According to the U.S. Centers for Disease Control and Prevention, divorce rates in Utah is among the lowest nationwide. With the exception of people over the age of 50, who are getting divorced more often than younger couples, divorce rates in Utah have continued to drop over the last five years. Overall, statistics reveal that divorce rates have declined over the past 10 years or so, but still almost 40% of all marriages end in divorce. Why Divorce Rates Are On the DeclineOn the surface the declining divorce rates can be deceiving considering the number of young adults who are choosing to live together rather than tying the knot. More and more people are cohabiting (living together in lieu of marrying). Cohabitation without getting married and the rate of births between non-married people is on the rise. According to a study by Gallup, only 16% of 18 to 29-year-olds were married. 64% of that age group remained single. Studies cite a number of reasons for this including people waiting longer to marry, and a decline in the rate of marriages. According to a recent study on divorce rates by Philip N. Cohen of the University of Maryland, millennial wait longer to get married, and are more established and stable when they do, leading to fewer divorce risks. The Pew Research Center reports that the number of cohabiting partners has increased 29% since 2007. The Pew Research Center last year found that one-in-four parents living with a child in Utah today are unmarried (25%), marking a dramatic change from a half-century ago, when fewer than one-in-ten parents living with their children were unmarried (7%). Why More People Are Waiting to Get Married or Not Marrying At AllWhile many young adults cite economic reasons for not getting hitched, another reason seems to be a reflection of new and evolving attitudes regarding traditional marriage. Many young people say their hesitation has more to do with holding onto their freedom and a desire to avoid the complications of traditional marriage. They want to keep their options open. The Unexpected Risks of Living TogetherThose who choose cohabitation versus getting married, because they want to avoid the complications of marriage, may find that the grass isn’t always greener on the “living together” side of the fence. Family law disputes and divorce are a fact of life and touch virtually every human being in some way. In fact, it can be argued that people who live together are at a greater risk of facing family law litigation. Studies have found that “living together” or cohabitation relationships tend to be less stable and more often end a breakup than marriage. And that’s really not surprising. What is surprising is the data which indicates an increased chance of divorce when couples cohabit before getting married. Research conducted by the Institute For Family Studies indicates that those who do live together prior to getting married are actually at a higher risk of divorce than those who did not cohabit. This is explained by what is referred to as the inertia of cohabitation. “This idea of inertia is based on the fact that many people increase their constraints for staying in a relationship before they have clarified a mutual dedication to being in the relationship.” The premise is that when people are sharing an address they get caught up in an inertia that makes it harder to break up. This inertia increases the likelihood they will get married to someone they might not have married had they not been living together. Family Law Complications Faced By Cohabiting Couples Who Break-UpOne of the major problems with “uncoupling” when a couple is not married is the lack of applicable laws in Utah to address the various issues which are otherwise applicable to divorcing couples. Utah common-law marriage was abolished by statute in 1939. Without common-law marriage in Utah, it’s not always clear what rights unmarried couples have when they have been living together for an extended period of time. Considering the increasing number of people who are cohabiting without getting married, the Utah courts do recognize that in certain situations an unmarried person may have the right to financial support from a partner after the relationship has ended. Palimony is financial support that an unmarried person can request from their partner after separating. For a palimony claim to be enforceable, a cohabitation agreement must exit between the parties. The cohabitation or palimony agreement, must be in writing, must be signed by the party promising to provide financial support, and both parties must have received advice from separate divorce attorneys before entering into the agreement. Married couples and those who cohabit (live together) face issues like custody, parenting time, support issues, distribution of property, tax issues, insurance issues, and more every day. The traditional litigation method of addressing these divorce and family law issues is expensive, ineffective, outdated, and not healthy for the participants; and sometimes there is not an adequate law to address a particular issue. Divorce Rates for Cohabitating CouplesIn a study of 16 countries, researchers noted that the relationship between cohabitating and marriage is not necessarily a direct one, but that there are many factors that impact why a couple opts to divorce regardless if they were cohabitating before marriage or not. The age group examined in this study was those ages 15 to 49 years old. Some factors that impact whether a couple will divorce include divorce laws, cultural acceptance of divorce, and societal acceptance of cohabitation without marriage. Key findings include: Factors Impacting DivorceIn the international study mentioned above, the findings did not illustrate a direct relationship between cohabitating before marriage and getting a divorce later on. The most important risk factors for a divorce were cultural acceptance of divorce, if the couple’s parents were divorced during their childhood, and marrying at a young age. Other findings included: Divorce and Age at Time of MarriageAccording to research, marrying in your teens puts you at a higher risk for getting divorced, but marrying in your late 30s can also put you at a heightened risk for divorce. Other findings include: Couples aged 50 and older are living together in greater numbers than ever. According to Forbes.com, more than 1.8 million Americans in that age group are cohabiting. Ninety percent of these people have been widowed or divorced, or are separated from their spouse. Reasons may include these factors: Sliding Versus DecidingThe concept sliding vs deciding refers to how couples commit to each other in their relationship. Couples either “slide” into a convenient next step or commit because of the inconvenience of breaking up, versus couples who plan on being together and evaluate their compatibility before moving on to higher levels of commitment. In a study of 1,300 individuals in opposite-sex relationships in the Utah: The majority of couples who cohabitated before marriage noted it just happened as the response to why they moved into together, which indicates more of a slide into commitment, instead of discussing future plans and deciding that they were the best fit for each other. These couples reported lower levels of marital satisfaction later on in the study. Couples who planned and decided to move in together prior to marriage because they shared a similar commitment level and future goals reported higher marital satisfaction. The Cohabitation EffectIn another study conducted by the same researchers who explored the “sliding versus deciding” concept, they took a look at 1,050 married men and women ages 18 to 34 years old. They found that: This study’s most significant finding is that living together prior to engagement has the highest risk factor for divorce, while living together after getting engaged or after getting married does not have a statistically significant impact on their divorce potential. This may indicate that couples who opted to live together prior to engagement may have slid into this commitment level, instead of making sure that they shared common goals for their future as a couple, thus putting them at higher risk for marital dissatisfaction and potentially divorce. Divorce Rates for Cohabitating Same-Sex Couples Versus Opposite Sex CouplesThe 2021 Current Population Survey Annual Social and Economic Supplement reports that there are about 600,000 same-sex married couple households and 469,000 same-sex couples who are cohabitating. Other stats include: How Long After Marrying do Couples Divorce?On average, marriages tend to last around eight years. Risk factors for divorce include intimate partner violence, substance abuse, infidelity, and lack of trust. Inability to connect, enduring high levels of stress, and having toddlers also can increase marital discord, and eventually lead to a divorce. Marriage After Living TogetherFor couples who decide to move in together, just over half of them marry within five years. Within that same time period, 40 percent of couples split up. Roughly 10 percent of them continue to live together without being married. Understanding Cohabitation and Marital SuccessPeople who decide to live together may do so with the expectation that it will help them determine whether they will have a successful marriage with their partner. People who decide to live with a partner may also be more likely to divorce if they are unhappy with the relationship after taking vows, since they may have less conservative views of marriage. Research indicates conflicting results regarding whether cohabitation before marriage increases chances of a later divorce if the couple marries. These studies illustrate that the connection between pre-marital cohabitation and divorce are not a direct one, but instead a complex intermingling of various factors. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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Can You Get Child Custody If You Have A Criminal Record? Chapter 12 Bankruptcy For Farmers And Fishermen Child Custody Evaluations In Divorce Proceedings Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Ascent Law, LLC https://www.ascentlawfirm.com/cohabitation-and-its-effect-on-rise-in-divorce-rate/
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If you’re a parent going through a divorce, a judge will need to decide how you’ll share parenting time with your ex and who will make decisions about your kids. Many divorcing parents are able to reach their own custody settlement agreements without going to court. When parents can’t agree, a judge may order a custody evaluation to help assess what is in the child’s best interests. A child custody evaluation is a report put together by a custody evaluator. It summarizes the evaluator’s findings and recommends why one parent should get custody over the other. Custody evaluators are trained mental health professionals and usually have experience as a child therapist or psychologist. The custody evaluation process can take a few weeks to complete. Your evaluator will want to gather information and meet with you and your children individually to make sure a child isn’t being unfairly pressured by a parent to say certain things. When Will You Need a Custody Evaluation?If you can’t reach a custody agreement with your spouse after trying mediation, a judge may order a custody evaluation. Parents can request a custody evaluation even if a judge doesn’t. Custody evaluations are usually appropriate in cases where the parents can’t agree on custody or where one parent is claiming that the other parent is “unfit.” A custody evaluator can get to the bottom of the parents’ claims and help a court determine what kind of arrangement is in the child’s best interests. Choosing the EvaluatorA judge might assign a specific custody evaluator to your case, or you and your spouse can pick an evaluator yourselves. In many cases, your lawyer might be able to recommend a good custody evaluator for your divorce. Whether you’re choosing an evaluator yourself or picking from some options given to you by the judge, you should ask your lawyer for information about the evaluator. For example, your lawyer might be able to tell you about past experiences with the evaluator or the evaluator’s history of recommending custody to mothers over fathers. You can also ask your lawyer about the evaluator’s ability to handle unique cases, such as evaluating custody for a child with special medical needs. You shouldn’t question the evaluator directly because you don’t want to do anything that might negatively affect the evaluator’s impression of you. If you and your ex-spouse agree to a custody evaluation but you can’t agree on the evaluator, you can each hire your own evaluators. But before you hire your own evaluator, you might want to consider the costs. If the court orders the evaluation and you use the county’s evaluator, you’ll likely pay a lower hourly rate than if you hire a private evaluator. While a county custody evaluation will probably cost between $1,000 and $2,500, you might end up paying as much as $15,000 or more for a private evaluation. The Evaluation ProcessMany evaluators use psychological testing for both children and parents. Some evaluators do the testing themselves; some might send you to another professional for testing. In addition to testing, a custody evaluator will interview the child (ren) and the parents, as well as any teachers, babysitters, family friends, and extended family members. The evaluator might also examine health records, school report cards, and attendance records. Once all the evidence is gathered and reviewed, the evaluator will recommend to the court that either the parents share joint custody or one parent should receive primary physical and legal custody. A judge doesn’t have to follow a custody evaluator’s recommendation. However, a custody evaluation done by a trained evaluator will carry a lot of weight in your case. The ReportThe custody evaluator will submit the report to you, your spouse, and the court at the same time. The report might make recommendations about the following: Additionally, your custody evaluation report might recommend a reevaluation for a specific time in the future, especially if your children are very young. Can You Contest Findings in an Evaluation Report?If anything happens in the evaluation process that concerns you—for example, the evaluator appears to have a strong bias in favor of your spouse or asks questions you think are inappropriate—talk to your lawyer immediately, before the report is submitted. A judge might not take your concerns seriously if they’re raised after the report. After you get the custody evaluator’s recommendation, you should discuss it with your lawyer. If the recommendation is acceptable to you, you’re probably better off agreeing to the recommended course of action and giving up your day in court, where you might end up getting less. However, if the evaluation is unfavorable to you, you should discuss with your attorney how to contest it in court. A judge doesn’t have to follow the custody evaluator’s recommendation, especially if you can show it was biased or doesn’t serve your child’s best interests. What Factors Can Affect Custody?While there is no set formula for what factors count and how much weight each has, there are some fundamental questions that the court will take into consideration when determining which parent should be awarded primary physical custody. Some of the factors the court may use for a custody determination include: Types of Child Custody in UtahWhile custody cases are rarely cut and dried, there four primary categories that a child custody ruling could fall into. When making the decisions, the court is tasked with choosing a custody agreement that will serve the best interests of the children involved. Joint Legal Joint Physical CustodyThis type of custody is most common in child custody cases where both parents live in the same general area and are more common in cases of amicable divorce where both the parents want the children to reside with them. This type of custody involves parents sharing physical custody which means that each parent will have the children for at least 111 days each year. They will also share in the decision making process in regards to the children such as medical treatment, educational goals, and additional activities the children will participate in. Joint Legal Sole Physical CustodyIn this type of custody arrangement, both parents will be involved in making decisions in regards to any legal issue associated with the children such as educational and medical decisions. Unlike joint physical and legal custody, the children will reside with one primary parent on a full-time basis. The other parent will often receive a set visitation, or parent-time schedule to spend time with the children. This type of custody is more common when one or both parents work, when the parents live farther apart, or when the children would benefit from a more set daily schedule. Sole Legal Sole Physical CustodyIn sole legal and physical custody arrangements, one parent will have the children living with them full-time or at least 255 overnights a year, and the other parent will be entitled to visitation. Visitation is usually set to at least a minimum of 86 overnights per year. This usually includes a mix of weekends, holidays, and school breaks. With sole legal custody, the parent who was awarded sole physical custody will have the right to make all necessary decisions for the child on their own. While the primary parent does not have to seek consent for their decision from the non-custodial parent, they must share the information as the other parent has the right to know. This type of custody arrangement is not very often used and is primarily reserved for cases where one of the parents is perceived by the court as unfit or unable to care for the children. Split CustodySplit custody is an infrequent occurrence in the judicial system and occurs when two or more children in the household are split up between parents. In this situation, each parent would receive sole and physical custody of one of the children. This type of custody is used when the court deems that it is in the best interest of the children to live separately each with a different parent. These cases can occur in such instances as siblings that do not get along, a child who has a lot of anger against one parent, or a child who have mental health issues that make separation a better option. Utah Child Custody LawsWhen a couple with children breaks up, the responsibility to care for the children must be shared by both parents. An important aspect is child custody or with whom the child will live with and what visitation with the other parent will be like. Another part of this responsibility is financial support, in the form of child support. Utah family courts, like those in most states, determine child custody matters using the “best interests of the child.” When parents can’t develop their own parenting schedule, the court can establish an appropriate schedule more or less than the statutory minimum parent-time based on the following best interest of the child factors: How Child Custody Decisions Are MadeThere are several important issues whenever child custody rights are determined. If you’re going through a divorce, you’ll want to know whether your child will live primarily with you, and if not, whether you’ll be able to make important decisions as to how your child will be raised. If you’re a close relative or family friend of a child who is not your own, you may be wondering if getting custody of that child is even a possibility. For parents and others without a lot of experience with the child custody system and family court, they may question: How are child custody decisions made? The following is a brief discussion about making child custody decisions. Divorce and Child Custody DecisionsIf you’re a parent considering divorce, or if you are already involved in the process, you are probably wondering how child custody and visitation issues are resolved. In general, child custody and visitation will either be decided by agreement between the divorcing couple (usually with the help of attorneys and mediators) or by the court. Unmarried Parents and Child Custody DecisionsThe rights of unmarried parents in child custody may depend on if both are legally recognized as the parents of the child. If the parents are not married, the parents may have to acknowledge the father’s paternity. If the father’s paternity is not voluntarily acknowledged, the court may have to establish paternity with a DNA test. Generally, both parents have a legal right to be part of their child’s life. This includes making parenting decisions for important issues like education, health care, and religion. It is generally best for everyone if the parents can agree to a child custody and visitation arrangement out-of-court. This allows the parents to work out an agreement that works best for them, without relying on a judge to come up with the agreement. If the parents can’t agree or mediation does not work, the case will have to be decided by a family court judge. The court may prefer to give both parents shared custody but, in some cases, primary custody of one parent with visitation rights by the other may be in the best interests of the child. The court may use several factors for making child custody decisions, including: Non-Parental Child Custody DecisionsOther relatives or important people in the child’s life may also have an interest in making sure the child is well cared for. Non-parents who may want to take custody of a child may include stepparents, grandparents, or other family relatives, particularly if they have been the child’s caretakers. In some cases, relatives or other individuals or agencies may file for custody rights of a minor child. This generally requires showing the child is in danger or the parent is unfit or has abandoned the child. If a non-parent files for custody, the court will decide if the parents are unfit or whether the non-parents can take temporary custody. Stepparents generally do not have legal rights (or responsibilities) over the child of their spouse. For a stepparent to have custody and visitation rights for the child, the stepparent would have to adopt the child. This generally requires having one of the parents give up their parental rights so the child could be adopted. In some states, grandparents may be granted visitation rights. Contact Child Custody Attorney Ascent Law Firm in UtahDivorce and child custody proceedings can be both legally and emotionally complicated. If you need help navigating through the Utah child custody legal process, contact Ascent Law Firm Attorneys today. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Can We Use Prenup To Keep Child Support Payments Reasonable? Can You Get Child Custody If You Have A Criminal Record? Chapter 12 Bankruptcy For Farmers And Fishermen Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Ascent Law, LLC https://www.ascentlawfirm.com/child-custody-evaluations-in-divorce-proceedings/ Chapter 12 bankruptcy is a relatively new addition to bankruptcy laws. It allows “family farmers” and “family fisherman” to restructure their finances and avoid liquidation or foreclosure. It’s very similar to Chapter 13 bankruptcy, but provides additional benefits to debtors. For much of our nation’s history, there were few bankruptcy laws specifically designed to protect family farmers and fishermen. Congress enacted Chapter 12 bankruptcy in 1986 as an emergency response to the tightening of agricultural credit and the pressure that it placed on family farmers and fishermen. Chapter 12’s provisions were temporary for many years and did not become permanent until 2005. Eligibility for Chapter 12 BankruptcyDespite its important purpose, Chapter 12 bankruptcy has very limited application. Few debtors are eligible to file bankruptcy under Chapter 12. Of the 1.4 million bankruptcies filed in the United States in 2011, only 637 were Chapter 12 cases. Under the bankruptcy laws, only a family farmer or fisherman with “regular annual income” may seek protection under Chapter 12. “Regular annual income” may be seasonal as long as it is stable and regular enough to allow the debtor to make payments under a Chapter 12 plan. Debtors under Chapter 12 may be individuals (married or single), corporations, or partnerships. Individual Chapter 12 debtors must: How Chapter 12 WorksA Chapter 12 case begins when the debtor files a voluntary petition for relief. Most Chapter 12 debtors continue farming or fishing operations after they file bankruptcy. A bankruptcy trustee is appointed, but generally, his or her duties are limited to reviewing documents, monitoring the debtor’s operations, advising the court, and collecting and disbursing plan payments. Chapter 12 debtors must propose a repayment plan within 90 days of the date that they file bankruptcy. The bankruptcy court can extend the plan deadline in certain circumstances. The Chapter 12 Repayment PlanThe plan process in Chapter 12 is similar to that in Chapter 13. Under Chapter 12, debtors propose a plan to pay creditors over three to five years. Three years is the minimum plan period in Chapter 12 unless the debtor can pay all amounts owed sooner. The plan period can be extended to five years with court approval. The plan period must be five years if the debtor owes domestic support obligations (child support or alimony) that he or she does not pay in full sooner. Confirmation of the Chapter 12 PlanChapter 12 plans are subject to bankruptcy court approval, or “confirmation.” The hearing on confirmation is supposed to be held within 45 days of the date that the plan is filed. Before the confirmation hearing, the Chapter 12 trustee reviews the proposed plan and other documents filed by the debtor and makes recommendations to the bankruptcy court. The bankruptcy court is responsible for deciding whether to confirm a proposed Chapter 12 plan, but most judges rely heavily on the trustee’s recommendations. Elements of a Chapter 12 PlanRequired plan payments. During the plan period, the debtor must turn over all of his or her “disposable income” to the Chapter 12 trustee. “Disposable income” in a Chapter 12 case is the difference between the revenue generated by the debtor’s farm or fishing operations and the amount reasonably needed to cover: The trustee retains a fee from the plan payments and disburses the balance to creditors. Mortgages and other secured claims. One of the advantages of Chapter 12 is that it allows debtors to “cram down” secured debt, like farm mortgages and boat loans. Mortgage lenders and other secured creditors must be paid at least the value of the collateral pledged for the debt. Any balance owed in excess of the collateral’s value can be treated as unsecured debt, which is often paid little or nothing in Chapter 12 cases. Payments on secured debt can be stretched out even beyond the term of the plan, and interest can be reduced to a current market rate. Discharge of debt. Chapter 12 plans have to meet the “best interests of creditors” test. Under the “best interests” test, creditors have to be paid at least as much under a Chapter 12 plan as they would receive in a Chapter 7 bankruptcy liquidation. As long as the “best interests” test is met, unsecured creditors can be paid pennies on the dollar or even nothing at all. After the confirmation hearing, the case remains open until the debtor makes all required payments to the Chapter 12 trustee. Once all required payments have been made, the court grants the debtor a discharge, and the case is closed. A discharge, with some exceptions, eliminates a debtor’s liability for obligations not covered by its Chapter 12 plan. Most obligations are dischargeable. There are, however, some obligations, such as child support and alimony that are nondischargeable even under Chapter 12. A Chapter 12 case can be dismissed if the debtor cannot obtain plan confirmation or make required payments. A debtor also can elect to dismiss a Chapter 12 case or convert it to a Chapter 7 liquidation. How Chapter 12 Bankruptcy WorksGather all of your financial information if you want to file for Chapter 12. The procedure works similarly to those of other bankruptcy chapters. You must submit a voluntary petition, the schedules, the statement of financial affairs, a complete list of your debts and creditors, and any other documents the court requests. These documents and any required fees must be filed with the clerk of the bankruptcy court in the area where you live or conduct your business. Types of Chapter 12 Provisions and ReliefFiling for Chapter 12 bankruptcy protection provides relief from creditors, but it also comes with numerous rules. The Automatic StayAn automatic stay goes into effect when a farmer or fisherman files for Chapter 12 bankruptcy, just as with all other bankruptcy cases. The stay prohibits creditors from taking collection actions without the permission of the bankruptcy court. In addition to protecting the debtor, the automatic stay in a Chapter 12 case also protects anyone who is also liable on any of the Chapter 12 debtor’s consumer debts. These are debts incurred for personal, family, or household purposes rather than business debts associated with the farming or fishing operation. Trustee and CreditorsThe court will appoint a trustee to work with the debtor and their creditors. The Chapter 12 trustee will hold a meeting of creditors at the beginning of the proceedings. The trustee and creditors may ask you questions about your petition and financial affairs during the meeting. This information will be used to set up your payment plan. Eligibility for Individuals and Married CouplesOnly one person or married couple can file for Chapter 12 (you and a business partner cannot file together). Other eligibility requirements include: Eligibility for BusinessesA corporation or partnership may be eligible to file for Chapter 12 bankruptcy if it is closely held by a family and does not have publicly traded stock. Other requirements include: “Regular Annual Income”To qualify for Chapter 12, you must receive regular annual income from your family-owned or family-run fishing or farming operation (this can be seasonal). The income requirement is necessary to ensure your yearly income is stable. This helps during the reorganization and repayment phase because you can accurately predict what you can make in a year. This allows you to make each payment. Other Eligibility ConsiderationsYou can’t file for any bankruptcy chapter if: Even if you file together, each spouse needs to provide this information. If just one spouse files for bankruptcy, the other spouse needs to show their income and expenses so the courts can understand your household’s entire financial picture. Appointment of Bankruptcy TrusteeYour case will have an impartial trustee assigned, called a bankruptcy trustee. This person will oversee the case, administer tasks and debt repayments, and be there to answer your questions. They will evaluate your case and decide whether it is approved or not. While this person may be helpful, they represent the bankruptcy case’s interests and not yours. Hiring a bankruptcy attorney is the only way to make sure your interests are upheld. When you file the Chapter 12 petition you will get an automatic stay. This will stop most collection agencies and debt collectors from taking action against you. These creditors and agencies generally can’t: The bankruptcy court will automatically give notice of the case to all your creditors. During the process, you will provide their names and addresses. Make sure to include them all so they will stop calling you! Protecting Co-Debtors with an Automatic StayThe automatic stay will also protect your co-debtors. Creditors can no longer call them and hold them responsible for the debt they signed on to unless the court authorizes them to. This protects: Meeting of Creditors in Chapter 12 BankruptcyYour bankruptcy trustee will hold a “meeting of creditors” between 21 to 35 days after you file the petition and it is approved. Some areas do not have trustees or administrators on staff. In situations like this, the meeting can take up to 60 days to take place. During the meeting, you can expect to: Talk to an Attorney to Learn About Chapter 12Depending on your unique situation and your financial goals, bankruptcy just might be the best option for you. But making the right decision as soon as possible can make all the difference. It’s a good idea to talk to Ascent Law Firm attorney if you have questions about bankruptcy or would like some guidance through the bankruptcy process. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Can I Do A Postnuptial Agreement Without A Lawyer? Can We Use Prenup To Keep Child Support Payments Reasonable? Can You Get Child Custody If You Have A Criminal Record? Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Ascent Law, LLC https://www.ascentlawfirm.com/chapter-12-bankruptcy-for-farmers-and-fishermen/ When you need a Paternity Lawyer in Salt Lake City Utah, call Ascent Law LLC, they will help you with child custody, child support, filing paternity actions, getting your name on your child’s birth certificate, establishing paternity, getting genetic testing or DNA testing to prove that you are the father. How Does A Father Establish Paternity In Utah?Establishing paternity is important for a variety of reasons, including access to benefits and medical insurance. It also allows parents to share the costs of raising a child. Ultimately, paternity can also help protect a mother’s right to child support. Utah has specific statutes for establishing paternity, which are detailed below. Paternity can be established in two ways, either administratively by the Office of Recovery Services or judicially in court. When you work with Ascent Law LLC, we work directly with the Judicial Court System. We are not just Utah Divorce Attorneys, but we are also Father Rights Lawyers. When establishing paternity is disputed by one party, a petition to adjudicate paternity must be filed with a district court or juvenile court. If paternity cannot be determined through the petition, the court may order genetic testing. Establishing paternity is important for a father because it gives him legal rights to the child. It also gives him the power to support the child and participate in decisions regarding his child’s upbringing. For example, paternity will allow him to participate in child custody and visitation issues. And, it will allow him to take advantage of health insurance, social security, inheritance and veteran’s benefits. Once DNA testing has been completed, the Office of Recovery Services will decide whether the man is the biological father. If he refuses to have DNA testing, the Office of Recovery Services will file an administrative action against him. This administrative order will declare the man to be the child’s father and make him the legal father. He will also have his name added to the child’s birth certificate. The court can also issue orders for child support and custody. What Are Fathers Rights in Utah?In Utah, there are strict laws concerning establishing paternity. Fathers who violate these laws can lose their fathers rights. However, being listed on a child’s birth certificate and undergoing a DNA test do not automatically make a man the child’s legal father. For this to happen, men must file an Action for Parentage, also known as a Paternity Action, in court. Fathers have a great deal to offer a child. Their role in the child’s development is important and should not be undervalued. In Utah, they have a limited number of rights and responsibility in their child’s development. An attorney will look out for their client’s best interests in this process. Fathers can obtain custody of their children by hiring an aggressive attorney to fight for their rights. In Utah, fathers’ rights attorneys have extensive experience in winning custody cases for their clients. They know what it takes to win custody cases and know how to win in tense situations. A father’s rights attorney can help a father fight for his child’s right to visit and share custody of his children. Fathers’ rights in Utah can be protected by the state’s paternity laws. Fathers in Utah have the right to apply for modification of child support. Utah’s Family Code has certain procedures for modifying a child’s child support agreement. In Utah, more than eighty-seven percent of child support payments are made by men. Can a Man Request a Paternity Test If the Mother Doesn’t Want It?The short answer is yes, but oftentimes we have to file a paternity action in court. A paternity test can provide the answer to a lot of questions regarding the father of a child. It is commonly required by the court before it can make a custody decision. In some cases, the test can even be performed before the baby is born. There are different ways to obtain DNA, and each method has different risks. One method is to draw blood from the mother. The likelihood of finding DNA is higher the longer the mother is pregnant. If the mother doesn’t want the test, the father can file a paternity lawsuit with the court. However, this is only possible if the other parent contests the suit. Otherwise, the case is automatically decided in favor of the father. In addition, the father must appear in court and answer questions that the attorney asks him or her. The most important thing to remember when appearing in court is to be honest and remain calm. The attorney will request that a paternity test be performed. If the evidence is compelling, the judge will order the test. The father is then required to pay for the test himself or have it done by an attorney. There are many factors that go into determining paternity. The first step is to determine if the father of a child has lived with the mother for at least five years. A court order must also be obtained before a child support order can be issued. Ascent Law LLC Paternity Lawyer West Jordan UtahDivorce Lawyer St. George UtahFamily Law Attorneys in Ogden UtahSalt Lake City
From Wikipedia, the free encyclopedia
This article is about the capital of Utah. For other uses, see Salt Lake City (disambiguation).
Salt Lake City (often shortened to Salt Lake and abbreviated as SLC) is the capital and most populous city of Utah, as well as the seat of Salt Lake County, the most populous county in Utah. With a population of 199,723 in 2020,[10] the city is the core of the Salt Lake City metropolitan area, which had a population of 1,257,936 at the 2020 census. Salt Lake City is further situated within a larger metropolis known as the Salt Lake City–Ogden–Provo Combined Statistical Area, a corridor of contiguous urban and suburban development stretched along a 120-mile (190 km) segment of the Wasatch Front, comprising a population of 2,606,548 (as of 2018 estimates),[11] making it the 22nd largest in the nation. It is also the central core of the larger of only two major urban areas located within the Great Basin (the other being Reno, Nevada). Salt Lake City was founded July 24, 1847, by early pioneer settlers, led by Brigham Young, who were seeking to escape persecution they had experienced while living farther east. The Mormon pioneers, as they would come to be known, entered a semi-arid valley and immediately began planning and building an extensive irrigation network which could feed the population and foster future growth. Salt Lake City’s street grid system is based on a standard compass grid plan, with the southeast corner of Temple Square (the area containing the Salt Lake Temple in downtown Salt Lake City) serving as the origin of the Salt Lake meridian. Owing to its proximity to the Great Salt Lake, the city was originally named Great Salt Lake City. In 1868, the word “Great” was dropped from the city’s name.[12] Immigration of international members of The Church of Jesus Christ of Latter-day Saints, mining booms, and the construction of the first transcontinental railroad initially brought economic growth, and the city was nicknamed “The Crossroads of the West”. It was traversed by the Lincoln Highway, the first transcontinental highway, in 1913. Two major cross-country freeways, I-15 and I-80, now intersect in the city. The city also has a belt route, I-215. Salt Lake City has developed a strong tourist industry based primarily on skiing and outdoor recreation. It hosted the 2002 Winter Olympics. It is known for its politically progressive and diverse culture, which stands at contrast with the rest of the state’s conservative leanings.[13] It is home to a significant LGBT community and hosts the annual Utah Pride Festival.[14] It is the industrial banking center of the United States.[15] Salt Lake City and the surrounding area are also the location of several institutions of higher education including the state’s flagship research school, the University of Utah. Sustained drought in Utah has more recently strained Salt Lake City’s water security and caused the Great Salt Lake level drop to record low levels,[16][17] and impacting the state’s economy, of which the Wasatch Front area anchored by Salt Lake City constitutes 80%.[18] via Ascent Law, LLC https://www.ascentlawfirm.com/paternity-lawyer-salt-lake-city-utah/ In a custody case, when one parent has a felony conviction, it may raise additional concern and complexity. You should be aware that there are two types of custody; “legal custody” and “physical custody.” Legal custody refers to a parent’s right to participate in the decision-making process regarding a child’s upbringing and welfare on subjects such as education, religion, and non-emergency medical issues. Whether a child will attend a public or private school is a common example. “Physical custody” refers to where the child is going to live. Legal custody and physical custody can be further broken down into “joint custody” and “sole custody.” “Sole legal custody” means only one parent gets to make those decisions. In cases of “joint physical custody,” the child resides with both parents for certain periods of time. If a parent has “sole physical custody,” the child resides exclusively with that parent. The other parent will ordinarily have visitation rights (also known as “parenting time”) with the child, again on an agreed upon or court-ordered schedule. Custody cases can be quite complex, emotionally taxing, and expensive (think attorneys’ fees). Can a Convicted Felon Have Custody of a Child?That depends. When it comes to custody and visitation, judges have a mandate to prioritize the best interests of the child. And it’s pretty much a universally accepted theory that children are best served by having both parents in their lives. So, to the degree possible, judges strive to make that happen. That holds true even if a parent is a convicted felon. But the term “convicted felon” covers a multitude of felonies, so the real issue is the nature of the crime committed, including when the crime occurred. And this is where common sense comes into play. A judge is more apt to allow criminal offenders to play a role in their children’s lives if the crime committed doesn’t evidence behavior that would endanger the child. For example, a theft that happened 10 years ago, with no subsequent offenses by the parent, probably isn’t going to have a significant impact on a custody case. But a history of assault, especially if there are recent incidents, undoubtedly would. So if the question is can a convicted felon get joint custody, as a general rule the lower the degree of the crime, and the further back it occurred, the more likely it is that the offending parent will be able to have joint custody. In fact, depending on the other parent’s history and parenting skills, it’s possible for the offending parent to obtain sole legal and/or physical custody. Just remember, it’s the specific facts of each case that will guide the judge’s decision, with an eye toward the child’s best interests. Note that there are some felonies that are virtually certain to result in a court denying any form of custody to the offending parent. Usually, a state’s laws will address this issue. Examples of these types of crimes are: domestic violence against the other parent or the child; sexual assault against the other parent or the child; and, any other forms of child abuse. In fact, depending on the other parent’s history and parenting skills, it’s possible for the offending parent to obtain sole legal and/or physical custody. Does It Make a Difference Whether a Parent’s Offense Was a Felony or a Misdemeanor?As a rule, misdemeanors aren’t as serious as felonies. So, presumably, a misdemeanor will have less of an impact on custody. But state penal codes determine whether an offense is a felony or misdemeanor, and a judge may find that certain kinds of misdemeanors are troubling enough to warrant denying a parent certain custody rights. For example, some states list sexual misconduct as a misdemeanor. The offense may not be particularly egregious in comparison to other sex-related transgressions, but its nature might give a judge pause. If you’re involved in a custody dispute that you can’t resolve on your own, you’ll have to file a custody complaint with the court. Almost invariably, court rules call for the parents to attend mandatory mediation in an effort to resolve the matter with the assistance of a trained custody mediator. The mediator won’t make a decision in your case, but rather will try to guide you and the other parent toward amicably settling your differences. You can certainly bring up a criminal history, and provide the mediator with any proof you’ve accumulated, such as police reports and other criminal records you’ve managed to obtain. Having knowledge of these past events may help the mediator in conducting the mediation session. If mediation doesn’t work, the mediator will report back to the court. In all likelihood, the judge will then order a custody investigation, where an investigator (often a psychologist or social worker) will look at each parent’s history, current employment, and living conditions, and will interview family members and others who are significantly involved in the parents’ and children’s lives. Determining past crimes will undoubtedly be part of the investigation. Under most states’ rules of evidence, proof of a criminal conviction can be used to “impeach the credibility” of the offending parent, meaning it can cast doubt on that parent’s truthfulness. And, depending on the nature of the criminal history, the parent opposing a custody request will likely make the argument to the court that awarding custody to the felon (particularly physical custody) could possibly endanger the child’s welfare. This argument hits at the heart of the judge’s obligation to protect children. If your custody dispute has to go to trial, it’s advisable that you retain an attorney to represent you. Trying to master courtroom procedures and rules of evidence on your own can be a daunting task. Can Expunged Records Be Used Against You in Family Court?An expungement refers to the sealing of an arrest or conviction record. Expunged records aren’t available for public scrutiny. But as to whether expunged criminal records can be used in a custody case, you’d have to check your state’s court rules (or consult with a local family law attorney) to determine what, if any, access a judge might have to them. Can a Parent’s Criminal History Affect Visitation?To this point, we’ve talked primarily about custody. But a parent’s criminal past can also affect visitation. As mentioned above, courts try to preserve contact between parent and child. But if a parent’s history leads a court to believe that the parent shouldn’t be left alone with the child, it can order supervised visitation. This means that the parent can see the child only in the presence of a third party. If the risk to the child is minimal, that third party could possibly be a friend or family member. But if there’s a greater chance of harm, a judge is more apt to order that visitation take place in a state-approved facility, with trained personnel on hand. Best Interest of the ChildOne way that criminal allegations can have a direct impact on the court’s decision is when the criminal activity is related to what is in the best interest of the child. This is the standard that courts use to determine cases regarding child custody and visitation. Courts can often consider the criminal history of both parents as well as any factor that they believe is relevant in determining what is best for the child. Criminal activity can also bare on the morality and character of the parent. In addition to considering the character and criminal history of both parents, the best interest of the child test often considers a number of other relevant factors. This may include looking at the age of the child, the relationship between the parents, the relationship between the child and each parent, his or her current situation, whether there are any siblings involved and whether the parents are likely to foster a positive relationship between the child and his or her other parent. A court uses the best interest of the child standard with broad discretion. He or she may be able to award custody to one parent, award joint custody, award visitation or award supervised visitation. He or she may also be asked to restrict visitation. The judge will also likely have the ability to assign varying weights to different factors. When considering how important criminal history is, the court may consider who the victim of the crime was, what type of offense was committed, how long ago the offense occurred and the type of sentence the parent received. The court may also consider whether there is a pattern of criminal activity as demonstrated through multiple convictions. The court will want to know who the victim was. If the crime involved a member of the family, this can have a significant impact on the case, and the judge may impose limitations on the parent’s custodial or visitation rights. In some instances, criminal convictions are so serious that they can result in the termination of a person’s parental rights. The court will also want to understand the nature of the convictions. If the crimes involved domestic violence or drug or alcohol abuse, the court may believe that these crimes will have a direct impact on the person’s ability to effectively parent. Violent crimes may make the court fear for the safety of the child. Drug convictions may make the court order a drug test against the parent to determine if he or she is still using drugs. The more recent a conviction is, the more weight that it will likely have to the judge. The older the conviction is and if it was an isolated incidence, the less likely the judge will put too much weight on it. Recent offenses that demonstrate a lack of character, dangerous behavior or poor judgment will carry more weight with the court. Additionally, multiple convictions or longer sentences will have a negative impact on the parent’s impression on the court. If the other parent can establish that he or she will provide a stable environment while the challenging parent is frequently in and out of jail, this will likely carry more weight with the judge. Charges vs. ConvictionsThere is a difference between being charged with something and being convicted. A charge in itself is not proof that a person actually committed a crime. If a parent is facing a charge at the time of a child custody case, the lawyer representing the defendant may argue that the charge should not be taken as evidence of the parent’s character since no conviction has occurred. Courts will likely put less weight on a charge than they do a conviction. However, depending on the nature of the charge and its severity and relevance to child custody situations, the court may consider it. Domestic ViolenceDomestic violence crimes are particularly relevant to the determination of child custody decisions. Many states have a domestic violence presumption in which the court is permitted to assume that it is not in the best interest of the child for the abusive parent to have custody or visitation of the child. This is particularly true when the violence is perpetuated against the child. Crimes and CustodyAmong the factors determining the best interests of a child are: And certain criminal convictions can be considered when deciding who gets custody. A criminal record with numerous drug possession convictions could be an indicator of drug addiction. Likewise, multiple DUI charges could point to alcohol abuse as well as a child’s safety when riding with a parent. Domestic violence charges, even if the child was not the alleged victim, are often viewed in a negative light, and obviously any child abuse convictions, even involving other children, will adversely affect any effort to gain child custody or even be used to terminate parental rights. Even certain parole or probation conditions that can impact a stable and continuous home environment. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Bankruptcy Case Dismissed Without Prejudce Can We Use Prenup To Keep Child Support Payments Reasonable? Can I Do A Postnuptial Agreement Without A Lawyer? Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Ascent Law, LLC https://www.ascentlawfirm.com/can-you-get-child-custody-if-you-have-a-criminal-record/ When a couple decides to marry, their thoughts very naturally turn to happy things—like the well-wishes of family and friends, wedding planning, and dreams of a warm and romantic honeymoon destination. But before they marry, it’s prudent for each prospective spouse to consider his or her financial situation and whether it would be wise to enter into a prenuptial agreement. A prenuptial agreement is a legally binding contract that is made in contemplation of marriage, meaning that two people negotiate and sign the agreement with a view toward what will happen when they marry. The agreement has to be signed before they get married. It lays out a plan for how the spouses will divide up their assets if they should happen to divorce or, sometimes, if one of them dies. Prenuptial agreements are concerned with the division of property, which is defined as any interest in real property (like land or buildings) or personal property (tangible objects like jewelry and automobiles or abstract objects like retirement accounts). Prenuptial agreements have to be finalized before a marriage occurs. They become effective as soon as the parties are legally married. Prenuptial agreements are also known as premarital or ante nuptial agreements in some jurisdictions. Who Should Get a Prenuptial Agreement?If any of the following scenarios apply, couples should consider getting a prenuptial agreement: This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, contact an experienced Utah family Ascent law attorney for more advice. What Issues Can a Prenuptial Agreement Cover?Prenuptial agreements in Utah can include some or all of the following issues: Utah law specifically states that “the right of a child to support, health and medical provider expenses, medical insurance, and child care coverage may not be affected by a premarital agreement.” This means that premarital agreements can’t limit or cap the amount of child support that one parent would have to pay to the other in the event of a divorce and change in child custody. The reason for this is that the right to child support belongs to the child, not the parent. Child support money may technically be transferred by one parent to another, but the legal reality is that the money can only be used to support the child. Also, child support awards must be modified if financial circumstances change. Courts must award the amount of child support that is fair and reasonable under the circumstances, regardless of any prenuptial agreement by the parents. Similarly, child custody can’t be decided in advance via a prenuptial agreement. This is because child custody awards can only be decided by family law judges, who have to look at the facts and circumstances of each unique case and render a decision based on the child’s best interests. None of this means that a prenuptial agreement can’t contain an agreement about child support and custody. If the parties divorce and decide to abide by the terms of their prenuptial agreement, then they can self-enforce provisions about child custody and support. However, if they disagree and wind up in family court, a judge will give little to no consideration to what the prenuptial agreement says about these topics. Finally, Utah law says that “parties to a premarital agreement may contract with respect to the modification or elimination of spousal support.” This means that a prenuptial agreement can include terms to establish the type, amount, and duration of alimony to be awarded if the spouses divorce, or they can even eliminate it altogether. However, if the alimony terms of a prenuptial agreement would result in one spouse becoming impoverished and becoming eligible for public assistance, the court will overlook the language of the agreement and order the other spouse to pay alimony to the extent necessary that the poorer spouse is no longer eligible for assistance. How Can I Ensure my Prenuptial Agreement Is Enforceable in Utah?In 1994 Utah adopted the Uniform Premarital Agreement Act (“UPAA”). The UPAA was initially developed in 1983 by the National Conference of Commissioners on Uniform State Laws in an attempt to harmonize the law surrounding prenuptial agreements and to ensure legal conformity across the fifty states. To date, most but not all states have adopted the UPAA. The UPAA spells out what should be present in a legally enforceable prenuptial agreement, and these provisions have been adopted into Utah’s state laws. For a prenuptial agreement to be legally valid in Utah, all of the following requirements must be satisfied: Can I Change or Terminate a Prenuptial Agreement After Marriage?Yes. After the parties are married, they can revise or even revoke the prenuptial agreement. No consideration is necessary to support this second agreement. Both parties simply have to agree and the new agreement must be in writing. What Can and Cannot be Included in Prenuptial AgreementsWhile no one wants to think about divorce before they even get married, prenuptial agreements (or premarital agreements) are intended to set certain terms in place in case the marriage ends. For instance, an individual with an established family business may seek to protect those assets from the other party in the event of a divorce. However, there are certain limitations to what can be included in a prenuptial agreement. Distinctions Between Separate and Marital PropertyEach state has its own separate laws that govern what types of property constitute separate property and what types constitute marital property (some states use “community property” laws, which often stipulate 50/50 asset splits). Upon separation by death or divorce, the court will separate all of the marital property according to the laws of the state. In order to avoid a court deciding what happens to your property attained during your marriage, you can use a prenuptial agreement. Protections against the Other Spouse’s DebtsWithout a prenup, creditors can go after the marital property even though only one spouse is the debtor. To avoid this, limit your debt liability in a prenuptial agreement. Provisions Providing for Children from Previous RelationshipsIf you have children from a previous relationship and you want to ensure that they inherit some of your property, you can use a prenup. Protections to Keep Family Property in the FamilyIf you have a family heirloom, family business, even a future inheritance, or other piece of property that you want to keep in your birth family, you can specify this in your prenup. Protections for Estate PlansPrenuptial agreements are only a part of ensuring that your estate plan is carried out how you see fit. Remember, that you must also create and secure other documents such as wills and living trusts. Directions for Property Distribution upon DivorceRemember that your state has laws that govern who gets what in a divorce. With a prenup you can bypass a lot of these laws by agreeing yourselves on who will get what. While some states prohibit it, other states even allow you to decide whether you will be entitled to alimony or not. Check your state’s law or with a family law attorney to clarify this issue when drafting the prenuptial agreement. Descriptions of the Responsibilities of SpousesThere are numerous reasons for a prenuptial agreement. Below is a list of items commonly included in prenuptial agreements: What Cannot Be Included In Prenuptial AgreementsState laws restrict what can and cannot be included in prenuptial agreements. Below is a list of things most states will not allow in prenuptial agreements: Provisions Detailing Anything IllegalEvery state prohibits you from including anything illegal in your prenuptial agreement. In fact, doing so can put the whole prenuptial document or parts of it at risk of being set aside. Decisions Regarding Child Support or Child CustodyA prenup cannot include child support or child custody issues. The court has the final say in calculating child support. The court determines child support based on a “best interest of the child” standard, with several factors at play. A court would never uphold a provision of a prenuptial agreement that dealt with child support, child custody, or visitation, because these are issues of public policy. The court retains the power to decide what is in the child’s best interest and will not deny a child the right to financial support or the opportunity to have a relationship with a fit parent. Waivers of Rights to AlimonyThis is the most commonly struck down provision by courts. A few states strictly prohibit this. Other states look down on it and limit your ability to give up your alimony rights. Some states do allow alimony waivers. Be sure to check with your own state’s laws. Provisions Encouraging DivorceDetails About Personal, Rather than Financial, MattersA prenup can’t include personal preferences, such as who has what chores, where to spend the holidays, whose name to use, details about child rearing, or what relationship to have with certain relatives. Prenuptial agreements are designed to address financially based issues. Any prevision discussing non-financial issues will not be upheld. Judges grow uncomfortable when they see private domestic matters included in a contract, and will often view the document as frivolous, striking it down. If you and your spouse do want to have an agreement about such things, do it in a separate document, with which the court will not have the power to intervene. Confused About What Can be Included in Prenuptial Agreements? Get Professional Legal HelpPrenuptial agreements can be beneficial for both parties, since they solidify the terms of a relationship and marriage before problems arise. But every prenup should get a thorough review by an attorney before they’re signed, since the cost of critical errors in the document could cost one or both of the parties later. Contact Ascent Law Attorneys today for some peace of mind. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
The post Can We Use Prenup To Keep Child Support Payments Reasonable? first appeared on Ascent Law, LLC.
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Bankruptcy And The Personal Guarantee Bankruptcy Case Dismissed Without Prejudice Can I Do A Postnuptial Agreement Without A Lawyer Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Ascent Law, LLC https://www.ascentlawfirm.com/can-we-use-prenup-to-keep-child-support-payments-reasonable/ For many of us, having conversations about money and the potential future end of a marriage can be uncomfortable at best. However, entering into an agreement to protect yourself can be a smart move in many situations. If you think of getting married as entering into a long-term partnership, it makes sense to establish the framework ahead of time. After all, you would not want to enter into a long-term business arrangement without having a legal contract in place. A couple who is not married yet and is trying to determine whether to enter into a prenuptial agreement or to wait and enter into a postnuptial agreement should give serious consideration to the prenuptial agreement. Before marriage, if one party does not like the provisions included in the proposed prenuptial agreement and the couple is unable to come to an agreement, they can simply decide not to get married. With a postnuptial agreement, the couple is already legally bound and the spouses owe a fiduciary duty to each other. There may be a concern that the provisions in a postnuptial agreement were not bargained for because one spouse did not really have a choice about signing the agreement. Postnuptial agreements are a relatively new development under U.S. law. Prior to the 1970s, postnuptial agreements were generally not enforceable. This was largely based on the idea that a married couple became a single unit at the time of their marriage and a single person or entity cannot enter into an agreement with itself. In the 1970s, when more couples began divorcing and more states enacted “no fault” divorce statutes, postnuptial agreements became more common and became more widely enforced. What Is Needed to Make a Valid Postnuptial Agreement?To be valid and enforceable, postnuptial agreements must, at a minimum, meet the following basic requirements: What Is Typically Included In a Postnuptial Agreement?Postnuptial agreements generally include the same types of provisions as prenuptial agreements. The primary difference is that prenuptial agreements are entered into in contemplation of marriage (in advance), whereas postnuptial agreements are entered into after the couple is already legally committed. To a large extent, what you can and cannot include in a postnuptial agreement will be governed by state law. Some of the provisions commonly included in postnuptial agreements are as follows: Postnuptial agreements can also provide for custody and support of minor children in the event the marriage ends in divorce or legal separation. However, this is one area where state law can restrict the provisions in a postnuptial agreement. Some state laws say that postnuptial agreements that attempt to restrict or limit child support or child custody will be deemed unenforceable. Different Types of Postnuptial Agreements• A means of dividing assets and providing for spousal support – The most common type of postnuptial agreement spells out how a couple’s assets and liabilities would be divided in the event of a divorce. These agreements also address alimony or spousal support and often include provisions stating that one spouse waives the right to such support in exchange for certain marital property. Property addressed and covered under this type of postnuptial agreement includes both marital property—that is property the parties acquired during their marriage and assets or other property each spouse brought into the marriage. When Couples Might Consider Entering into a Postnuptial AgreementWhen a couple enters into a postnuptial agreement, it does not automatically mean that they are thinking about filing for divorce. Here are some common reasons for entering into a postnuptial agreement: As every couple’s financial picture and living situation is different, there is not a one-size-fits-all answer when it comes to determining whether or not you should sign a postnuptial agreement. The best decision for you will depend on your own financial circumstances. How Courts View Postnuptial AgreementsAnyone considering entering into a postnuptial agreement with their spouse needs to understand that these legal documents are not ironclad. Even if a postnuptial agreement meets all of the threshold requirements to be valid and enforceable, courts may still strike it down. In some states, postnuptial agreements may not be upheld if both parties were not given the opportunity to review and discuss the terms of the agreement with their own, separate attorneys. Whether a postnuptial agreement will be enforced or not depends, to a large extent, on what state you live in. Some states take a hard-line approach to enforcing postnuptial agreements. If there is any indication that the parties did not make a full and fair disclosure to each other of their financial information, the entire agreement could be thrown out. The primary concern in creating a postnuptial agreement is to ensure that the assets and property divided in the divorce process occur with the wishes of the spouse. This involves spousal support and what other assets one person will receive from the estate owner at the time of the dissolution of the relationship. The legal requirements often apply to a lawyer hired to create the document and file it away until the couple needs it at the end of the marriage. While the prenuptial agreement is an option, some choose to believe that the other person is reasonable and will remain in the relationship. For any prenuptial or postnuptial agreement, the person with the assets must disclose all monetary matters. Without doing so, he or she may invalidate the agreement and the judge may throw it out if the marriage ends. The agreement must occur through written documentation and not in any verbal agreement between parties. The person signing the paperwork must do so voluntarily with no duress or coercion. He or she must sign of his or her own free will without any threats. The state may apply other conditions depending on legal changes. It is important for a lawyer to look over the document before and after the signature and file it away for a later date. The Agreement TermsFor legal purposes, the person having the other party sign the agreement must disclose all assets, liabilities and support. This includes property, debts and other holdings. In light of a dissolution of the marriage, the terms must remain fair to the other party. Any unconscionable conditions could lead to the judge throwing the entire document out. It must remain enforceable through proper and valid conditions placed on the other party. This could also connect to any immoral behavior on the part of the spouse signing the document. If the agreement exists in one of the states that handles affairs in a legal context, the person may provide little or nothing if the spouse cheats on him or her. The postnuptial agreement must contain information that is in line with the state laws. Any terms in violation of these laws could invalidate the document. Both parties must sign the agreement and have it notarized. Some states also demand that a witness is present for the signing. While the postnuptial agreement is normally similar to the prenuptial, there are some differences. When the couple is already legally wed, the agreement may contain a certain measure to protect the estate owner if the other person has an affair or enters into certain activities. However, the estate owner will need to review state laws to ensure he or she does not violate them. What to include in the agreement is important for the estate owner. Most of these items center on the assets and how to provide in the event of a divorce. How the property and assets divide is primary concern that the agreement should address. Payment of spousal support and how much is another section which may also detail how long this will last. Debts and liabilities will split depending on how old the agreement is and if any additional debts accrue. These include loans, credit cards and mortgages along with others. If one of the spouses dies before the marriage ends or before a divorce finalizes, the postnuptial agreement should specify how to pass the assets in this event. Other important and legal matters include custody and visitation of children. If the child or children are of a minor age, monetary support is generally necessary. The state laws may restrict or alter these provisions depending on how far from the law the agreement specifies. Limits in the agreement that restrict custody and support are often unenforceable by the courts. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Absolute Divorce VS. Limited Divorce Bankruptcy And The Personal Guarantee Bankruptcy Case Dismissed Without Prejudice Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Ascent Law, LLC https://www.ascentlawfirm.com/can-i-do-a-postnuptial-agreement-without-a-lawyer/ A bankruptcy dismissal happens when something goes wrong and the bankruptcy court rejects your case. There are many reasons this can happen and many consequences. The word “dismiss” shouldn’t be confused with discharge, which is when certain debts are eliminated. Instead, dismissal means that the bankruptcy case has been thrown out. The petition has failed. There is no longer a case. With almost all dismissals, the petitioner has wasted their time, although usually, one can try again soon, or after a waiting period. A bankruptcy attorney can help you rectify the issue. Filing for bankruptcy is a complicated process with many steps, forms, rules, and criteria for eligibility. The stresses of declaring bankruptcy can contribute to easy mistakes. One single mistake with any aspect of the bankruptcy process can be grounds for dismissal, so there is a lot of room for error. Also, because bankruptcy provides a much-desired relief, some candidates attempt to misrepresent their situation. This is grounds for a type of dismissal that has more serious consequences than dismissals related to honest mistakes. Causes of Bankruptcy DismissalHere are some specific reasons your bankruptcy case might be dismissed: Effects and Consequences When a bankruptcy petition is dismissed, all the time, money, and effort that went into the filing is lost, including the lawyer’s fees. Your debts are not discharged, or your payments are not restructured. Types of Bankruptcy DismissalThere are several types of dismissal, each with different consequences. Among them is dismissal with or without prejudice, voluntary dismissal, and dismissal for abuse. In many cases, as long the details of your petition were made honestly and in good faith, you can either reinstate a dismissed petition or file again right away. Sometimes a voluntary dismissal is sought because one’s circumstances change. Usually, this means you are able to pay back your debts and no longer need bankruptcy relief. However, a request for voluntary dismissal isn’t always granted. If your bankruptcy case was dismissed and you still wish to file, mistakes are not taken lightly. Anyone wishing to cheat the system could claim it was an accident; therefore, many mistakes will be cause for a dismissal that cannot be reinstated. Dismissals with or without prejudice imply that cases were either dismissed for a good reason, such as fraud or because of unforeseen circumstances or honest mistakes. A dismissal for abuse or with prejudice means the bankruptcy case can never be filed again. However, after a waiting period, usually half a year, a new bankruptcy case can be filed. Issues related to types of dismissals can be very different, so a great deal depends on your own particular circumstances. Taking Action after a DismissalIn cases of involuntarily dismissal or dismissal without prejudice, you can try to get your bankruptcy case reinstated if you move quickly and proactively. You’ll often have a small window to continue pleading your case before it’s thrown out, so you have to pursue the issue immediately. An honest mistake, or administrative dismissal, can sometimes be rectified by a “motion to reconsider” the bankruptcy case. This is your first step, combined with ascertaining and resolving the reason for the dismissal. A reinstatement is always an option, even if your mistake was an accident. There is also sometimes the option of filing an appeal. If a dismissal is final, sometimes you can immediately file a new one. But any case of dismissal with prejudice, or for abuse, involves a waiting period, usually 180 days. After that time you can file a new case, but your automatic stay might be limited to one month, making it more difficult to get approved. Worth repeating a final time is the fact that a bankruptcy filing will be recorded on your credit report as soon as you file it, and it could remain on your report even if your case is dismissed. Filing a second time will drop your credit scores further. What should you do after a dismissal?There is a chance to get your case reinstated if it was dismissed without prejudice, but you must act quickly. At first, dismissals are rarely final, and courts typically provide a small window of time where you can continue to plead your case or put forward a motion to reconsider. By putting forward this motion, you will also need to rectify the reason for the dismissal. When the motion to dismiss is final, you can either appeal or pay to file a new case immediately as long as your case was dismissed without prejudice. If it was dismissed with prejudice, however, you will need to wait six months before applying again. How to avoid dismissalIf you are honest, there is no reason, apart from human error, for your case to get dismissed. As such, one of the best things you can do is to invest your remaining money into a successful bankruptcy lawyer. Not only will they file the paperwork on your behalf, but a good lawyer will also make sure that you meet all of the eligibility criteria for bankruptcy before applying and that there are no other factors that could lead your case to be dismissed. Your case will most likely to be dismissed without prejudice if debtor: Refiling May Limit Your Automatic StayWhen you file for bankruptcy, you will get an automatic stay to prevent your creditors from collecting their loans or garnishing your money. However, when you file for a second bankruptcy within a period of time, then that automatic stay is limited to 30 days. After the 30 days, the creditors may begin to collect again unless you petition to the court to continue the automatic stay. The purpose of this limited automatic stay is to prevent bad faith bankruptcy filings. You Won’t Have the Same Protection from Creditors If You RefileWhen you file for bankruptcy, an automatic stay goes into effect that prohibits most creditors from starting or continuing collection activities. Bankruptcy laws impose certain limits on the automatic stay if you file multiple bankruptcy cases. The rules discourage debtors from filing for bankruptcy simply to delay or hinder their creditors. If the court dismisses your bankruptcy case and you file another case within one year, the automatic stay in your new bankruptcy will expire 30 days after your filing date. If you had two or more pending bankruptcies that the court dismissed within the past year, you wouldn’t get any automatic stay benefit if you refile. However, it’s possible to get the court to put the stay in place. If you have a good reason for the new filing or why the previous filings occurred then you can file a motion with the court asking for the automatic stay. The court will grant your motion if you prove that you filed the case in good faith. Why Do Chapter 13 Cases Get Dismissed?There are several reasons why a Chapter 13 case can be dismissed. Some are the same as for Chapter 7 cases. Things like not paying the court filing fee, not properly preparing for and attending the meeting of creditors, and not filing all required bankruptcy forms. Other reasons why a Chapter 13 bankruptcy case may be dismissed are: As you can see, the reasons for a dismissed Chapter 13 usually involve the debtor failing to do something the debtor is required to do under the bankruptcy rules. However, sometimes, a dismissed Chapter 13 case is due to something beyond the debtor’s control. For instance, if a debtor loses his or her job or becomes ill, the debtor may not have enough money to pay the Chapter 13 plan payments. If changing the plan payment or converting the case to a Chapter 7 case is not an option, there may be no choice but to let the Chapter 13 case be dismissed. Protecting the Petitioner During the Bankruptcy ProcessAs you move through the bankruptcy process, you are protected from your creditors by an injunction that is referred to as an ‘automatic stay.’ This injunction is used to protect you from nearly all the collection activities that your creditors use. The automatic stay goes into effect the day that you file your case. If your case is successful and you obtain a discharge, you are not required to pay back any of the debts that were discharged in your bankruptcy case. However, if you are not successful and your case is dismissed, it is deemed void, which means that you are still liable for all your debt. In addition, directly following the dismissal, your creditors are permitted to initiate or continue any litigation to garnish your income or foreclose on your property. Once you have filed for bankruptcy, you are required to follow certain procedures to obtain a discharge and be relieved of your debts. If these procedures are not followed, your case may be dismissed. Typically, the majority of Chapter 7 and Chapter 13 bankruptcy cases are dismissed because the debtor fails to: When a Chapter 7 or Chapter 13 bankruptcy case is dismissed without prejudice, the petitioner can immediately refile. Most of the bankruptcy cases that are dismissed without prejudice occur due to issues related to procedure. For example, if the petitioner fails to file the necessary forms with the court. Although the petitioner can refile immediately following this type of dismissal, he or she may need to file a motion to extend or impose the ‘automatic stay’ in the refiled case. Otherwise, collection activities will resume. Limits on Automatic StayEven when a bankruptcy case is dismissed without prejudice and the petitioner refiles right away, there may be limits placed on the automatic stay. For example, if a case is refiled within 12 months of dismissal, the automatic stay is limited to 30 days; however, if the petitioner had two or more bankruptcy cases dismissed within 12 months of the current re-filing, automatic stay will not be granted. Whereas a case dismissed without prejudice can be refiled immediately, the opposite is true when a bankruptcy case is dismissed with prejudice. A petitioner whose case is dismissed in this manner may not re-file for a specific length of time or, in some cases, prohibited from ever filing bankruptcy on the debts that existed at the time of the initial filing. Possible reasons that lead to a bankruptcy case being dismissed with prejudice include, the debtor: According to bankruptcy law, a debtor whose case was dismissed with prejudice cannot file another bankruptcy case within 180 days of the prior case if: Do I Need a Lawyer?Correctly filing a bankruptcy case is very important and complex. Hence, it is imperative to use an experienced Ascent law firm lawyers to help you file. Otherwise, your bankruptcy case will be dismissed and/or delayed. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Absolute Divorce VS. Limited Divorce Bankruptcy And The Personal Guarantee Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Ascent Law, LLC https://www.ascentlawfirm.com/bankruptcy-case-dismissed-without-prejudice/ A personal guarantee is a contract wherein an individual agrees to pay a business debt. A business owner will often sign a personal guarantee if a company needs to make a purchase on credit for things such as real estate, inventory, supplies, or services. By signing the agreement, the owner commits to paying the debt with personal (nonbusiness) funds if the company can’t satisfy the obligation. Personal guarantees are standard in the business world; primarily because opening a business can be a risky endeavor. New business ventures rarely have much in the way of value or assets. Additionally, many businesses fail, leaving creditors with unpaid invoices. As a result, most creditors won’t agree to extend credit for product or enter into a property lease with a new, unestablished business without requiring more. The supplier or landlord will seek to protect payment of the debt by asking the owner to agree to pay the debt on behalf of the company, if necessary. If the financed amount is significant, a lender might ask an owner of an established business to do the same. A business owner who consents to the arrangement will sign a contract called a personal guarantee. Once the personal guarantee is in place, the creditor can seek payment from the business owner’s personal assets if the business fails. When a company goes under, it’s common for someone who has signed a personal guarantee to wonder if there’s a way to get out of it. However, unless the lender agrees to waive it (which would be unlikely), or some fundamental flaw exists in the agreement, the personal guarantee will remain binding. In many cases, a business owner can file a consumer bankruptcy to discharge (wipe out) the personal guarantee. Filing bankruptcy has the added benefit of wiping out other qualifying debt, as well. If the proprietor doesn’t qualify for a Chapter 7 discharge, Chapter 13 might be a possibility; however, this chapter will require the debtor (bankruptcy filer) to make payments to creditors for three to five years before the balance of a dischargeable debt will get wiped out. Also, it’s important to understand that filing a Chapter 7 bankruptcy on behalf of the business will not get rid of a personal guarantee. To wipe out the debt, the actual signer of the guarantee must file for bankruptcy. What Happens to a Personal Guarantee in Bankruptcy?When you guarantee a loan for your business, friend, or family member, you make yourself liable for it. Luckily, you can usually wipe out your personal liability for debt through bankruptcy; including a personal guarantee entered into for your business. Why You Might Sign a Personal GuaranteeMost new companies don’t have much in the way of assets. To increase the odds of getting paid, a lender will require a personal guarantee before extending a property loan or another obligation, such as a lease contract or extension of credit for goods. If the business fails, the lender has two remedies to satisfy an outstanding balance: It can go after the business assets if any, and your personal assets. How to Eliminate a Personal Guarantee with BankruptcyIt’s relatively common for a business owner to file individual bankruptcy to get rid of a personal guarantee and most personal guarantees will qualify for discharge. If it’s a non-dischargeable debt, however, bankruptcy won’t help. Also, keep in mind that filing on behalf of the business won’t get rid of your personal obligation to pay back the guaranteed loan. In fact, in that situation, the personal guarantee will work against you. The trustee appointed to oversee the case will likely view the personal guarantee as a business asset and look to you and your assets for money to pay creditors. Similarly, if you signed a personal guarantee for a friend or family member’s loan, you’ll still be on the hook if they file for bankruptcy. You’ll have to file individual bankruptcy to get rid of the obligation. The exception is if the friend or family member pays off the debt in Chapter 13. Liens Remain in BankruptcySome personal guarantees include a security interest in your personal assets. In that case, the lender will typically have a lien on your property. A bankruptcy discharge will only wipe out your personal obligation to pay back debts not the lien. The lien will allow the lender to foreclose on or repossess the collateral regardless of your bankruptcy discharge. Even so, remedies exist depending on the chapter type you file. Personal Guarantees in Bankruptcy Chapters 7 and 13Each bankruptcy case is different. It’s common to have a lot of moving parts and considerations, so it’s best to meet with a bankruptcy attorney. In the meantime, here are a few things to consider. Chapter 7 BankruptcyIf you don’t have much in the way of income or property—primarily debt—Chapter 7 will likely be your best option. You can wipe out (discharge) qualifying debt, such as credit card debt and personal guarantees, in approximately four months. If you have non-dischargeable liability, such as a domestic support or tax obligation, you might be able to pay it over time by filing Chapter 13 immediately afterward. This strategy is known as Chapter 20. Chapter 7 also works well if you have a substantial income, and the majority of your debt is business debt. Here’s why. The means test prevents many people from filing for Chapter 7. However, when most of your debt is business-related as opposed to consumer debt, you aren’t subject to the Chapter 7 means test income qualification. This can be a huge benefit for someone with a personal guarantee liability. For instance, suppose that you still owe a significant amount of debt due to a personal guarantee from a failed business. However, now you’re making a sizeable income working for someone else. You might be able to discharge your debt quickly using Chapter 7 despite a salary that would generally preclude you from filing. Assuming, of course, that you aren’t concerned about losing property in Chapter 7. Find out if you’re exempt from the means test. In Chapter 7 bankruptcy, you might be able to avoid a non-possessory, non-purchase-money lien. To qualify, the creditor can’t have possession of the collateral, and you must have owned the asset before you pledged it as collateral. This applies only to certain types of property to the extent the lien impairs your exemptions. Exemptions are the laws that allow you to protect property in bankruptcy. Non-possessory, non-purchase-money liens can be avoided on assets such as tools of your trade, household goods and furnishings, jewelry, and professionally prescribed health aids. You can’t avoid a lien on your house or car (unless the vehicle qualifies as a tool of the trade like a delivery truck). Chapter 13 BankruptcyMany business people find this chapter helpful in several situations. You, as an individual, not the business, would be filing Chapter 13—companies can’t file. Unlike Chapter 7, you can keep all of your property, and in most cases, you’ll pay a smaller portion of your personal debt over time. Here are a couple of examples that illustrate how Chapter 13 can help. You’re still operating as a business, and you’re worried you could lose the company if you file for Chapter 7. It’s possible to improve your financial situation by getting out from under debt that you’re responsible for paying individually, such as credit card balances and personal guarantees. Chapter 13 lets you spend less on that debt for three to five years, and wipes out qualifying debt after completing the Chapter 13 repayment plan. Some business people find this approach helps free up assets and in turn, keeps the business going. What Happens When the Borrower Defaults on a Guaranteed Loan?If you default on your loan (usually by missing a payment), the lender has the right to ask the guarantor to take up the payments or to pay off the loan. At that point, the guarantor is subject to the same collection activities you would face under state law: telephone calls, letter demands, lawsuits, and even garnishment and property seizures. Just because the bank turns to the guarantor doesn’t mean that you will be off the hook, however. The lender can pursue you until the loan is paid in full (or you discharge it in bankruptcy). Also, if the guarantor pays the debt, the guarantor can also seek reimbursement from you. However, filing for bankruptcy will likely cut off the guarantor’s right to recover against you, as well. Who Can Be a Guarantor?Just about any willing person can agree to guaranty a loan taken out by someone else. In reality, most of the time when the borrower is an individual and the money is for personal or educational purposes, the guarantor is a parent, another relative, or a good friend. Additionally, creditors often require someone to personally guarantee a loan taken out by a business (primarily because of the frequency in which small businesses fail). The guarantor will have to submit to a credit check at least as rigorous as the borrower’s, have sufficient income and resources to pay the loan back if that becomes necessary. In some institutional lending programs, like student loans and small business loans, banks and other financial institutions make the loans, but the guarantor is the federal or state government. If you default, the government agency pays off the bank and takes ownership of the loan. You will then have to deal with the government agency to rehabilitate the loan or to pay it off. Even with a government guaranty, the lender can still request that you supply a person to provide additional surety. When the borrower is a small business, the lender will routinely expect the owners or principals of the business to personally guarantee the business loan. Doing so offers the bank and the institutional guarantor added security in the event the company falters. In fact, when the loan is guaranteed by the Small Business Administration, anyone with an ownership interest of 20% or more must personally guarantee the loan. In some cases, the lender might ask spouses of guarantors to sign also to ensure that the parties most affected are aware of their responsibilities and of the consequences they could face. Effect of a Guaranty on a LoanObtaining a guarantor can save a borrower money because banks sometimes will reduce the interest rate on guaranteed loans if it lowers the bank’s risk of loss. It’s not always the case, though. Lenders often ask for guarantors when the original borrower has credit issues, which may mitigate in favor of a higher interest rate. Some financial institutions will let you borrow more if you have a guarantor. For mortgages, the lender might let you finance 90% of the value of the house or make a smaller down payment. Considerations for the GuarantorIf you’re considering whether to guarantee a loan, you might want to answer these questions before you sign on the dotted line: Can a Guarantor Wipe Out a Guarantee in Bankruptcy?In many cases, yes (but not all—for example, a guarantee for an educational loan won’t go away unless you can show undue hardship). In fact, it’s a common reason that people file for bankruptcy. For instance, suppose that you took out a business loan to pursue your lifelong dream of opening a cupcake bakery. Because your business was new, the bank asked you to execute a personal guarantee. By signing the guarantee, you agreed to use your personal assets to pay off the loan if the business was unable to do so. If the cupcake business dried up and the bakery closed, you’d likely be able to wipe out the guarantee in Chapter 7 or Chapter 13 bankruptcy. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Can I Write My Own Will In Utah? Absolute Divorce V.S. Limited Divorce Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Ascent Law, LLC https://www.ascentlawfirm.com/bankruptcy-and-the-personal-guarantee/ When a marriage is over, the most common path people take is to file for a divorce to end things permanently. But in some cases, couples aren’t quite ready to take that final step. In many states, the law provides an alternative—a middle ground so to speak. When people talk about divorce, an absolute divorce is usually what they’re referring to. It’s called “absolute” because it’s the type of divorce that ends the marriage once and for all. In most states, the laws simply refer to “divorce” or “dissolution of marriage.” In an absolute divorce, the court (or the couple’s marital settlement agreement) will address all of the legal issues involved in ending the marriage, such as alimony, child support, child custody, and property division. Once the court has issued a judgment (or “decree”) of absolute divorce, the spouses no longer have any of the rights or privileges that arose when they got married. These include things like the ability to file a joint income tax return, the right to automatically inherit a share of each other’s estate, and the chance to obtain insurance benefits through the other spouse’s employer. In order to obtain an absolute divorce, you must meet your state’s residency requirements, and you must have “grounds” (acceptable legal reasons) for ending the marriage. The laws in some states use different terms including “dissolution of marriage” and “absolute divorce”—to mean basically the same thing as plain old divorce: a legal proceeding that will permanently end a marriage, along with all of the rights and privileges that come with marriage. Once a judge finalizes an absolute divorce, both spouses are free to remarry. You might also hear the terms “contested divorce” and “uncontested divorce.” These don’t refer to the effect of divorce—the legal end of the marriage—but rather to the process of getting there. In an uncontested divorce, the spouses have worked out a settlement agreement on the issues in their divorce rather than having a judge make the decisions for them. The agreement must at least include provisions for dividing the couple’s property and debts, alimony, and if they have minor children—custody, parenting arrangements, and child support. Without an agreement, couples will need to go through the process of getting a contested divorce which can be expensive, time consuming, and stressful. If you want the advantages of an uncontested divorce but are having trouble resolving your differences, divorce mediation could help you work through the stumbling blocks and come up with solutions. What Are Requirements for Absolute Divorce?Although the laws on divorce are quite different from state to state, there are basically three sets of requirements for getting a divorce: residency requirements, having an acceptable reason for divorce, and going through the proper legal steps. Residency Requirements for Absolute DivorceState laws have residency requirements for divorce to prevent people from filing for divorce in a state where they haven’t been living, just so they can take advantage of the laws in that state. These requirements also make it more likely that the legal proceedings will be in courts that are accessible to both spouses. Depending on the state, the amount of time you must have lived there before filing for divorce typically ranges from three months (in Colorado) to six months (in California, Utah Texas, and Florida). In some states, the residency requirement depends on the circumstances, including where you were married and where the reason for your divorce happened. Grounds for Absolute DivorceWhenever you file for divorce, you must state the reason you want to end your marriage and that reason must be one of the grounds for divorce allowed in your state. Historically, these grounds were based on a spouse’s misconduct (or fault), like adultery or desertion. But all state laws now include some variation of no-fault divorce, such an “irreconcilable differences,” “irretrievable breakdown of the marriage,” or separation for a certain amount of time. And several states allow only no-fault divorce grounds. If you want a divorce for a no-fault reason, you generally only have to check the appropriate box on your divorce papers, without providing proof. But some states (like Wisconsin) will require that you testify under oath about the breakdown in your marriage, and if your spouse disagrees, you might have to meet further requirements, such as a lengthy separation, before you can get divorced. Legal Steps for Getting an Absolute DivorceThe divorce process involves a number of legal steps, starting with filing the initial divorce papers (usually a petition or complaint, along with various other forms) and paying a filing fee. If you have a lawyer, your attorney will take care of all the paperwork and filing for you. But depending on your situation particularly if you have an uncontested divorce you might be able to handle it by yourself, or you can get help with the paperwork from an online divorce service. Generally, the spouse who starts the process will have to serve the divorce documents on the other spouse, who will have a certain amount of time to file an answer. In some states, you may skip these steps after filing for an uncontested divorce, when you’ve included the written settlement agreement signed by both spouses. At this point, the legal steps will depend on whether you have a contested or uncontested divorce, as well as the laws in your state and the particular circumstances in your case. For instance, you might be required to exchange detailed information about your finances, take a parenting class, or participate in mediation of certain disputes (especially unresolved disagreements about child custody). With contested divorces, you’ll go through the legal “discovery” process for gathering evidence, such as custody evaluations or real estate appraisals, and you might have several intermediate court hearings on issues like requests for temporary support or custody orders. Generally, the process will end with a final hearing, either a trial on any unresolved issues or a brief hearing when the judge will review your settlement agreement and ask you a few questions. But in some states, you might not have to attend a final hearing for an uncontested divorce. Instead, the judge will simply review your agreement and other paperwork, then will sign your final divorce decree if everything is in order. Many states have a mandatory waiting period before the judge may finalize your divorce, even when your case is uncontested. Limited DivorceFor folks outside the legal profession, the fact that there can be more than one kind of divorce may come as a surprise. A divorce is a divorce, right? Marriage over, drop the mic, move on. And that would be correct if you were talking about actually ending the marriage. But in a few states, something called “limited” divorce enters the picture. Does limited divorce mean that you’re kind of divorced? In one way it does, because a limited divorce has some of the same effects as an absolute divorce in terms of the rights and liabilities spouses have. The major difference between the two is that when a limited divorce is over, you’re still married. Unlike absolute divorce, you’re not free to marry anyone else. The reality is that “limited divorce” is actually akin to a court-sanctioned separation. In the states that have this option, you file your limited-divorce papers (known as a “complaint” or “petition”) with the court, the same way you would start an absolute divorce. Normally, there are similar rules, like meeting residency requirements and having grounds. And a limited divorce can usually address the same issues (custody and so on) that you find in absolute divorce. Only a few states, actually use the term “limited divorce.” Other states, like New Jersey and Virginia, refer to limited divorce as “divorce from bed and board.” On the whole though, most states that provide for limited divorce use the term “legal separation.” You should be aware that not all states allow limited divorce or legal separation, no matter what it’s called. And in states that do, there may be limitations on using it. Why Would Anyone Choose a Limited Divorce?A limited divorce can be just as time consuming, anxiety laden, and expensive (think legal fees) as an absolute divorce. So it’s reasonable to wonder why anyone would opt for it if you’re still going to be married when it’s over. Actually, there are a number of potential reasons. • Although divorce doesn’t have the stigma it once did, there are still people who are concerned about “how it looks,” In those circles, a legal separation may be more socially acceptable. Alternatives to Absolute DivorceMost couples don’t decide to end their marriage without first thinking about other options. Typically, they’ve already tried to repair the damaged relationship with individual therapy, couples counseling, or even a trial separation. If you’ve tried to work things out with your spouse and haven’t been successful, but you’re still not ready to jump on the divorce track, you may have other options. Many states offer couples the option to file for a legal separation, which is sometimes called “limited divorce” or “divorce from bed and board.” These different terms refer to a legal status that doesn’t end the marriage (and doesn’t allow either spouse to remarry) but allows judges to issue orders dealing with child custody, child support, alimony, and property division. Couples may also sign a separation agreement to settle these issues for themselves. Although limited divorce or legal separation is uncommon, it’s still available for couples who need it. For example, if you and your spouse practice a religion that prohibits divorce, legal separation or limited divorce may be your preferred option for living separate and apart, while continuing to be faithful to your church. For other couples, an absolute divorce may simply be too permanent of an option, but they still want to disentangle their legal and financial obligations. If you aren’t sure which option is right for you, it may be time to speak with a qualified family lawyer. In terms of whether a separation agreement is considered a legal separation, the answer can be a little confusing. As you saw above, a true legal separation is one that goes through the courts. If you live in a state with legal separation (or limited divorce) and you reach a separation agreement with your spouse, you typically will have to submit the agreement for a judge’s approval in order for the agreement to be part of the separation or limited divorce judgment. But in states without legal separation, the court doesn’t have to be involved with a separation agreement. That said, a separation agreement that’s properly signed by both spouses is a legally binding document. It’s essentially a contract between them. So if one spouse violates its terms, the other spouse can go to court to force compliance, just as you would with any breach of contract. (Except the case would be heard in family court rather than a general civil court.) The beauty of separation agreements is that if you eventually decide to file a divorce complaint, whether absolute or limited, the fact that you’ve already resolved all your issues will make the divorce process easier. The court will consider your case “uncontested,” and your separation agreement will become a part of the divorce judgment. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
The post Absolute Divorce VS. Limited Divorce first appeared on Ascent Law, LLC.
4.9 stars – based on 67 reviews
Using A Divorce Mediator In Utah Can I Write My Own Will In Utah? Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Ascent Law, LLC https://www.ascentlawfirm.com/absolute-divorce-vs-limited-divorce/ |
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