the judicious caveats, the assembled facts—none of these could obviate the unbounded possibilities that lay at the heart of the Declaration, which was shaped so as to justify the right to begin all over again. What was written unequivocally into this other foundational text for the new nation was the principle of the second chance. If fear of endless dissolutions and reconstitutions ran barely below the surface of post-Revolutionary culture, it was assuaged by a measure of faith in the justness of the Revolution. The connections between the political ideology of a just revolution and the liberating potential of a just divorce code were strong, durable, and rooted in the seventeenth century; the Revolution only served to strengthen them yet no matter how cautious or conservative the legislative impulse to institute divorce was, legislators were applying liberal political theory to the institution of marriage. It is precisely because they grasped the radical possibility of extending notions of consent beyond the initiation of the marriage contract that they were reluctant to call divorce what it was without exhortations and evasions. It is precisely because they sensed the liberating and even anarchic potential in the notion of the second chance that they could inscribe lifelong monogamy into the preamble of a state divorce statute. Breach of contract, after all, was a pliant idea, and fault could edge into no-fault if grounds were too casual or too numerous. At issue, of course, is what effect did applying liberal political theory to the institution of marriage have on the status of women. Are we to read the suits women initiated against their husbands as acts of liberation? In most cases, the answer is probably no. We need to balance Jefferson’s sanguine prediction about the effect of divorce on women’s “natural right of equality” against the inequities of marriage and the legal system. Whatever the protections lifelong monogamy may have offered women, they were weakened with advent of divorce. As economic dependents confronting an all-male legal system that embraced the double standard, women suffered structural disadvantages at the hands of divorce law that are only too apparent. But we should not reject the liberation paradigm altogether. To the extent that suing for divorce was a legal option that depended on the voluntary, active, and even tenacious participation of female plaintiffs, it represented a reconfiguration of the marriage contract. The old common law legal fiction that husband and wife were one and the husband was the one could no longer hold quite the same authority once divorce challenged the male-dominated corporatism of marriage. In a world where the repudiation of a spouse had been a husband’s prerogative, we should not dismiss the import of a woman’s right to repudiate her husband in a court of law. One thing is certain: divorce by a woman no longer represented the anarchic breaking of a sacred contract. Utah’s Grounds for DivorceIn Utah, you can file for a divorce on the grounds of irreconcilable differences – no fault. Besides this ground, Utah law permits divorce on the following grounds: • The husband was impotent at the time of marriage and this was not known to the wife at the time of marriage • Either spouse engaged in adultery during the marriage. • One of the spouses has deserted and hasn’t come back for more than a year. • Failure to provide the other spouse with common necessities of life. • Other spouse is a habitual drunkard • Other spouse has been convicted of a felony offence • The spouse seeking divorce has been subject to cruel treatment resulting in mental distress of bodily injudge. • The spouses have been living separately for at least three years under a separate maintenance decree. • The other spouse is suffering from permanent and incurable insanity. This must be proved through expert medical testimony. An experienced Woods Cross Utah divorce lawyer can help you determine the grounds for your divorce. If your spouse has filed for divorce, you should immediately seek the assistance of an experienced Woods Cross Utah divorce lawyer. You have the right to a legal counsel and you should exercise this right. A divorce trial can be complex. In preparing a case for trial a lawyer creates a double helix of norms. One strand is dominated by narrative and the other by informal logical inference or argument. Narrative is the story of events, actors, backgrounds, actions, and motives organically related to express a moral-political significance, a human meaning. As one might hear it in the beginning of an opening statement, “This is a case about loyalty and betrayal.” “This is a case about keeping promises.” Argument is a logical pattern of propositions, in this case leading to assent to a final proposition (a “legal element”) that must be proven or disproved. Argument, like all rhetoric, can have multiple audiences. It is this double helix of narrative and argument that a lawyer calls “my theory of the case.” Concretely, it will have its most systematic expression in the combination of opening statement (narrative) and summation (argument). It is necessarily abstract. It omits much of the concreteness of what the trial will reveal; it is a “cut” into the evidence. Good lawyers understand what “cut” to make, which inspired simplification to pursue. They also understand that the trier of fact will come to understand that even the best “factual theories” are rather too simple. How does a Woods Cross Utah divorce lawyer reach that theory of the case? (1) the criminal laws against client perjudge and attorney subornation of perjudge and disciplinary regulations prohibiting attorneys from misrepresenting facts to the court or presenting known perjudge; (2) the calculations of the party or the attorney that misrepresentation is likely to be implausible; and (3) the settled moral dispositions of client and attorney not to lie. At times the client’s account of events also limits the stories that may be told at trial. At other times the client’s story may be fitted easily within a number of possible full narratives. At still other times the client’s initial story may be reshaped to allow its integration into factual theories that did not obviously present themselves. This last need not be a kind of manipulation that leads away from the truth, because the client’s initial recollection may suffer from distortions of perception, memory, communication, or a misguided desire to tell what he falsely believes to be a helpful story. At other times, since different narratives have different legal consequences, it is the client’s goals for the litigation that determine the theory. The process of developing factual hypotheses runs something like this: But the comparison of a story with a legal theory may reveal that the story does not explain what happened in a way that fully activates or defuses the legal theory. Or the comparison may reveal that the story is but one of a number of reasonably possible ways that the legal story may be told. In either situation one is likely to “conjure up” other stories about what happened that might activate the legal theory. These factual possibilities then become the bases for ensuing investigation. As investigation proceeds, the possibilities are limited by the need to maintain the credibility of the client’s basic story and by the increasing probability that there will be relatively more decisive contradictory evidence as the story becomes more fanciful. These further considerations, built into the trial, limit the rhetorician’s natural desire to tell the most plausible story regardless of its truth. Plausible but false stories are also forbidden by rules that prohibit the client from telling or the lawyer from presenting evidence of stories about whose truth they have serious subjective reservations, regardless of whether those stories can effectively be attacked at trial. There are also what might be called extrinsic reasons to choose one among a range of possible stories to the judge. One story, but not another, might permit a desirable remedy, such as injunctive relief or punitive damages, or avoid an especially unwelcome consequence, such as commitment to a state mental institution. One story but not another might allow for recovery against a certain defendant more able than another to compensate the plaintiff for his injury. One story but not another might pass muster under a statute of limitations. What allows the variation are variable facts subject to different plausible interpretations, such as “What was the defendant’s state of mind at the time this occurred: innocent, negligent, reckless, malicious?” The advocate will not usually be asking the question “Well, what was his state of mind?” but rather “What are the consequences of alleging it was this rather than that?” and “Do we have sufficient evidence to survive a directed verdict on this point?” and also tell a persuasive story to the judge while not violating prohibitions on suborning or assisting perjury or presenting false evidence? What must be recognized are the practical considerations that dictate the factual statements made, often in the language of past occurrence. The very story of “what happened” is determined in part by a judgment about what is likely to be done in response to one or another version. As John Dewey put it approvingly, it follows an “experimental and flexible logic” that is “relative to consequences rather than to antecedents.” Facts are, to this limited extent, purposes. After the initial interview with a client, a lawyer will set about the process of factual investigation. This is guided most generally by both strands of the double helix. If the client bears the burden of proof, the attorney must gather sufficient evidence that a secondary finder of fact, be it judge or appellate court, cannot say that there was insufficient evidence for a judge to have reasonably concluded that each element was established. He will also seek to gather evidence—testimonial, documentary, or physical—that directly supports the theory and theme of the case, concretely presented in opening statement, of which he or she actually hopes to convince the judge, the primary finder of fact. The attorney will follow a relatively straightforward hypothetico-deductive logic in his investigations. With regard to the theory of the case, he or she will ask this question: “If this fact (whether an element or simply a factually or normatively significant event) is true, what else would or might be true?” (“If my client really was at home, rather than at the crime scene, perhaps he made a telephone call of which there is a record or a witness …”). Just as in scientific inquiry, this process can never lead to anything but probability, for there may be alternative descriptions or explanations for the evidence. Even in the case of so-called direct evidence, say eyewitness evidence, the alternative explanation may be the lack of credibility of the witness. As a purely logical matter, this method, like all scientific method, commits the fallacy of affirming the antecedent (“If it was raining, the streets will be wet. But the streets are wet. Therefore, it was raining.” Quod non sequitur). This inevitable “flaw” in empirical inquiry is what makes it possible to produce a rhetorically compelling mass of evidence for a proposition that is quite false. The party who does not bear the burden of proof most often has his or her own version of events and will thus go through the same process as the party who does. And each will also seek to demonstrate that facts which ought to be true if the opponent’s theory of the case were true are in fact not so, thus seeking to “falsify” the proposition that the opponent seeks to establish. Indeed, the party who does not bear the burden of proof may present a purely “negative” case, simply attacking the opponent’s case and then arguing that he has not met his burden of proof, although the received wisdom is that presenting an alternative theory, if possible, is likely to be more successful. Factual investigation is thus theory-driven. Something may turn up in discovery or investigation that will cause the lawyer to revise his or her theory and redirect the inquiry consistent with a new set of hypotheses. After all, one of the bases of plausibility is the extent to which a theory is “supported” (to beg a thousand questions) by the evidence. But it is the felt necessity to present a full factual theory and theme—the concrete necessity to give an opening statement—that directs and structures the process. As the evidence accumulates, the lawyer will continue to evaluate the theory and theme of the case and so the opening statement. The most important decision a trial lawyer makes is the precise cut, the inspired simplification, to make into the mass of evidence. First, the theory must be at least sufficient as a matter of law. There have been occasions, dreadful no doubt to their victims, where a motion for a directed verdict has been granted after a trial lawyer’s opening statement. Second, the theory itself should have moral or political appeal, in that it provides the judge with a moral reason to rule favorably. Third, the story should not contain internal contradictions: the defendant cannot claim to have been in his mother’s house in Chicago and in his brother’s house in Boston at the same time. Fifth, the story should, to the extent possible, follow the “rule of probability.” A theory is superior to others if it portrays persons acting in ways that are consistent with deeply held common sense beliefs about the way persons “generally and for the most part” act under similar circumstances. Because of the overwhelmingly circumstantial nature of proof at trial, even in cases where there is direct evidence, the trier of fact must inevitably rely on common sense generalizations when assessing testimony. There is often simply no reason to believe that events occurred in a way inconsistent with the way things go, despite the universal belief that surprising things happen all the time. To the extent possible, the lawyer will try to avoid theories, however factually accurate he believes them to be, that ask the judge to accept as true a generally improbable event or action. Sixth, the theory of the case will also seek to portray the client acting in ways that exhibit good character and the opponent in ways that exhibit bad character. Most “triable” cases depend on witness credibility, and parties are most often witnesses. Parties who are shown to act in a trustworthy manner are most likely to be believed as witnesses. Seventh, the theory should also be supported by admissible, credible, and ethically presentable evidence. The rules of evidence may preclude the presentation of strong evidence that suggests one version of events rather than another. One theory, but not another, may rely on testimony given by the opposing party or a witness aligned with the opposing party, thus virtually eliminating issues of witness credibility. Eighth, the theory of the case must anticipate the opposing party’s positions and attempt to blunt the power of his or her theory and theme. The “truth” presented by each party’s theory is always already a comparative truth: it has been “chosen” because of its normative superiority over the particular theory that the party anticipates his or her opponent’s presenting. Somewhat similarly, a theory should not “open the door to” (render relevant) evidence that weakens the moral appeal of the case or portrays the client as untrustworthy. These are two of the ways in which the basic narrative contains game-theoretical features—in both cases what appears to be a simple factual narrative of what occurred has actually been chosen, in part, to anticipate and neutralize the expected evidentiary and normative strengths of the opponent. Of course, each party is shooting at a moving target, in that his opponent is engaging in exactly the same enterprise, and, in fact, anticipating what he is likely to anticipate and move to counter, and so on into potential infinity. The lawyer’s attempt to construct a case in which the private goals of the client can be defended or advanced has effects both on the client’s goals and on the legal language and culture in which those goals are enmeshed. The first step to a more adequate version of the opening statement is to understand that it presents to the judge what the evidence will show, not what the evidence will be. As such it is a complete “God’s-eye” narrative of the events that have led to the trial. The narrative is “omniscient” in that it includes, as episodes or facts, truths which could be reached only by inference from circumstantial evidence, most prominently, intentions, beliefs, and other states of mind. So long as these are stated as mere episodes in a narrative, and the reasons why the judge should conclude that these actually occurred are not marshaled in argumentative form, the lawyer will not be “arguing,” the most important legal restriction on opening statement. The opening has an “argument,” but it is like the argument of a novel, deriving from all the sources of plausibility that pure narratives can have. In triable cases, the battle for the judge’s imagination that begins with opening statement is not simply an argument about “what happened.” It is a battle about the frameworks within which events should be understood—whether, for example, through the lens of traditional morality, on the one hand, or that of psychiatry, on the other. It is a battle about what kind of “social ordering” the situation demands: legalistic, moral, bureaucratic, political. At another level, the opening invokes social and cultural values embedded in authoritative “scripts” and invites the judge to finish the story. For the opening statement is precisely the time in the trial when each lawyer presents, as a “vivid, continuous dream,” his or her narrative theory of the case. The story told in opening statement must achieve the optimum integration of the factors that serve as the criteria for the choice of the theory of the case. It will do this in a way that expresses or reveals the complex norm, inseparable from the details of the story he tells, and on which he relies. That norm, not otherwise expressible, is what gives the case life, allows it to “hang together,” to “ring true.” First, the witness is required to testify in the language of perception, a requirement which can be enforced by objections that the witness is offering “conclusions” or “opinions.” This makes it relatively harder for the witness to supply a version of events so highly interpreted that it is impervious to reinterpretation in light of competing theories of the case. Requiring a witness to recount, to the extent possible, a precise version of his perceptions will produce an account whose meaning is open to honest debate. Memories about perceptions are less likely to be products of purposeful reconstruction than are opinions. Not only must the witness testify in the language of perception, but he must also testify, in the main, in answer to nonleading questions. First, even a well-prepared witness has to choose, throughout the examination, what words to use in the description he gives. How he puts it tells the judge who he is to such an important extent that the formal evidentiary rules prohibiting “evidence of character” are almost trivial. Even testimony in the language of perception involves perceptual judgments and not merely the offering of sense-data. Certainly when the witness is allowed to offer an opinion, but also when he offers a perception (sometimes even without cross-examination), the judge can understand any gaps between how he wants to put it and how he is justified in putting it. The direct examiner understands her theory, her theme, and the requirements of legal adequacy. Though the use of nonleading questions makes it difficult to exclude any detail the witness believes important, the examining lawyer can ask questions that suppress irrelevant detail and encourage the provision of detail which contributes to the case. Simplification allows each lawyer to present only that evidence which bears directly on the core issues in the case, and to present an enormous amount of evidence that does so bear in a relatively short period of time. This is one of the reasons, again, that almost all the authorities warn against multiple or alternative factual theories. The shaping and organizing process is difficult enough in relation to one theory. It is probably impossible and certainly confusing when directed by alternative theories. By the use of topical organization, rather than purely chronological organization, a lawyer may question a harried emergency room physician only about the tasks she performed for a single patient, the plaintiff, so as to impart an impression of a careful and systematic attention to the plaintiff’s case. In general the lawyer here is not asking, “Did it happen this way?” She is asking, “Can the witness’s memories and convictions stand this interpretation within the ethical, evidentiary, and rhetorical context of the trial?” There is nothing automatic about the translation from the real-world event to the presentation in the courtroom. Most certainly, it is not the case that the most unrehearsed or spontaneous presentation is for that reason the most true to the underlying event. There is no neutral way in which language can simply mirror accurately an important real-world event. Any account will be given sequentially, and the “information” it contains will be doled out to the listener piece after piece. A human encounter that lasted a second may be enormously complex. A longer encounter may be simpler. We have no access to such an encounter except through description and narrative, the length and structure of which can in no simple, or pictorial, sense be “congruent” with the event it narrates. The medium cannot be the message. Our access to the human events on which trials focus is, as with all historical events, “mediated by meaning.” The task of the linguistic practices of the trial, its “consciously structured hybrid of languages,” working together, is to convey that meaning. Direct examination, then, conveys the witness’s understanding of the meaning of a past event, embedded in the perceptual judgments he makes. The rhetorical practices of the lawyer serve mainly to allow the witness to convey that meaning effectively. Pretrial interviewing and witness preparation usually allow the witness to sharpen his understanding of the meaning of the event and structure his testimony to convey it. It must be the witness’s conviction that ultimately structures the testimony, or the testimony will collapse under cross-examination. Divorce And Cross-ExaminationThe methods of cross-examination stand in stark contrast to the heavily characterized, fully God’s-eye, narrative of opening statement and the apparently simple narrative of direct. It is the most prominent of the deconstructive devices of the trial. What opening and direct examination build up, cross-examination can destroy or profoundly reinterpret. In any of its forms, the heart of cross-examination is the sequencing of short, clear, crafted statements that cannot plausibly be denied and which, in sequence, suggest an inference that supports, in one way or another, the cross-examiner’s theory or theme of the case. Cross-examination “questions” are statements. They do not seek information but rather serve to remind the judge of aspects of the truth of the situation that the witness has chosen not to reveal. Of course, this has significance for the judge’s assessment of the facts and also of the witness. Questions must be short because the assumption is that the witness disagrees globally with the examiner, wants to disagree. The questions are like watertight compartments on a ship: the examiner can lose one or two without total disaster’s engulfing him. Thus the attorney must keep each question limited to achieve damage control. Questions must be clear because the judge will and should hold ambiguity against the lawyer, and any ambiguity may fairly be exploited by a witness who, by the time cross comes around, is committed to a story now under attack. They must be as crafted as possible because they are designed to suggest a conclusion that the witness will resist. But the craft must not compromise the last feature of the cross examination question: that the witness simply not be able plausibly to deny the statement that each question contains. Finally, the entire purpose of the sequence of questions is to suggest to the judge a conclusion consistent with the examiner’s theory of the case. The key to effective cross-examination is control. In contrast to direct examination, the lawyer is permitted in cross-examination to proceed in leading fashion. Control is central because of the purpose of cross-examination. Its premise is that the witness (or the examining lawyer) has made a more or less conscious decision to testify in a certain manner, that he has cut into the great booming, buzzing confusion of his own relevant experience and decided to testify in one certain way. He has decided which details to include and which to exclude. He has decided, within the limits on the form of examination described above, to describe a scene one way and not another, to tell a story one way and not another. He has told his story in such a way as to obscure the real significance of aspects of the story. He has failed to describe spatial and temporal relations in a full way. He has presented a story that has the appearance of completeness, that is “autopoetic”—it appears to fully represent the reality about which he seeks to testify. But it is not complete; or at any rate the purpose of cross-examination is to demonstrate that it is not. After a successful direct, the deconstructive shock of an effective cross-examination can be stunning. While opening statement and direct examination are two different forms of constructed narrative, cross-examination is the first of the devices by which the trial deconstructs narratives. It is the succession of narrative construction and deconstruction, reconstruction and deconstruction, that lies at the heart of trial discourse. Deconstruction is the last word in the sequence because, I believe, it is rare that a judge will have accepted a complete narrative surrounding the events that have occurred. In a “triable case” there will often be large patches of uncertainty on past events. These patches are filled in by different sorts of (1) judgments of probability of purely historical events, (2) moral judgments, and (3) judgments of human and political significance. To anticipate, it is because judges are justified in saying they are unsure (by a degree of probability that is affected by the normative judgments concerning the importance of failing to find this rather than that, for this to go undetermined rather than that) that they can take a global moral approach to the case. In a well-tried case, there is often a large swath of this indeterminacy to be resolved, as we will see, through a practical-moral judgment, not a judgment of purely factual probability. To the extent that judges feel justified in saying they just don’t know what the sequence of movements or the precise meaning of the events was, the judge may move into a sphere where the conscious relationship between factual and normative is undefined, where judgments of fact, of specific personal culpability, and of moral or general public significance relate to one another without full conscious control. Cross-examination can move a judge into this sphere by showing that a witness who has told a lucid, coherent, and complete story has made a series of choices based on more or less self-interested or casual assumptions. Even questions of fact are issues for choice, usually made in an interested way. Cross-examination can shock a judge into understanding that there exists a series of (often unasked) questions the answers to which will transform the reliability and the meaning of a particular account. It can provide a judge with the experience of a radical reconceptualization of an account of what occurred, reminding them that, finally, they may rely only on their own assessment of what happened and how it should be judged. Ultimately, they must depend on their own insight and reflective judgment. Cross-examination may rely on alternative narrative construction. It may go over the same narrative terrain that the witness has traversed, but do so to exhibit the possibility of an alternative inference. This is relatively easy and can be extremely effective. On cross-examination the choice of words is that of the lawyer, an incourt actor who has not taken an oath to tell the whole truth. More important, the lawyer’s framing of questions is not guided, as with an honest witness, by a recollection of events relatively independent of the rhetorical exigencies of the trial. In this regard, the witness’s language of direct embodies a weakness and a strength. The weakness is that it is not highly crafted with an eye to the issues in the case but is constrained by the memory of those “brutally elementary data” which, let us say, a novelist would omit. But this is also its strength, or may be if the witness demonstrates respect for “those things we cannot change at will,” so enhancing his credibility. Cross-examination has precisely the opposite strength and weaknesses. It is obviously interested, something that a well-conducted redirect examination can show, and by conducting even the best cross-examinations, the lawyer shows herself a partisan. On the other hand, the cross-examiner has the novelist’s advantage of choosing the language of each “question” for full rhetorical effect, subject only to the requirement that the examiner’s statements not be subject to plausible deniability. Second, cross-examination can more directly suggest facts or theories that provide explanations other than those suggested on direct examination. It may present to the trier of fact a series of additional facts that change the significance of the story the witness has told. It may show that the perceptual judgments made by the witness, what he saw the events as, are analyzable, in the best empiricist traditions, into more atomistic sense-data. Those could have been synthesized in some other way, an alternative perception. The examination may further suggest that this alternative perception was rejected, consciously or unconsciously, because of interests of one sort or another that the witness had in “seeing it his way.” In what I call the “long cross-examination,” typically of a party opponent, the lawyer may simply require the opposing party to perform under circumstances where he is challenged with aspects of a situation he would prefer not to confront. How a person acts when he is not getting his way can be very revealing, especially when what is being challenged is the story he actually tells himself. Fifth, and somewhat more subtly, the witness can be asked questions the very answers to which reveal relevant dispositions. A witness can successfully navigate cross-examination if the factual and moral judgments he brings to the stand are sufficiently definite that they enable him to resist the impulse to say what appears advantageous under the shifting rhetorical grounds of cross-examination. This is very difficult for a witness who is a party or who believes in the justice of a party’s cause. Sixth, there is available to the cross-examiner an entire repertoire of methods of “impeachment,” the devices for undermining the credibility of the witness. These will attack his original perception, his memory of the event, his sincerity in swearing to tell the whole truth, the clarity of his mode of expression, and the ways, often subtle, in which these interact with each other. The examiner may draw admissions about the witness’s meager opportunity to observe because of lighting, brevity of time, confusion of the circumstances, his own fear, or significant distraction. His memory may be challenged by the examiner’s eliciting admissions about the length of time that has elapsed or the similarity of this incident to many others with which he may be confusing it. The examiner may question the witness’s sincerity by eliciting admissions concerning his affection for a party or his reasons to despise the opposing party. His attitudes toward the racial or ethnic groups to which a party belongs may be exposed. Any prior statements or actions of his that are inconsistent with his trial testimony may be explored. Any errors in his trial testimony, even on inconsequential matters, may be revealed. The witness will be required to reveal any conviction involving false statements or dishonesty, such as perjudge. Often the same persons are both witnesses and parties. Though a different set of rules applies to the impeachment of witnesses than applies to evidence probative of the alleged actions of parties, no judge is likely to distinguish sharply between the credibility of a party as witness and the deservingness of a witness as party. The exclusive moral rule of the relationship between the witness and the judge is one of truthfulness. A judge that believes it was mistreated by a party, prevented from doing its duty, will be inclined to think badly of that party. The judge knows, too, that a person’s attitude toward the simple factual truth, his accuracy or fairness, is not a bad indicator of that person’s fairness in general, his willingness to subject his own desires and projects to a standard beyond them, a trait that we generally call “decency.” The structure of the trial itself elevates the importance of witness and party credibility. For as the trial progresses through plaintiff’s rebuttal case, and sometimes defendant’s surrebuttal, parties are limited in presenting evidence that attacks or qualifies. The trial itself easily becomes the moral event to which the judge responds. Of course, much more could be said about cross-examination. It is one of the most fascinating of the rhetorical arts. But it can fairly be said that its general purpose is to allow the judge to look through the narratives of the witness’s direct examination. It is a method to break the selectivity, the willfulness, the manipulativeness that inheres in self-interested storytelling, or perhaps in any story told by men or women. In conjunction with the other devices of the trial, it may serve to reach toward a truth that lies beyond storytelling. Cross-examination can reveal other possibilities that, once identified, become, in light of all the evidence, more plausible than the one suggested. It may reveal not another factual possibility but a personal reality, in the way in which a witness who is also an important real-world actor performs an important public duty, the duty to tell the truth at trial, where the judge is relying on that truth in a matter of public significance. What a witness takes to be the “whole truth” of a situation says a great deal about who that witness is. When the judge imagines the events that have led up to the trial and casts in that real-world drama the particular people whom they have come to know as witnesses, the significance of the case may well be altered deeply. The constitutive rules of the trial elevate the importance of a past event. But they cannot elevate the importance, the significance, of that event, which can be reached only through narrative, over the importance of the way witnesses actually tell their stories. For the trier of fact, the undeniable reality is the trial itself. The trial’s the thing. The fairness of the way in which witnesses testify is often the actual basis for the judgment. Divorce Closing ArgumentsIn opening statement the lawyer provides a full narrative of the events that have brought the case to trial, a God’s-eye account. That account has the internal plausibility that comes from structural elements of the story, its consistency with factual and normative common sense generalizations, and it should invite the judge to finish the story so that the dimly perceived harmonies of the moral world are restored. By the time closing argument begins, each lawyer cannot but be aware that the enabling simplicities of opening have largely disappeared. The “vivid and continuous dream” is only a memory, now more distant than the patchy and ambiguous presentation of events that has emerged in the evidentiary phase. The judge has now seen the case from innumerable perspectives, and the lawyer’s task is to coax the judge back into seeing it sufficiently from his perspective, into accepting his “theory and theme” just enough that they will be prepared to act in precisely the way that the advocate urges. The closing argument is the time when the lawyer will address directly the difficult relationships between theory and theme, on the one hand, and the evidence, on the other. In the most effective closings, he will directly and reasonably deal with the inevitable factual and moral difficulties that a triable case presents. He will be both reconstructing the narrative he provided in opening and deconstructing the narrative offered by his opponent. Occasionally he may present a compelling argument; much more often he will be more than pleased to have discovered an appealing argument. And to anticipate the later chapters, in closing the lawyer is moving between the significance of events and their truth. Because closing is the final engagement in the battle for the judge’s imagination. A theory is accepted or rejected as a whole, both sides will be careful to stay “within” their theories and themes. Even the plaintiff’s rebuttal argument will be organized according to the structure of his affirmative case. Even the defendant, after an initial denial of the plaintiff’s or prosecution’s claims, will almost always move quickly to reconceive the case from his own perspective. Part of closing argument will be devoted to a small number of crucial “turning points” in the case, those key issues which, once resolved, cause everything else to “fall into place.” Trial lawyers know that these issues are not purely factual. And so, especially in the rhetorically most important moments of closing, the beginning and the end, the advocate will focus on “making the judge want to decide the case in your favor.” He may invoke the judge instructions at this time or he may revert to narrative—retelling a portion of the full story he told in opening, perhaps at a higher pitch of descriptive-evaluative intensity. Closing is argument as well because of the advocate’s ability explicitly to address and directly to criticize the opponent’s inferences, analogies, theory, and theme. In this mode, closing argument is, like much of cross-examination, a deconstructive device, in two different ways. First, it can attack the internal coherence, both factual and normative, of the opponent’s case, arguing usually that both the factual generalizations and the normative principles on which it is built are crudely overgeneralized and misstated. Second, it can attack the relationship between those generalizations and principles, themselves unassailable, and the evidence that this case falls within them. (Here the advocate may directly urge the lack of credibility of the opponents’ witnesses, their motive to lie, and their untrustworthy demeanor while testifying.) Here the advocate can say of his opponent’s opening, in effect, “Pretty story, but it just isn’t true!” That opening was the lawyer’s promise to produce evidence to establish the important assertions she made. The trial shows that the promise has been broken! It is worth anticipating here the complex ways in which the few rules surrounding closing situate the trial in a web of public meanings. It is the lawyer, not the client, who addresses the judge. He is prohibited from directly expressing his personal opinion on the justness of the cause or the credibility of the witnesses. He must accept the law as given in the instructions and may not paraphrase that law, misstate it, or urge the judge to disregard it. The analogies, allusions, and stories he tells in order to make both factual and normative arguments are all drawn from the judge’s common sense. The advocate is prohibited from addressing a judge by name or from urging the judge’s self-interest or lessening the responsibility the judge bears by mentioning the possibility of appeals or of commuted sentences. Closing dramatizes the transformation of private desire into public right. When “I want” becomes “I am entitled to,” the claimant must submit to the complex public norms by which the latter claims are determined. Just as in opening, the advocates in closing almost inevitably and performatively pose for the judge metalevel issues concerning what is important about the lawsuit. The trial is constituted as a “consciously structured hybrid of languages,” each quite different from the others. Together they build up an enormous, almost unbearable, set of tensions of different kinds. Both lawyers – the Plaintiff’s and the Defendant’s must locate the most powerful norms, from any source, that support the client’s case, and demonstrate how those norms are what this case is about. The trial is the crucible in which what is most important about norms and facts is determined. The law of evidence contains the most obvious set of rules that make the contemporary trial what it is. More easily overlooked, especially by scholars whose principal interest is the extent to which the law of evidence promotes or hinders accuracy in fact-finding, is the pervasive effect of the law of professional responsibility on the trial. Just as surely as the law of evidence, legal ethics, both as a set of precise disciplinary rules and as an expression of the ethos of the practicing bar, forms a decisive part of the constitutive rules of the trial. Someone who is interested in answering the question “What is a trial?” cannot leave them out of account. In Service to Client AutonomyFirst, except for the special case of the prosecution in criminal cases, the client decides whether or not to proceed to trial. After all, a “divorce lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter.” (The office of the prosecutor has unreviewable discretion not to file or to decline to prosecute a criminal case. A settlement in the form of a plea bargain must be approved by the judge.) This decision is a corollary to the lawyer’s duty to “abide by a client’s decisions concerning the objectives of representation” and to “consult with the client as to the means by which they are to be pursued.” It is the client who chooses. The lawyer’s task is to protect the client’s autonomy from the threat posed by the complexity and alien nature of the legal system. If the choice is to litigate, to go to trial, the lawyer becomes less the philosopher and more the fighter, or at least the very single-mindedly loyal diplomat. He or she puts partisanship, fellowship, competitiveness, and ambition at the service of presenting the most morally and factually compelling version of a client’s story. Or perhaps as one may say “position,” because the narrative will be the result of a set of conversations in which the story that the client claims to be true is confronted by the lawyer’s judgment about what is factually plausible and morally compelling. The result of this effort is the presentation of a case imagined and researched with the care that only the most delicate conscience and rigorous intelligence could muster. Thus a trial advocate may and often must make the most impolite or embarrassing suggestions, even if they are offensive to the powerful. By the law of professional responsibility, the client’s interests supersede every code of silence. They respect “those things that man cannot change at will,” and ensure that the trial is not only a political event. A lawyer may not herself make a false statement of material fact or law in the trial court. Nor may a lawyer offer evidence that he knows to be false. If a lawyer has offered evidence that he learns to be false while the action is still pending, he has a duty to “take reasonable remedial measures.” The most dramatic example occurs when the lawyer’s own client has testified falsely and refuses to correct the false testimony. In the civil context, and probably in the criminal as well, that includes “disclosing the existence of the deception to the court or to the other party,” even where the source of the lawyer’s information is a confidential communication with the client. There are difficulties surrounding “what a lawyer knows,” but the authorities address that problem with a common sense that tries to avoid sophistry, on the one hand, and a too-cavalier readiness to find a client, especially one charged with a criminal offense, to have committed perjury, on the other. Nor may a lawyer “counsel or assist” a witness, including a client, to testify falsely. Once the lawyer knows that potential testimony, however helpful, is false, he may not offer the testimony or prepare the witness to present it effectively. Even if he only “reasonably believes” the evidence is false, he may choose not to offer it. A client or a witness may have consciously or half-consciously manufactured a distorted story based on a misunderstanding of the legal standards. For this reason, or in order to motivate a client to remember important details, a lawyer may be justified in explaining the legal issues. Furthermore, the processes by which a lawyer can reconstruct events from a limited memory bear a close resemblance to those by which he can construct events—both involve the use of imagination and common sense to determine the probable course of events. When reconstructing events, the lawyer bothers to inquire seriously whether that is actually the way things happened; when constructing events he is concerned only whether the story is plausible and not obviously inconsistent with other credible evidence. Woods Cross Utah Divorce Lawyer Free ConsultationIf you have a question about divorce law or if you need to start or defend against a divorce case in Woods Cross Utah call Ascent Law LLC (801) 676-5506. We want to help you.
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What Is The Punishment For Drunk And Drive? Bankruptcy Lawyer North Salt Lake via Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-woods-cross-utah/ Shoplifting is intentionally taking merchandise from a store or retail shop without permission and without paying for the items. The person must intend to permanently depriving the business of its merchandise. Many items can be targeted for shoplifting, some more than others; some items that are commonly shoplifted may include: • Clothing; • Baby items; • Electronic devices, especially smart phones and laptops; • Food items, especially meats; • Alcoholic beverages; • Cosmetics; and/or • Medications. Generally speaking, many shoplifters target small, more expensive items that can easily fit in a pocket or a purse. Some shoplifting efforts may involve more than one actor, with one person acting as a distraction while the other conducts the shoplifting. A person can be charged with either misdemeanor or felony shoplifting. Whether a shoplifting charge is a form of felony theft depends on state law. A shoplifting charge may be listed under petty theft or another type of larceny. States typically decide if shoplifting is a felony according to merchandise value. In order to be classified as felony shoplifting, the stolen property must often exceed a minimum price. The specific value depends on state law. Generally, a felony shoplifting charge involves monetary amounts ranging from $500 to $1,000. Thus, an individual who is charged with taking $100 of merchandise will likely be charged with misdemeanor shoplifting. Another person charged with take $501 worth of merchandise will likely be charged with felony shoplifting. Shoplifting certain items can result in felony shoplifting charges, regardless of the value of the property that was stolen. This is referred to as a categorical felony. The value of the merchandise that was taken does not matter when it includes: • Explosives; • Firearms; and/or • Incendiary devices. Thus, if a person shoplifts even a relatively inexpensive firearm, they may be charged with felony shoplifting. The penalties can be even more severe if the person has prior felonies on their record (some persons who are convicted of a felon may not be allowed to possess a firearm). Also, in some states, the types of items taken and value of the stolen property do no matter if a person has a prior criminal history. For example, some states increase a shoplifting charge to a felony if the person has been convicted of two or more theft offenses. Also, stealing any explosive or devices that can be used to create explosives can become a federal issue. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) monitors any sales, transportation, possession, and any stolen goods that can be used for bomb making. This can include obvious things like plastic explosives to less obvious, like ammonium nitrate which is often used in fertilizer (as well as in bomb making). Stealing any of the items monitored by the ATF can turn a simple issue of shoplifting into a question of terrorism. Misdemeanor Charge and Felony ChargeMisdemeanor charges are usually less serious than felony charges. The main difference between the two lies mostly in the way that they are punished. Misdemeanor charges often involve a sentence of up to one year maximum in a jail facility. They may also involve criminal fines as well (usually up to $500 maximum). The amount of the fine typically depends on the amount of property that was stolen. In comparison, felony charges are typically punishable by sentences of longer than one year in a prison facility (not a county jail facility). They may also involve criminal fines as well, which will be higher than those for criminal misdemeanor charges. For a felony shoplifting charge, the criminal consequences can typically involve several years in prison, as well as thousands of dollars in criminal fines. Some crimes may be classified as wobblers. This means that they can either be considered as a misdemeanor charge or a felony charge, depending on the circumstances of the case as well as the judge’s discretion. Some states also have degrees of shoplifting felonies, which indicate levels of seriousness of the crime. Felony degrees may range from one to five, with fifth-degree felony being the most serious. In fact, approximately 90% of the population has shoplifted in their lifetime. These days, it’s a lot easier to get caught than it was 20 years ago. With the installation of cameras all throughout retail stores. It’s pretty difficult to get away with it. Statistically, adolescents are the biggest shoplifters, accounting for nearly 50% of all shoplifters. However, they only steal one-third as much as their adult counterparts. Adults are more creative and ingenious when it comes to shoplifting. Thieves have been commonly known to hide merchandise inside coats or bulky clothing. Women have gone so far as to feign a pregnancy so they could hide merchandise inside maternity clothing. People commonly hide stolen goods inside purses, backpacks and other shopping bags. In fact, people have been known to hollow out books and stuff merchandise into a fake cast. Although some shoplifters are career criminals, others steal out of desperation. Many of them steal necessary items such as food or items for their children. They are put in a situation where they have to decide between going without a necessity and taking a risk. These risks can have grave criminal consequences when the people are eventually caught in the act. How a person is charged in a shoplifting offense depends upon the value of the items stolen. If the value of the goods was less than $400, it will be charged as misdemeanor petty theft, which is punishable by up to six months in jail and fines ranging from $50 to $1000. Where the value of the property stolen was worth more than $400 the person will be charged with grand theft, which can be charged as either a misdemeanor or a felony. The decision will be ultimately left up to the prosecution as how to charge you. This is normally dependent upon any past convictions on your criminal record. The penalty for grand theft can be up to one full year in jail or state prison; a large price to pay, especially if you had a momentary lapse in judgment. The best scenario is to be charged with an infraction. An infraction is less serious than a misdemeanor and the penalty for infraction petty theft is less than $250. Infraction petty theft is applied to theft cases involving merchandise valued below $50. If you were arrested for shoplifting, your best defense is to hire a criminal defense attorney as soon as possible. The last thing you want is to have to spend a number of months in jail over a mistake. Any type of conviction will result in a permanent criminal record which will haunt you for the rest of your life. Getting caught shoplifting is not only an embarrassing experience, it can have significant consequences. The laws of many states issue hefty fines and even jail time for certain shoplifting offenses, and Texas law is no exception. In Utah, shoplifting offenses fall under the general definition of “theft” in the Texas Penal Code. In addition, shielding or deactivating instruments used for shoplifting are also expressly prohibited under state law. The nature of a shoplifting charge and the associated penalty will depend on a couple of factors, including the value of the property stolen, and whether you have previously been convicted of any type of theft. The definition of “theft” under the Utah Crimianl Code includes a variety of offenses, including shoplifting. Theft is defined as the unlawful appropriation of property with the intent to deprive the owner of the property. It’s also a crime to possess, manufacture, or distribute shielding or deactivating instruments used for shoplifting. • Shoplifting property valued at less than 100 is a Class C misdemeanor. • Shoplifting property valued at $100 or more but less than $750 is a Class B misdemeanor. • If you have been previously convicted of any grade of theft, shoplifting will be a Class B misdemeanor if the value of the property stolen is less than $100. • Shoplifting property valued at $750 or more but less than $2,500 is a Class A misdemeanor. • Possession, manufacture, or distribution of a shielding or deactivating instrument is a Class A misdemeanor. • Shoplifting property valued at $2,500 or more but less than $30,000 is a state jail felony. • You will also be charged with a state jail felony if you have two or more prior convictions for theft, and the value of the property stolen is less than $2,500. • Shoplifting property valued at $30,000 or more but less than $150,000 is a felony in the third degree. • Shoplifting property valued at $150,000 or more but less than $300,000 is a felony in the second degree. • Shoplifting property valued at more than $300,000 is a felony in the first degree. Penalties• Class C misdemeanor – fine of up to $500. • Class B misdemeanor – fine of up to $2,000 and up to 180 days in jail. • Class A misdemeanor – fine of up to $4,000 and up to one year in jail. • State jail felony – fine of up to $10,000 and between 180 days and two years in jail. • Third degree felony – fine of up to $10,000 and between 2 and 10 years’ imprisonment. • Second degree felony – fine of up to $10,000 and between 2 and 20 years’ imprisonment. • First degree felony – fine of up to $10,000 and between 5 and 99 years’ imprisonment. State regulations are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching. A shoplifting charge may seem like a mere annoyance, but in the state of Texas it can have significant repercussions. If you have been arrested for shoplifting, it’s important for you to understand your legal rights. Civil LiabilityAdult shoplifters can be sued by the merchants they victimized for actual damages, plus additional damages up to $1,000. Parents or guardians who have a duty of control and discipline over a child shoplifter can be sued for actual damages up to $5,000. Pretrial Diversion Programs and Plea BargainingSome counties provide pretrial diversion programs, which allow certain individuals accused of first-time and low-level crimes to avoid criminal prosecution. Diversion programs typically require completion of a probationary period and other court-mandated requirements, such as restitution, community service, and counseling. Upon successful completion of the requirements, the criminal charges will be dropped. If diversion programs are not available, the accused may be able to arrange a plea bargain with the prosecutor assigned to the case. The prosecutor may be willing to reduce the charges or the sentence, in exchange for a plea of guilty. How to Get Shoplifting Charges DroppedThere are a few ways to possibly have your shoplifting charges dropped. When you are arrested, the prosecutor may file criminal charges if they believe they have enough evidence to support a conviction. If during a preliminary hearing a judge decides there is sufficient evidence to support a conviction, the case will be allowed to proceed. It is important not to confuse dropped charges with dismissed charges. Your charges can be dropped before they are filed or after they are filed. However, your charges can only be dismissed after they are filed. If your case is allowed to proceed, the offense may be dropped if the victim asks the prosecutor to drop the charges. The lack of cooperation by a victim may mean that the prosecution does not have enough evidence to convict you of shoplifting. However, even if a retail store did request that the prosecutor drop the case, the discretion to drop the case lies with the prosecutor. Additionally, under certain circumstances, the arresting officer may have the discretion to drop the charges. There are several reasons why a shoplifting charge may be dropped: • The evidence needed to build the case is flimsy • Eyewitness accounts conflict with the evidence • Necessary evidence was illegally secured without a warrant • Your constitutional rights were violated (e.g., the police coerced you into a confession after you asked for an attorney) This is not an exclusive list, and there are other variables that a prosecutor may consider before dropping charges. A plea bargain is another way that your offense may be dropped or reduced. A plea bargain is when an offender and a prosecutor agree to reduce or drop charges in exchange for the offender pleading guilty to a certain offense. Typically, the defendant will plead guilty to a lesser crime than the one they committed. For example, pleading guilty to misdemeanor theft instead of felony theft may be an option in severe cases. Work with a Utah Criminal Defense Attorney to Negotiate Dropping Your Shoplifting ChargesIf you or a family member was arrested for shoplifting, you should contact an experienced criminal defense attorney. Here are the top things you should do if you find yourself facing a charge of retail theft: • Do not flee store security: Most times, the police are not involved in an initial arrest for shoplifting. Instead, the defendant is likely to first be confronted by unarmed private security officers. If one is guilty of shoplifting and is confronted by store security, there is a strong temptation to resist or to flee. This is a mistake. Firstly, if the detention is illegal, you have the right to challenge it in court. However, if you resist or run from the private security officers, this is strong evidence of guilt. Also, this sort of dangerous uncooperativeness makes an informal resolution of the case much more unlikely. • Do not make custodial statements to police: Once you are turned over to police, you will feel compelled to offer an innocent explanation for this big mistake. In almost every case, what the defendant thinks is an innocent explanation will turn out to be an admission of guilt. As set forth above, retail theft is committed in a number of ways. Thus, do not talk your way into a conviction. If the police attempt to question you, simply invoke your right to counsel. Once you do so, the law requires that all police questioning cease. • Hire an experienced criminal defense lawyer: As should be clear from the penalty structure set forth above, a charge of retail theft can be a serious criminal offense. You should be represented by counsel, and it should not be your general practice family lawyer. Given the potential consequences, you need to be represented by a criminal defense lawyer who is familiar with pretrial motions challenging the legality of the dention and other matters. • Make restitution: Many times if a person is arrested for shoplifting, this means that he or she did not get away with the merchandise. Under those circumstances, there may not be any restitution due; however, if the police tell you that the merchant is seeking restitution, you should make restitution immediately. • Make sure that you appear in court: Obviously, if the charge is criminal in nature, you must appear in court because if you fail to do so the judge will issue a warrant for your arrest. If you decide to plead guilty, make sure that your lawyer requests that the judge consider expunction if you successfully complete your sentence. If the charge is a municipal ordinance violation, you are not required to appear in court, but if you fail to do so, the judge will find you guilty by default. This, too, is a mistake. Many times, especially in municipal court, the prosecutor will offer the defendant deferred prosecution agreements which may allow you to avoid a conviction altogether. Shoplifting Attorney In Utah Free ConsultationWhen you need to defend against a shoplifting charge in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
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Can You Look Up A Will Online? via Michael Anderson https://www.ascentlawfirm.com/is-shoplifting-a-felony-in-utah/ Each year many Americans end up having to seriously for bankruptcy for no fault of their own. They have no idea about the bankruptcy court procedure and the forms to be filed. All that they know is they need to go to court and the court will do something to help them. That’s not how it is. The court will only help if you follow the process and submit the correct forms. The court will not magically make your debts disappear. If you are facing bankruptcy or you are overburdened with debt and you don’t know what to do, speak to an experienced North Salt Lake Utah bankruptcy lawyer. Time is very important. The earlier you speak the better it is for you. With each passing day, the debts will mount. The creditors and debt collectors will keep calling you. Once you file for bankruptcy these calls will stop. If your creditor or debt collector calls you after they know you have filed for bankruptcy, they are violating the law. An experienced North Salt Lake Utah bankruptcy lawyer will ensure that once you file for bankruptcy, your creditors and debt collectors won’t call you. If they continue to call you, you can take action against them with the help of your Experienced North Salt Lake Utah bankruptcy lawyer. Why bankruptcyYou may come across many “experts” who will advise you that there are viable alternatives to bankruptcy. These alternatives may work in some cases. Generally, these alternatives require you to make a huge payment upfront. Also, the alternatives need the consent of the creditors. The creditors are legally not required to agree to the alternative. Each creditor has to be dealt with on an individual basis. Your creditor may not agree to the alternative. In a bankruptcy your creditors do not have much say in how the debts will be paid. It’s the bankruptcy court that will determine the payments. In effect when you go to a creditor to renegotiate or use any other alternative to bankruptcy, the ball is essentially in the creditor’s court. Whereas in case of bankruptcy, the creditors can’t do much. Also, they cannot contact you for the debt once you have filed for bankruptcy. They can’t take any action to recover the debt because of the stay. If a creditor violates the stay, you can take action against the creditor. Individual DebtorsHow long your bankruptcy proceedings will take will depend on your bankruptcy chapter. As an individual debtor, you can file under chapter 7 or chapter 13. Chapter 7 is also called liquidation. As the name suggests, it is essentially a liquidation process. Once you file a chapter 7 bankruptcy, a bankruptcy trustee appointed by the bankruptcy court will take over all your non-exempt assets and the assets will be sold to pay off your creditors. Some of your assets are exempt assets and the trustee will not touch them. Before you file a Chapter 7 bankruptcy consult with an experienced North Salt Lake Utah bankruptcy lawyer to know if you can file a Chapter 7 bankruptcy. Individuals also file for bankruptcy protection under Chapter 13. A chapter 13 bankruptcy is referred to as a reorganization. It essentially means that you reorganize your debts and pay off your creditors over a period of time. You have to submit a plan to the bankruptcy court explain how you intend to pay off your creditors. Once the plan is approved, you start making the payments. Sometimes you may be better of filing under Chapter 7 than under Chapter 13. An experienced North Salt Lake Utah bankruptcy lawyer can help you determine the right chapter for your bankruptcy filing. Filing under the wrong chapter can prove costly. Don’t take chances. Seek the advice of an experienced North Salt Lake Utah bankruptcy lawyer. When you are filing for bankruptcy, you will be stressed out and may not be in a position to take sound decisions. However, the decisions you take at this stage can play an important role in the outcome of your bankruptcy petition. Let an experienced North Salt Lake Utah bankruptcy lawyer assist you with the important decisions at this stage. You will not regret it. Chapter 7If you have a few big assets like a home that you are seeking to protect, you should consider filing under Chapter 7. However, speak to an experienced North Salt Lake Utah bankruptcy lawyer. Getting the paperwork done in time is very important. Because you have defaulted on the payments, your creditors may have sold the account to debt collectors. You will have to list the debts that you owe and to whom. This information must be given to the bankruptcy court at the time of filing of your bankruptcy petition. Do not leave out any debts. A debt that you have left out will not be discharged and you will continue to remain liable for that debt. Your experienced North Salt Lake Utah bankruptcy lawyer can help you trace your debts and link them to your creditors. Once you file a Chapter 7 bankruptcy proceeding in Utah, the bankruptcy court will review your papers to ensure that everything is in order. However, from the moment your petition is submitted to the court, your bankruptcy protection starts. Your creditors can no longer contact you. Your experienced North Salt Lake Utah bankruptcy lawyer will send notices to your creditors that you have filed a Chapter 7 bankruptcy. Should any creditor call you after you have filed a Chapter 7 bankruptcy in Utah, refer the creditor to you lawyer who will deal with the creditor. Chapter 13 BankruptcyIf you have a lot of assets and you have a steady source of income, you should consider a Chapter 13 bankruptcy. Speak to experienced North Salt Lake Utah bankruptcy lawyer to know if a Chapter 13 bankruptcy is an option for you. In a Chapter 7 bankruptcy, the bankruptcy trustee takes over your assets and sells them to pay off your debts. Unlike a Chapter 7 bankruptcy, in a Chapter 13 bankruptcy, the debts are paid off over a period of time and you continue to retain your assets. The most important part of a Chapter 13 bankruptcy is the repayment plan. Your experienced North Salt Lake Utah bankruptcy lawyer will assist you prepare a repayment plan that you can afford. The plan essentially lays down how you will pay off your debts over a period of time. The First StepIf you are a Utah resident and you want to file for bankruptcy, speak to experienced North Salt Lake Utah bankruptcy lawyer today. Bankruptcy can help you get rid of serious credit problems. Bankruptcy is essentially a Federal law. By law, before you file for bankruptcy you must undergo credit counselling. This counselling must be done within 180 days from the date on which you have filed for bankruptcy. If its done before that, you will have to get it done again. Not all credit counselling programs qualify for this purpose. The credit counselling must be done by an organization that is approved by the Bankruptcy Trustee. The objective of this counselling is to help the debtor create a budget, manage money and use credit wisely. Bankruptcy Means TestSpeak to experienced North Salt Lake Utah bankruptcy lawyer to know more about the Means Test. Once you have completed the credit counselling, you must pass the Means Test if you want to file a Chapter 7 bankruptcy in Utah. If you do not qualify for a Chapter 7 bankruptcy in Utah, you can file under Chapter 13. If the Means Test determines that you have enough money to pay off at least a portion of your debts, you will not qualify for Chapter 7. The idea is to ensure that Chapter 7 is used by debtors who cannot pay off any of their debts. If your household income is below the median Utah family income, you may qualify for filing under Chapter 7. If you do not qualify for filing a Chapter 7 bankruptcy in Utah, don’t worry. Consult an experienced North Salt Lake Utah bankruptcy lawyer. You can still file for bankruptcy protection under Chapter 13. Court Supervised RepaymentIn a Chapter 13 bankruptcy, the debtor submits a repayment plan to the court. If the court approves the plan, the debtor pays off the debts over a period of time under the supervision of the court. Under the time the repayment plan is in operation, your financial activities will be closely monitored by the bankruptcy trustee. If you want to buy a new car or spend on a luxury item during the operation of the repayment plan, speak to experienced North Salt Lake Utah bankruptcy lawyer. Such spending can incur the wrath of the bankruptcy court. However, your experienced North Salt Lake Utah bankruptcy lawyer may be able to get you permission from the court to buy a new car. If during the operation of the repayment plan, there is a substantial increase in your income, you may be required to divert the increase towards the payments under the plan. In a way, it will help you complete the payments faster and get a discharge sooner. Creditor MeetingThe creditor meeting is the time you will come face to face with your creditors after you have filed for bankruptcy in Utah. Never attend these meetings alone. Always have an experienced North Salt Lake Utah bankruptcy lawyer accompany you to the creditor meetings. It can be an emotionally charged moment for you – coming face to face with your creditors, including some who have been calling you every day asking for payment. Many of them may object to your bankruptcy filing saying that you have the means to pay off your debts. Do not speak anything during the hearing unless you are asked to do so by the trustee. If the trustee asks you any questions, let your experienced North Salt Lake Utah bankruptcy lawyer answer them. If you want to answer them yourself, talk to your attorney before answering them. This creditor meeting will be the only time you will have to attend the bankruptcy court. Don’t let this one court attendance spoil your chances of a successful bankruptcy. Hire the services of experienced North Salt Lake Utah bankruptcy lawyer. Bankruptcy DischargeOnce all your debts are paid off, you will get discharge. You will no longer be liable for these debts. In a Chapter 7 bankruptcy case in Utah, a debt is discharged the moment the bankruptcy trustee pays off the creditor from the sale proceeds of your assets. In a Chapter 13, the debt is discharged after it is paid as per the repayment plan submitted by you and approved by the bankruptcy court. Not all debts can be discharged by bankruptcy. Certain debts will survive bankruptcy. An experienced North Salt Lake Utah bankruptcy lawyer will review your circumstances and explain to you which of your debts can be discharged and which of your debts will survive bankruptcy. Generally, you cannot discharge certain court ordered payments like child support. Student loans also survive bankruptcy. However, you may be able to get some benefits in bankruptcy with regard to your student loan debt. If you owe money to the IRS, chances are those debts will survive bankruptcy and you will have to deal with the IRS to settle those debts if you cannot pay them off in full. Seek Legal AssistanceBankruptcy is a serious event. Don’t take it lightly. There are many websites and books that offer directions on how to file for bankruptcy without an experienced North Salt Lake Utah bankruptcy lawyer. Don’t fall for the bait. Trying to navigate the complex maze of bankruptcy law can be like finding a needle in a haystack. Always hire the experienced North Salt Lake Utah bankruptcy lawyer. The lawyer is a professional and knows the bankruptcy law. Should your bankruptcy proceeding hit a roadblock, the lawyer will ensure that you can overcome that roadblock. What you need to keep in mind is that an experienced North Salt Lake Utah bankruptcy lawyer is your best friend when it comes to bankruptcy protection. The lawyer will not just file your bankruptcy petition in the bankruptcy court. He will stand by you all the way. Even after you get a discharge, an experienced North Salt Lake Utah bankruptcy lawyer will be there to advise you on how you can rebuilt your credit after bankruptcy. North Salt Lake Utah Bankruptcy Lawyer Free ConsultationWhen you need legal help for a bankruptcy in North Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with: Chapter 7 Bankruptcy. Chapter 12 Bankruptcy. Chapter 11 Bankruptcy. Chapter 9 Bankruptcy. Chapter 13 Bankruptcy. Adversary Proceedings. Discharge Problems. Obtaining Relief From the Automatic Stay. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Divorce Lawyer South Salt Lake Utah Can You Look Up A Will Online? How To Stop A Wage Garnishment via Michael Anderson https://www.ascentlawfirm.com/bankruptcy-lawyer-north-salt-lake/ We hear on the news day after day that people are getting into accidents while under the influence of alcohol. How can we as a society prevent alcohol-related accidents among people who are dependent on alcohol? Is there a sociological approach? Alcohol dependency is a problem that affects all of us. Therefore, we all have to do what we can to limit its negative impacts on society, whether taking a friend or family member to alcohol rehab centers or volunteering on a regular basis as a designated driver. The addiction to alcohol is chronic and progressive in nature, (Alcohol Research and Health). This disorder is a disease like any other medical conditions that needs medical interventions or treatments. Punishing offenders of alcohol induced infractions is only a part of the solution. For one thing, people who get into car accidents as a result of alcohol use will still continue to drink if they don’t get proper treatment for their alcohol dependency problem. To make matters worse, many alcoholics don’t believe that they have an alcohol problem until it is too late, either they lose their jobs or they get into a severe motor vehicle accident as a result of their alcohol dependency. Our society should put in place a system that regulates the amount of alcoholic beverages an individual can consume at a bar in a given day. No one person should be given the opportunity to consume more alcohol than is legally allowed, in regards to blood-alcohol levels. Our society is making it too easy for people to get into trouble by drinking too much. If one beer is enough to prevent people from going over the legal drinking limit, then one beer should be the norm for anyone who enters a bar and orders beer. Our current stance is that people should be held accountable for their actions and therefore should take responsibility for such actions. The sad truth is that such strategy is not working because if it was we wouldn’t be hearing about so money alcohol-related motor vehicle accidents. It does not make much sense to always allowing people the opportunity to drink as much as they want knowing that such actions will put people at increased risk for getting behind the wheel while under the influence of alcohol. A preventive strategy should be put into place. It is always easier to prevent the problem than to cure it. One should realize that it is much more difficult for a person under the influence to make wise decisions. We should not leave it up to the drunken person to make the decision as to whether to get behind the wheel or not. We should instead create an environment where people will have the opportunity to make such decision with a clear head. Our society allows people to drink as much alcohol as they want at bars with no restrictions. Most of the time people drink because they refuse to face stressful situations in their lives. So, they go to the bar and drink beer after beer to get drunk, so they can temporarily rid themselves of their worries at home. We as a society should help these people by not making it so easy for them to drink as much as they want, especially at a bar. Granted, it is next to impossible to control how much a person drinks at home. However, it is very possible to control how much a person is allowed to drink at a bar. It is much better for society when a person drinks at home because that person is not compelled to get behind the wheel of a car and drive home, as that person is compelled to do while at a bar. People have no choice but to get behind the wheel of a car and drive home when at a bar, especially if that person’s judgment is impaired as a result of excessive amounts of alcohol intake. We should not totally ban alcohol. Such actions did not work in the roaring twenties when alcohol was totally prohibited. Doing so would not work today. There were many illegal smuggling of alcohol going on in those days as a result of prohibition. The ban of alcohol in the 1920s gave rise to another problem-drugs. So, totally eradicating alcohol is not the answer, but regulating it could be a very good option in limiting the amounts of alcohol-related accidents on our streets. Drink and drive accidents are common in every state. But, intoxicated drivers are also punished severely for causing drunk driving accidents. In some cases, the state establishes that the driver lost control over the steering wheel because he was under the effect of alcohol or drugs or the driver contravened the per se law, that is, the driver’s BAC or blood alcohol content was above the legal limit. Drink and drive problems are taking a heinous shape nationwide. But, stringent laws are also being implemented in to reduce drunk driving accidents. In certain states, DUI arrests give the officer the right to ask the intoxicated person to undergo an alcohol evaluation test, urine test or breath test to find out if the person was actually drunk while driving. The intoxicated person accused in drinking and driving issue has no right to decide on any particular test or discuss issues with the attorney on submission of test samples. If you are prosecuted of any drunk driving accidents you will be left with no other alternative but to undergo any test as ordered by the officer of the law. Voluntary license revocation of the intoxicated driver has been made mandatory in certain states in countries like the United States. Sometimes, along with license revocation the accused is sentenced to jail for a considerable period of time. For drink and drive issues, the cops can actually revoke you’re driving license and even arrest you. When your license is revoked you are given a receipt. Remember, you can apply for a temporary license because you are not forbidden to drive when a cop takes away your license. However, your temporary driving license is rendered null and void once a suspension order comes from DWI courts, sobriety courts and accountability courts, which have been established to punish offenders. Habitual Substance Offender Statue this can cause jailing of the accused for a period of more than 8 years. Felony DWI involves infringements within five years of the present charge. Contact a lawyer if you are arrested for causing drink and drive accidents. Your lawyer will find out if post-conviction relief can be of any help to you. If you are arrested for rash driving in a state like Utah and your alcohol evaluation tests prove that you are above the legal limit, contact a lawyer adept in handling DUI cases immediately. It is also imperative to know if the person is familiar with drink and drive rules and has handled cases on drink and drive accidents in Utah previously. Remember, each state has different rules for penalizing drivers accused in drinking and driving cases. You also need to consider your DWI insurance claims if you are caught for drunk driving. If the insurance company comes to know that you have been accused for rash driving, you will have to pay a higher premium for being marked as a reckless driver. Always remember the best way to avoid being getting tangled in drink and drive problems is to avoid driving when you are under the effect of alcohol in the first place. Several penalties exist as a punishment for defendants arrested for DUI or driving under the influence of alcohol or drugs. These penalties include: – Mandatory jail time – Community service hours – Probation – Suspension of license and; – Loss of driving privilege If the defendant is found guilty as charged, he or she will be asked to pay for a fine. It is as an addition to the classic punishments under law. Generally, there are two major fines that you may face after the sentencing of your DUI case namely – – Criminal fines and; – Restitution The difference of the two lies in the fact that the criminal fines are under the criminal case while the other fine, which is the restitution, is ordered under a civil case. Furthermore, criminal fines or one they call punitive DUI fees is established by a specific state laws and the judge hearing the drinking and driving (DUI) case. The very purpose of the punitive DUI fines is to prevent future committal of the same crime by the defendant and to punish the defendant for the crime he or she has committed. The amount paid as fine varies depending on the facts uncovered during the case and the location or state where the DUI offense took place. First offense DUI fine ranges from $500 to $1000. However, in cases of multiple DUI arrests and convictions, the defendant may face for up to a $15,000 or higher fines. Additional fines from the department of motor vehicles may also be imposed. Also aside from the fines, your driver’s license may also be revoked or suspended. If you want to file for an appeal or motion to have an administrative hearing in an attempt to rescind the case, you should also shoulder all the cost related to this. DUI Lawyer Free ConsultationWhen you’ve been charged with drunk driving in Utah, please call Ascent Law LLC (801) 676-5506 for your free consultation. DUI. Criminal Charges. Sex Crimes. Drug Crimes. Assault. Battery. Rape. White Collar Crimes. Expungements. And More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Why Should I Get A Legal Separation? Corporate Lawyer Woods Cross Utah via Michael Anderson https://www.ascentlawfirm.com/what-is-the-punishment-for-drunk-and-drive/ Maybe. Was the will filed with the court in Utah? If the will is on file in the Courts in Utah; then yes. If it wasn’t; then no. Numerous individuals realize they need a will, however not every person comprehends what a will is or what it does. A great many people realize that they ought to have a will, however many don’t have the foggiest idea what a will is and how it functions. A will, now and then called a “last will and confirmation,” is a record that expresses your last wishes. It is perused by a province court after your passing, and the court ensures that your last wishes are completed. What a Will DoesMost people use a will to leave instructions about what should happen to their property after they die. However, you can also use a will to • Name an executor. • Name guardians for children and their property. • Decide how debts and taxes will be paid. • Provide for pets. • Serve as a backup to a living trust. You shouldn’t try to use a will to: • Put conditions on your gifts. (I give my house to Susan if she finishes college.) • Leave instructions for final arrangements. • Leave property for your pet. • Make arrangements for money or property that will be left another way. (Property in a trust or property for which you’ve named a pay-on-death beneficiary.) How to Write a WillYou can compose a will yourself, or you can contract a legal advisor to keep in touch with one for you. On the off chance that you keep in touch with one yourself, you’ll need to locate a cooperative attitude layout to support you. To get familiar with finding and utilizing a cooperative attitude layout read Utilizing a Will Format and Kinds of Will Formats. •Do you need to name a few degrees of agents? •Do you need to name more than one agent to cooperate? •Do you need to name gatekeepers for your youngsters or their property? •Do you need to make a trust for your kids, with the goal that they get your property when their more established than 18? What’s more, a cooperative attitude making format will enable you to know when you should see a legal counselor for assistance composing your will. For instance, you should converse with a legal counselor on the off chance that you: •Want to exclude your companion or kid. •Are stressed that somebody may challenge your will. •Want to give cash and care to pets after your passing. •Want to control what befalls your property long after your passing. •Are stressed over home duties. Most probate records are open record, accessible to anybody needing data on a perished individual or their property. The area probate representative keeps probate records that you can look face to face, or you might have the option to see some data on the web. Looking through probate records can uncover procedures in which you may be by and by intrigued, for example, a relative whose domain is being probated. It’s likewise a decent method to do parentage research and assemble data about your family. Probate/home documents incorporate the procedures of all business identifying with: •the demonstrating of a will, in situations where there was one, or •to a definitive settling of a domain in occurrences where the individual kicked the bucket intestate (without leaving a legitimate will). •copy of the will, •death testament, •inventory of assets, •claims from loan bosses, and •general family and money related data. Understanding ProbateProbate is the procedure that happens after somebody bites the dust. It includes a ton of administrative work and is generally directed by the probate court in the locale where the individual kicked the bucket. The job of probate is to guarantee the expired’s will is substantial, assembling all her property and resources, taking care of her tabs and charges and, at last, conveying property to beneficiaries. These obligations tumble to the individual names as agent in the expired’s will. On the off chance that the expired passed on without leaving a will, the court will delegate a capable individual, called an executive, to deal with the obligations of probate. Utah Last Will and TestamentA last will and testament is a significant advance in arranging the conveyance of your bequest (genuine and individual property) upon your demise. Utah wills license the deceased benefactor, the individual composition the will, to accommodate a mate, kids, other friends and family, and pets after his demise just as to name an individual delegate for the domain. Not to be mistaken for a will, an Utah living will, or medicinal services order, gives directions should you become debilitated and unequipped for settling on choices with respect to your therapeutic consideration. Do You Need a Last Will and TestamentAlbeit a last will and testament isn’t legitimately required, without a will, state laws (called laws of intestacy) decide the dispersion of a domain’s advantages. Since the result may not match with the decedent’s (the individual who passed away) wishes, it is commonly prudent to make a last will and testament. Notwithstanding giving the chance to coordinate resource dissemination, an Utah last will and confirmation additionally enables the departed benefactor to cause a beneficent blessing, to make a trust for any individual, name a lawful watchman for minor youngsters, or make a “pet trust” so as to accommodate the consideration of a creature after its proprietor’s passing. The will likewise enables the deceased benefactor to name an individual to manage the home and ensure the will is appropriately dealt with. This individual is known as the agent. Before the conditions of a will can be acknowledged, the will must be demonstrated in probate court. Probate is the court-directed procedure of appropriating the home of an expired individual. When an Utah will is demonstrated, the agent can continue to wrap up the bequest, which incorporates gathering and ensuring property, satisfying obligations, and afterward appropriating resources. Utah offers a streamlined probate process for bequests that don’t surpass $25,000 in worth and don’t contain genuine property. How Can I Get a Copy of a Last Will & Testament?Don’t expect to see your grandfather’s will while he is alive, unless he decides to show it to you. While the testator — the person making a will — is alive, his last testament is private and completely revocable. Your grandfather can change it on whim by writing a codicil or drafting a superseding will. However, when the testator dies, his will becomes effective — and public. The court opens probate on the will and any member of the public can view and copy the document in the clerk’s office. Duplicates Of WillsWhere the area keeps up online records, you can look through the database on the web for the name of the individual whose bequest you are keen on. Info the individual’s last name; last name and first name; or last name, first name and center beginning. You can likewise look by lawyer name, court docket or case number. An online hunt commonly will give you the case record for the archives you are searching for. Nonetheless, you will most likely be unable to see the genuine reports in the record. Be that as it may, be persevering. Since probate happens in every single region over the U.S., odds are you will have the option to find the suitable court’s online data. Here are a few quests that you can attempt: • “_________ (embed proper name) District probate records” • “_________ (embed proper name) District probate court” • “_________ (embed proper name) District probate dockets” • “_________ (embed proper name) district court records” When you have found the proper district and view the probate court docket on the web, normally the means engaged with getting a duplicate of a will or other probate archive legitimately from the probate court will incorporate the accompanying: •Appearing face to face and requesting a duplicate of the will or other probate reports, or making a composed solicitation by fax or mail if applying face to face isn’t possible. •Paying a duplicating expense for the quantity of pages that the will or other probate archive contains. These charges ordinarily extend from $1.00 to a couple of dollars for each page. •Providing a self-tended to, stepped envelope for mailing the duplicates if the solicitation isn’t made face to face. When making a Will you have to think about who will be named as your own delegate or agent to regulate your home, who you will name as gatekeeper and trustee of minor youngsters if your companion doesn’t endure you and who will get your property. You ought to likewise consider assessment issues. The individual selected as agent or head is regularly your life partner, however you ought to likewise name an other, in the event that your life partner predeceases you. The individual you name ought to be an individual you can trust and who will coexist with the recipients named in the Will. In the occasion your life partner predeceases you, the gatekeeper you name will have genuine guardianship of your minor youngsters except if a court chooses another person. The trustee you delegate to oversee a trust you built up will be accountable for the advantages of the trust to support the minor recipients. For the most part, a Will must be marked within the sight of in any event two observers (three for Vermont) who likewise sign the Will. A legal official open will likewise need to sign if the Will contains a self-demonstrating oath. For the most part, a self-demonstrating sworn statement enables the Will to be confessed to probate without other proof of execution. Joint Property: Numerous individuals don’t comprehend that joint property may go outside your Will and furthermore once in a while accept that it will go through their Will. They don’t comprehend the noteworthiness of joint possession. The issue is normal in the accompanying regions, gave as models: (a) Land: Frequently, a couple will possess land as joint occupants with privileges of survivorship. In the event that one gathering bites the dust, the enduring party gets the property paying little mind to what the Will gives. This is normal and for the most part adequate. Nonetheless, if this isn’t your longing you should change the responsibility for property to occupants in like manner or other type of possession. On the off chance that you possess land as inhabitants in like manner, at that point you may assign who will get a lot of the property at your demise. This issue can be an issue when ignorant people accept title to land as joint occupants with privileges of survivorship yet truly expected to leave their offer to, for instance, offspring of an earlier marriage. (b) Financial balances/Testaments of Store, Stock, Retirement Plans, IRA’s and other sort Property: a similar possession as land can be made of these ventures. Truth be told, numerous Banks routinely spot Financial balances and Endorsements of Store in the joint inhabitant with right of survivorship type of possession if more than one individual is on the record or Disc, without educating you concerning the outcome of same. In circumstances where the people are a couple and there is no issue or worry over separation or youngsters from past relationships, this might be the best strategy. In any case, with separation on the ascent, pre-marriage understandings and different relationships being normal, the gatherings might accomplish something that was not their goal. Another regular dangerous circumstance is the place a parent has more than one youngster yet just a single kid dwells in the main residence of the parent. The parent may put the name of the youngster who dwells there on all records, Compact disc’s and different ventures for accommodation reasons and build up a joint occupant with right of survivorship circumstance without understanding that lone that kid will be qualified for those benefits at the parent’s demise. Basically, you ought to know when you obtain a benefit or venture precisely how it is titled. Estate Lawyer Free ConsultationWhen you need legal help finding a will online in Utah, or you need estate help, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Probate. Estate Planning. Last Will and Testaments. Powers of Attorney. Health Care Directives. Revocable Trusts. Asset Protection Trusts. Irrevocable Trusts. Estate Disputes. Estate Lawsuits. Estate Litigation. Estate Mediations. Estate Arbitrations. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Can DUI Be Reduced To Reckless Driving? via Michael Anderson https://www.ascentlawfirm.com/can-you-look-up-a-will-online/ There can be no divorce without marriage. Both are interconnected since the beginning of civilization. Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8). A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”). The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament. The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters. A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants. Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures. The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home. The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry. These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false. Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way. Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law. Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement. There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations. South Salt Lake Utah DivorceWith the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12). There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities. Divorce TodayDivorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer. A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case? A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement? A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable? A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel? Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice. Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct. Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations. Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women. What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress? Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not. The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation. The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes. Divorce Legal FrameworkThe law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation. In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates. “Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games. The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement. When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought. Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients. The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice. In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce. Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome. Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns. Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is. The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions. The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination. Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties. Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.” The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense. To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically. The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will. There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance. Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way. Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible. The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare. Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility. The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule. The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence. Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates. The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts. Custody and Parental InvolvementCustody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years. Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement. Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ” Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power. Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved. The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising. Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say. Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support. Cohabitation and AlimonyNo laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate. Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement. Divorce and AlimonyIn some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children. Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate. Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date. Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough. Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities. Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer. Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer. South Salt Lake Utah Divorce Lawyer Free ConsultationWhen you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
What Is The Average Cost Of An Estate Plan? via Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-south-salt-lake-utah/ Under Utah law, if the child is born during the marriage of the parents, paternity is automatically established. The legal father is the husband and the husband’s name will appear on the birth certificate of the child as the father’s name. However, under Utah law, a child will have no father if the child is born to an unmarried couple and paternity must be established for the father’s name to appear on the child’s birth certificate. To know how you can establish paternity of your child, speak to an experienced Utah paternity attorney. When the law makes a presumption, the court assumes that the presumed fact is true until it is presented with evidence to the contrary. Legal presumptions are based upon inferences that the law makes. For instance, children are presumed to be their parents’ intestate heirs because the court infers that parents would want their children to have most of their property. If you are fighting a paternity case in Utah consult an experienced Utah paternity attorney. The issue of paternity comes up in a divorce proceedings where the spouses are fighting on the issue of child support. Often the husband will claim that he is not the father of the child to avoid paying child support. In such cases, a paternity lawsuit can help determine the biological father of the child. PresumptionsThe law presumes that a man is the father of all children his wife conceives during their marriage. Sometimes a man will assume the paternity of a child born to his wife and “hold himself out” as the child’s father, even if he knows himself not to be the father or if his paternity is uncertain. If there is a subsequent divorce, he may raise the question of paternity for the first time in the divorce proceeding. In most cases, a man who assumes paternity (either by signing the birth certificate or giving the appearance to the community that he is the child’s father) cannot later deny that he is the child’s father. This is often true even if he learns for the first time during the divorce proceeding that he is not or may not be the father of the children. In past years, an unmarried mother would often look to AFDC for support of her child(ren) without attempting to identify and pursue the child’s father for support. Today, however, all jurisdictions are obligated to assist single mothers in taking an active role in establishing paternity; they risk losing benefits if they refuse to participate. It is not unusual, for example, for a hospital with an active maternity ward to offer assistance with establishing paternity to an unmarried woman who does not identify the father of her child. In recent years, an ever-increasing number of children have been born without a father who acknowledges his fatherhood. The number of out-of-wedlock births has skyrocketed, and there has also been a dramatic increase in the number of cases involving husbands or wives who claim that a child conceived within a marriage was fathered by another man. One of the many consequences of this is that such children do not obtain their legal right of the care and support of two parents. In earlier years, when the social welfare system borne by the state and federal governments was not as overburdened as it is today. Attempts were made to establish paternity – i.e., to identify the father of the child – but few were successful. One of the major reasons for this was that the available biological tests were not very sophisticated. Their primary ability was to establish that a “putative” father – a man claiming or claimed to be the father – was not, in fact, the father. The method involved blood tests of the mother, father, and child. If the child had a blood type that could not have been inherited from that father, paternity was denied. If the child had the blood type of the mother or of neither parent, the test was unable to assist in establishing paternity. Paternity Lawyer in Utah Free ConsultationWhen you need legal help from a paternity attorney in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. Whether it is Child Support, Child Custody, Parent time, visitation, and more. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
How Do You Plea Bargain A DUI? Divorce Lawyer North Salt Lake Utah General Counsel Services In Utah Criminal Defense Lawyer Famington Utah How Long After Probate Is Granted Does It Take To Receive Inheritance? via Michael Anderson https://www.ascentlawfirm.com/paternity-cases/ |
Probate LawyerProbate Lawyer in West Jordan Utah. If you need probate lawyer, trust attorney, inheritance counsel, living trust, last will and testament, call 801-676-5506 now for a free consultation. Archives
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