So you’ve had a couple, or three or four drinks and decided to get behind the wheel of your car. You haven’t necessarily done anything wrong such as speeding or getting into an accident but you’ve been pulled over anyway. One of the main things that many people with these types of charges have is jail time. You will often find that if you are a first time offender you might end up with simple probation. Those that decide to take this situation on themselves and don’t have a DUI lawyer you might often find themselves in lockdown for several days or months. If you have an experienced attorney on your side then you might be able to avoid spending that time behind bars. A DUI lawyer from Ascent Law LLC can also help you keep your license. When you are formally charged with a charge like driving with intoxicated your license is normally suspended within 10 days of the arrest. If you get an attorney immediately then he can help you get the paperwork filed so that you can keep your license. Now if you are a multiple-time offender your attorney might not be able to save your license. He can possibly help reduce the time that you are without it, but no matter how experienced your attorney is, there is only so much they can actually do. A DUI lawyer can also help reduce the amount of jail time if any, that you will have to serve. Like with your license, you will be subject to your record and to the letter of the law. If you are a first time offender, however, your attorney might be able to get any time commuted down to probation and fines instead of spending the time behind bars. Having an experienced attorney can be your best bet in keeping yourself out of jail and on the road even if you’ve made a mistake such as driving under the influence. You really need to have a DUI lawyer on your side during this time. If you have recently been arrested because you decided to drink and drive, then you need to know what you face and you must hire a DUI defense lawyer to protect your rights. This is a necessity and there are always lawyers that are willing to take these cases and work with you on a payment plan if necessary. Here are some things to help you out. You must start by understanding that you could face jail time, a license suspension, probation, community service, and many other penalties. Some states have even started putting a breath analyzer on the cars of those that get arrested for drinking and driving to keep them from doing so again. Some also make you take a pill that will make you get sick if you drink. With a DUI defense lawyer, you will have a better chance of getting the minimum penalties and possibly getting out of the DUI charge altogether. They know how the system in your area works, they know the judge, and they know the prosecutor. This works in your favor and the DUI defense lawyer will be able to negotiate a better deal for you than you will be able to do on your own. This is a serious offense and many states have started to take it much more serious than they ever did in the past. This means that you will have to pay some fines for sure, but you can negotiate a deal, especially if it is your first offense. This could be a deal that includes minimum penalties and the chance to get the DUI off your record as well. If you are someone that loves to party all night long and then you immediately get behind the wheel and race with your friends, then that is really something that will get the cops angry on you. You might say that you are doing fine behind the wheel and that there is nothing wrong that can happen, but the law is the law and it doesn’t really matter if you’re a superhero or not, you will need to abide by it. Thus, if you will get to meet the police on the way and they will stop you and notice that you are drunk, you will certainly need to consider getting yourself a DUI Attorney. You will see that he will know exactly what to do in order to get you out of the mess that you have fallen into. Some people will think that they are so smart and they will delve into getting out of this situation by themselves, by that will certainly be a mistake, as every case is different and has a certain degree of complexity. You will sooner or later need professional help from a Utah DUI Attorney. When you will get in touch with such a lawyer, you will not have to worry about the outcome of the trial in court, for he will swing things around so that you will get to win the trial. He has the necessary know-how that he will certainly employ in order to get you out of this mess. You will see that the prices for such lawyers will vary and you will need to get one according to your budget. If you think that getting one is too expensive for your pockets, then think of the fact that going to jail is not something that will make you happy. So spending a few extra hundreds of dollars will only be to your benefits. There might be errors in the tests you took, for example in the blood tests or in the chemical tests. There are some cases in which the equipment the specialists are using is very much old and not working up to par, so this is the perfect scenario for a mistake to slip in. These are important things that a lawyer will consider when he will be trying to win your case over the accusation. Always make sure to get a good DUI lawyer, as your chances of getting away with it will increase a lot. A strong lawyer will be able to get you out of bars when you are faced with a DUI charge. You will usually be charged with fines, but at least a good lawyer will spare you from extreme punishments, such as spending time behind bars and revocation of your driver’s license. Even if you are guilty, your lawyer will be able to lighten your sentence, like doing community service instead of spending time in jail. Since you are presumed innocent until proven guilty, you may be able to receive a trial if you have a good lawyer. There are some states that already give jail sentences even if you have no previous record of any DUI offenses, so an experienced DUI attorney can come in handy.If you are having trouble finding an attorney to work for your case, you can ask the help of companies that introduce clients to capable lawyers who will assist them in their respective cases. However, you should take note that the services of these lawyers may be a little expensive, but at least you can be assured that you are going to avoid jail time with your DUI case. Remember that your lawyer will be the one to determine whether your case is worth fighting for or not. Until then, always presume that your case can be fought during the trial and hire the services of a capable attorney. If you fight, you may still be able to keep your license or at least secure a temporary one rather than have your license instantly suspended or revoked. Ways to get out of a DUI chargeDUI or Driving Under influence is the act of operating any vehicle under the influence of alcohol or other drug. DUI can be charged if the person is found driving after or during the consumption of alcohol or other drugs. Hire a DUI AttorneyDUI is a serious crime that carries a high penalty. If you or any of your friends are charged under this law, the following information on DUI lawyers and DUI law will surely help you in this case. The first step to follow is to act quickly. You need to look for a good DUI lawyer to represent you. Need for DUI LawyersThe DUI conviction can be costly and result in a long stay in jail or worse. Hence, professional legal representation is strongly suggested. If you do not go for the DUI/ DWI lawyers to defend your rights, you may perhaps face • Long Period Imprisonment • Job Loss • Cancellation of Driving License • Insurance coverage difficulties • Probation • Restricted interstate or international travel • Impoundment of vehicle Common DUI Defense Strategies• Bring the witness that can testify that you were sober and had permissible BAC at the time of driving. • Question the accuracy of breath analyzer BAC reading. • Prove that the officer requested or tricked a person into driving drunk. • Prove that the defendant honestly believed that his BAC was below the legal threshold. • Prove that the alcohol or drug was ingested without his/her knowledge. • Prove that you had only lawfully prescribed substances in your body, without being advised not to drive after taking it. • Prove that the defendant’s BAC was in permissible range while driving and went above the limit for a significant amount of time after the arrest. All these strategies are not available in every case. Every defense will require tangible facts to back it up in order to stand a chance in court. Preparation, knowledge and an excellent DUI attorney are the best defenses. Your DUI attorney should be an expert in all the intricacies and nuances involved with DUI offenses. DUI Lawyer Free ConsultationWhen you need legal help with a DUI in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you. We can help you with felony criminal charges. Misdemeanor criminal charges. DUI. Drunk Driving. Drug Crimes. Sexual Assault Crimes. Assault. Battery. Theft Crimes. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Criminal Defense Lawyer Tooele Utah What Makes A Will Legal In Utah? Medical Malpractice Insurance Law via Michael Anderson https://www.ascentlawfirm.com/can-a-lawyer-get-you-out-of-a-dui/
0 Comments
Utah probate law can be complicated. When you live in Salt Lake County, you should speak with a lawyer when it comes to probate administration or a will contest. Your will has to be probated before the beneficiaries of your will get the share you have bequeathed them. Speak to an experienced Salt Lake Utah probate lawyer before you make your will. If a person passes away without making a will, then his estate will be distributed according to Utah intestate laws. Every will has to go through probate before the beneficiaries get their share. Probate is the legal process by which a court validates the will. If your close relative has passed away living behind a will, contact an experienced Salt Lake Utah probate lawyer. It’s important that the will is probated. For this you must file an application in the probate court and pay the probate fee. Under Utah law, each child has a right to a share of your estate. The terminology applied to the nonmarital child through history reflects the increasing generosity of the law toward the child. The bastard of the early common law gradually became the illegitimate child, a term used in state laws during most of the twentieth century. While “illegitimate child” is less jarring than bastard, it is both stigmatizing and imprecise; regardless of one’s views about sexual relationships outside of marriage, the child herself has done nothing improper. Recognizing that it is unfair to brand an innocent child as illegitimate, commentators in the last quarter of the twentieth century began to refer instead to the child born out of wedlock—an improvement over “illegitimate,” but certainly a mouthful. Today commentators increasingly use the less cumbersome term nonmarital child. The term is simple, accurate, and entirely nonjudgmental. Statutes in many states now use the modern term, but “illegitimate” remains on the books in some states. Supreme Court CaseIn 1968 the U.S. Supreme Court decided the first in a long series of cases involving state discrimination against nonmarital children. The timing of the case is not surprising; as the nonmarital birthrate began its rise in the late 1960s, it was inevitable that an “illegitimate” child (or someone on her behalf) would challenge state laws that denied her the benefits received by her “legitimate” counterpart. Among those challenges were three cases in which a nonmarital child sought to inherit from her intestate father’s estate. In 1977 the Supreme Court decided Trimble v. Gordon, the landmark case whose facts are outlined at the beginning of this book. Even in 1977 states still commonly placed substantial hurdles in the path of the nonmarital child seeking to inherit from her intestate father. In Trimble, the decedent Sherman was a homicide victim. His daughter, Deta Mona, claimed to be an heir of his intestate estate, which consisted of a vehicle worth about $2,500. Although Sherman had never married Deta Mona’s mother, no one disputed that Sherman was Deta Mona’s father. In fact, during Sherman’s lifetime a circuit court had entered a paternity order against him requiring him to pay child support. At the time of Sherman’s death, however, Illinois probate law recognized a nonmarital child as an heir from and through her deceased mother only; state law did not recognize a child such as Deta Mona as an heir from and through her deceased father if the child’s parents had not married each other. Under the statute, therefore, Deta Mona received nothing— despite the paternity order and Sherman’s open acknowledgment of Deta Mona as his child during his lifetime. Under existing law, Sherman’s heirs were his parents and siblings. Had Deta Mona been a marital child, she would have been Sherman’s sole heir under the Illinois statute and thus the recipient of the vehicle. Deta Mona and her mother unsuccessfully challenged the constitutionality of the statute in the Illinois state courts. Ultimately, however, the Supreme Court ruled in Deta Mona’s favor. The Court concluded that, rather than simply rubber-stamping state laws concerning illegitimate children, courts should engage in a more searching inquiry—one that is now called intermediate scrutiny. Illinois had asserted that its statute furthered the state interest in promoting “legitimate” family relationships. The Court found, however, that the statute bore only a “most attenuated relationship” to that goal. The Court easily rejected the notion that adults will refrain from “illicit” or nonmarital relationships if the state imposes an inheritance penalty upon their children. The Trimble opinion meant that state probate codes could no longer attempt to promote “legitimate” family life by punishing nonmarital children for the perceived sins of their parents. At the same time, however, the opinion recognized that states do have an important interest in facilitating an orderly disposition of a decedent’s property. Because of the state interest in its probate process and the difficulty of proving paternity at the time Trimble was decided, the Court concluded that state probate laws can impose some demands upon a nonmarital child claiming a part of her father’s estate that are not imposed upon a marital child making a similar claim. Moreover, state probate laws can impose some demands upon a nonmarital child claiming part of the estate of her father that are not imposed upon a marital or nonmarital child claiming part of the estate of her mother. The Illinois statute, however, had gone too far: it had not merely imposed higher demands upon Deta Mona but had altogether excluded her from inheriting, even though Illinois courts had established Sherman’s paternity during his lifetime. Paternity Claims against the Estate of the Putative FatherIf the man died with a will that does not specifically provide for the child, in some instances the child may still obtain part of the estate through class gifts or as a pretermitted heir. Even if a child who successfully asserts paternity takes no assets directly from the estate, the paternity determination can still be important in enabling the child to claim various benefits as a child of the decedent— things like Social Security payments based on the decedent’s earnings record and inheritance rights from other relatives of the decedent. Speak to an experienced Salt Lake Utah probate lawyer to know how you can make a claim. Merely making a claim will not suffice. You must back your claim with proper evidence. If state law precluded the putative father from establishing paternity of the child, the decedent’s “legitimate” family may claim that the law should similarly preclude the child from establishing paternity at the decedent’s death. The decedent’s legitimate family may also attempt to avoid the paternity claim by promptly administering or divvying up the estate, thereby hoping to foil the nonmarital child’s attempt to develop her case. Moreover, courts may have little sympathy for a nonmarital child who appears to have intentionally and unreasonably waited to assert her claim until the putative father’s death, or who has previously inherited from a nonbiological (but presumed) father. Evidentiary rules may also severely restrict testimony that the child can put forth against the decedent and his estate. And, of course, the decedent may have taken to the grave much of the evidence that he alone could have provided on the paternity question. In some respects, however, nonmarital children are similar to potential creditors of the estate. Published notice of estate proceedings to creditors is often also made binding against nonmarital children when the estate administrator acts in good faith and is unaware of the existence of such children. Like other creditors, the nonmarital child must file her claim against the estate within the period prescribed by Utah law. If you are seeking your rightful share in the estate of a deceased parent, contact an experienced Salt Lake Utah probate lawyer. The lawyer can help you get your rightful share and prevent it from going into the wrong hands. Since the adopted child is a full-fledged member of the new family, she usually has the right to inherit not only from, but also through, her adoptive parents. In other words, for inheritance purposes the law treats her as though she were the adoptive parents’ biological child. She is thus a potential heir of her adoptive father’s relatives, even though no blood ties exist between her and them. The old “stranger-to-the-adoption” rule—whereby adopted children could not inherit through an adoptive parent from the adoptive parent’s relatives who were not parties to the adoption—has fallen by the wayside. And what if the child adopted into a new family dies intestate? Not surprisingly, intestacy statutes typically exclude biological parents from sharing in the child’s intestate estate. Intestacy statutes also typically provide no heirship rights for other pre-adoption relatives of the child. In contrast, the child’s adoptive parents are potential heirs. Moreover, the adoptive parents’ relatives are also likely to be potential heirs of the child under intestacy statutes. This would include siblings in the adoptive family or the adoptive grandparents, among others. Utah probate law is complex. Attempting to navigate this complex maze can be tricky. It’s easy to get lost in the rules and forms. If you want to probate a will that has been left behind by a deceased relative, your best source of advice is an experienced Salt Lake Utah probate lawyer. The lawyer will help you file for probate. Remember, every will in Utah must go through probate. For this, you need to make an application to the probate court and pay the probate fee. During the probate process, anyone who feels they have been wrongly left out of the will or have been denied their rightful share can challenge the will. If you believe you have been wrongly left out of a will or have been denied your rightful share, all you need to do is get in touch with an experienced Salt Lake Utah probate lawyer. The lawyer will review the will and challenge it in the probate court ensuring that you get what’s yours. Salt Lake City Utah Probate Lawyer Free ConsultationWhen you need legal help with a probate case or estate administration in Salt Lake City Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Estate Planning. Last Wills and Testaments. Living Trusts. Trustee Succession. Guardianship. Conservatorship. Probate. Powers of Attorney. Health Care Directives. Estate Disputes. And much more. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
What Constitutes A Legal Will In Utah? via Michael Anderson https://www.ascentlawfirm.com/probate-lawyer-salt-lake-city-utah/ While a divorce may end all your marital obligations to your ex-spouse, it may not end all your financial obligations. Even in a divorce that doesn’t involve children, you may owe your ex alimony or spousal support monthly payments designed to limit any unfair economic effects of a divorce by providing income to a non- or lower-wage-earning spouse. But determining how much a spouse will owe or receive in alimony isn’t always so straightforward. Here are five factors courts, attorneys, and soon-to-be exes can use to figure out the amount of alimony in a divorce. • Alimony Calculator: To give divorcing parties an estimate of what alimony payments will be, some law firms, state bars, and other online legal resources offer “alimony calculators” that allow you to plug in a few key factors like income, earning, and standard of living during the marriage, and get an estimate of their alimony obligations. • Standard of Living: It’s a phrase that gets thrown around (and misunderstood) a lot during divorce proceedings, especially separations of the rich and famous. But standard of living can come into play during any divorce involving a large disparity in income. • Reasons For Reducing Spousal Support: Just because alimony payments are set at a certain amount initially, doesn’t mean they will always stay that way. Significant changes in life circumstances can mean altering or reducing spousal support. • When Does Spousal Support Stop: Sure, the amount may change, but can you ever stop paying or receiving alimony altogether? While the parties can end spousal support by agreement, there are also some state laws that end financial obligations after certain life events. • What to Do When Your Ex Stops Paying Alimony: If an ex-spouse stops making spousal support payments before the obligation ends, what can you do about it? While not paying alimony doesn’t have the same legal and financial consequences as skipping out on child support, a non-paying ex could be charged with contempt of court if they stop paying alimony. Eligibility for spousal supportSpousal support is the equivalent to what is traditionally called alimony. Spousal support is an item separate from child support. Alimony is not a guaranteed part of your divorce. Circumstances such as adultery or abandonment nullify the spouse’s rights to request spousal support. Typically spousal support is awarded for a spouse ending a long term marriage (10+ years) where one spouse has minimal income earning potential. Eligibility Factors for Spousal Support• Living standards while living together – is there a financial need? • Length of time married • Receiving spouse’s age, earning potential, physical condition • Paying spouse’s earning capacity, financial situation, debts • Contributions to the marriage of value but not income producing Calculating Spousal Support AmountsSpousal support payments are calculated and awarded by the court. There are no set formulas for calculating spousal support. The financial support calculation process could be considered to be subjective and arbitrary. The basis for any award of support (alimony) is generally based on the needs of one spouse and the ability to pay by the other spouse. Temporary Spousal SupportTemporary support is often awarded while a divorce process is being managed. This could be especially important when a spouse has no income source and will be living alone. Temporary support payments may be ordered to be paid weekly, bi-weekly or monthly. Permanent Spousal SupportPermanent support is a misnomer as this is usually awarded for only a limited duration of time. It is almost a certainty that spousal support will be for a limited period of time. The general thought is that this money is provided for a period of time that allows the spouse to become self sufficient. Even if long term support is awarded the amount may be reduced through a support modification request. How Long Does Spousal Support LastThe duration of support payments varies. It may be time based such as 1/3 the length of the marriage, or based on the amount of time it may take the receiving spouse to develop an income stream. Paying support can end abruptly through a divorce modification process if the paying spouse can prove the situation of the receiving spouse has dramatically improved (i.e., wins a lottery, receives a large inheritance, new marriage, etc.) The person paying support may be able to modify the amount of monthly payments by proving chronic financial hardship. Spousal Support ModificationsSupport Modification is a hot topic throughout the time period where support payments are required. Often, a person’s income changes substantially which directly impacts the need for or ability to pay financial support. Contempt for non-payment of alimonyFailure to pay any court mandated support is cause for arrest on charges of contempt of court. It is not uncommon for a support payment to be late however; habitual payment problems or deliberate refusal to pay can result in jail time or garnishment of wages. In the past, courts awarded alimony only to women. Now, women make up more of the work force, and they can receive property when a divorce occurs. As a result, some women find themselves on equal or even higher footing than their male counterparts when going through divorce. In awarding alimony, a court considers several factors, none of which is gender. These factors include: each party’s ability to obtain employment; each party’s future earning capacity; one party’s ability to pay alimony to the other party; which party has custody of any minor children; the length of the marriage; and then length of time one party needs financial support from the other party. Average Duration of AlimonyIn short and medium-length marriages, courts generally award alimony for a duration of one-half to one-third the length of the marriage. For marriages of 20 years or more, a court may award permanent alimony, depending on the age of the spouse receiving alimony. For example, for a marriage that lasted at least 20 years, the spouse receiving alimony can receive permanent alimony if the spouse is over age 50. The recipient of alimony receives alimony payments as long as the spouse has a need for support. Therefore, when the alimony recipient remarries or cohabits, the spouse’s alimony payments can be discontinued. Once your divorce is final and alimony decisions are made, either by the court or through your own agreement with your ex, they can be changed. Once again, it depends. If alimony is granted for an extended period, it normally terminates if the receiving spouse remarries, unless there’s an agreement or court order to the contrary entered at the time of the divorce. However, judges in some states, in some circumstances, have the discretion to continue alimony even after the spouse receiving it remarries unless your written settlement agreement specifies that payment will stop if one of you remarries. if the alimony recipient starts living with a partner, rather than remarrying, Alimony may still be terminated or reduced, depending on where you live and the circumstances: • Most states will authorize reduction or termination of alimony upon cohabitation only if the cohabitation significantly decreases the recipient’s need for support. • Other states will terminate alimony regardless of whether the recipient’s economic need is diminished by cohabiting. • In still other states, alimony will not be affected should the spouse who receives it begin living with someone. In those states that do not have laws or court decisions that specifically address the impact cohabitation might have on alimony, it is difficult to predict how a judge will rule. Regardless of state law, if you and your ex-spouse have made an agreement that support or alimony won’t be affected by the person who receives it living together with someone new, your agreement will stand. And bear in mind that the person requesting a change in alimony or support payments is the one who must prove that an ex-spouse’s economic situation has changed significantly. The controlling statute that the court must consider in establishing permanent spousal support states the following: The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: • The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. • The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. • The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. • The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living. • The needs of each party based on the standard of living established during the marriage. • The obligations and assets, including the separate property, of each party. • The duration of the marriage. • The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. • The age and health of the parties • Documented evidence of any history of domestic violence between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. • The immediate and specific tax consequences to each party. • The balance of the hardships to each party. • The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time • The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award • Any other factors the court determines are just and equitable. Length of Spousal SupportA general rule is that spousal support will last for half the length of a less than 10 years long marriage. However, in longer marriages, the court will not set alimony duration. The burden will be on the party who pays to prove that spousal support is not necessary at some future point in time. The duration of spousal support is left to the discretion of the court within certain general equitable principals and guidelines most often set forth in common law case histories. In the late 1990s, alimony duration was linked to a transition period from married to single life. The circumstances vary from person to person, but the courts rarely favor “lifetime support.” To give you an idea of how long do you pay alimony, the duration guidelines are as follows: • If your marriage lasted up to 15 years, the duration of maintenance may be between 15% and 30% of the total time you were married; or • If your marriage between 15 years and 20 years, the duration of maintenance may be between 30% and 40% of the total time you were married; or • If your marriage lasted more than 20 years, the duration of maintenance may be between 35% and 50% of the total time you were married. Gross IncomeBasing calculations on net earnings alone could potentially overlook sources of income, so some states use gross figures. If you work for someone on a salaried basis and have no other income, your net earnings would be a reasonable reflection of what you have available to pay alimony: your salary minus allowable deductions such as for taxes. While other income may not be subject to withholding, however, it still contributes to your overall available resources. For example, your employer might supply you with a car, so you don’t have a car payment or associated auto expenses. Courts can add the value of a company-owned car to gross income, or they might impute income to a spouse who is deliberately under employed because she hopes to avoid paying alimony. Attempting to estimate deductions in such iffy scenarios can leave a wide and potentially unfair margin for error, so gross incomes are used instead. Net IncomeStates that base alimony calculations on net income typically begin with gross income, then apply a uniform, statutory list of allowable deductions. Your net income in these jurisdictions is not necessarily what your paycheck says you bring home each week. Your take-home pay might be less than you could potentially have available based on voluntary deductions such as pension loan payments or contributions to a charity. Therefore, net income is usually determined as your gross income minus taxes and, if applicable, mandatory union dues. Some states also deduct child support payments. Utah Alimony Lawyer Free ConsultationWhen you need legal help with alimony in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Spousal Support. Child Custody. Asset Division. Debt Division.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Real Estate Lawyer West Jordan Utah via Michael Anderson https://www.ascentlawfirm.com/what-is-the-average-amount-of-alimony/ The notion of social harm is based upon the common law belief that when a person’s conduct falls below prescribed legal and moral standards, not only does the victim suffer, but society as a whole has also been harmed. The offender has breached the general agreement that citizens will conform their conduct to the moral dictates of the criminal law. Society, then, through the office of the government prosecutor, must express its legal and moral condemnation of the conduct and redress this harm by bringing the offender to justice. In most statutes, the social harm is quite clear. For example, with theft crimes, society suffers a harm when an offender interferes with an owner’s private property interests without the owner’s consent. Similarly, in sexual assault cases, the physical and emotional harm visited upon victims is a trauma that reverberates throughout society. If you have been charged with a crime, speak to an experienced Tooele Utah criminal defense lawyer. Causation and Expert TestimonyThe element of causation is crucial in every criminal case because it is the critical link that ties the defendant directly to the unlawful conduct. The causal connection is even more important in homicide cases, when the stakes are usually quite high for the defendant. Once the prosecutor proves that a death occurred and that it occurred by wrongful conduct, then he or she must prove that the death and wrongful conduct are directly attributable to the defendant. Again, because of the gravity of the consequences for the defendant, this causal link must be clear and direct. With the advances in medical science, the year-and-a-day rule has been abolished in most jurisdictions. This means that a defendant may be prosecuted for a victim’s death without regard to the length of time between the defendant’s conduct and the victim’s demise. Of course, there must still be proof that the defendant’s conduct caused the victim’s death. As a practical matter, the more time that elapses between the wrongful conduct and the death, the greater the likelihood that the defendant can mount a strong defense to the causation element of the crime, even without the assistance of the year-and-a-day rule. Under Utah law, there is no statute of limitation for most major crimes like murder, homicide, etc. MurderAt common law, murder was considered one of the most heinous offenses and, as such, was punishable by death. Murder is broadly defined as an “unlawful killing with malice aforethought.” Historically, this meant that the unlawful killing was performed with an evil, wicked motive or intent or performed as a deliberate, cruel act without provocation. However, as the law gradually evolved, the term malice aforethought shifted away from its common law meaning and came to embrace four mental states that would transform an unlawful killing into murder. The four mental states are intent to kill, intent to do serious bodily harm, extreme reckless disregard and felony murder. Thus, an unlawful killing is performed with “malice” aforethought” (often referred to as simply “malice” in most statutes) if the defendant causes a death while acting with one of these four mental states. Generally those who commit murder with intent to kill are considered very dangerous because they act with a conscious purpose to cause the death of another. Typically (although not always), a person who acts with the intent to kill also engages in premeditation and deliberation. What this means is that the person thinks about the idea of killing (premeditation) and also considers the consequences of committing the murder (deliberation). If, after this period of premeditation and deliberation, the person goes forward with the intent to kill, then first-degree murder has been committed according to the criminal statutes in most jurisdictions. Additionally, in those jurisdictions that have the death penalty, this defendant would be highly likely to receive such a punishment. The premeditated, deliberate murderer is usually subjected to the harshest punishment available under the law in the jurisdiction. The rationale for this is that a person who thinks about and considers the potential consequences of committing a murder prior to actually committing it is, in theory, the most dangerous type of criminal and therefore deserving of the most severe punishment available. In cases of premeditated and deliberate murder, the government, in addition to proving the voluntary act and the mental state (intent to kill), must also prove that the defendant premeditated and deliberated. It is important to understand that premeditation and deliberation are not mental states for the crime of murder, but are instead aggravating factors surrounding the mental state of intent to kill. Premeditation and deliberation can take place over a short period of time (e.g., one or two minutes) or a longer period of time (e.g., one year). However, the closer in time these factors occur to the actual commission of the crime, the more difficult it becomes for the government to prove that the defendant actually had the time to think about committing the crime and to consider the consequences. Extreme Reckless DisregardA defendant can be charged with murder even though he did not intend to kill or do serious bodily harm to the victim. Instead, liability may be imposed if the defendant intentionally engages in conduct that creates an extremely high risk that death will occur. Murder committed while the defendant is acting with extreme reckless disregard for the value of human life is sometimes referred to as “universal malice” or “depraved heart” murder. These terms indicate that the defendant consciously engages in extremely risky, life-threatening conduct, although not intending to harm any particular person. To assess whether the defendant is engaging in conscious risk taking, it is important to determine what the defendant knows about the circumstances at the time of his conduct. Felony MurderAlthough a person may not intend to kill or do serious bodily harm or engage in conscious risk taking, he may nevertheless be charged with murder if he intentionally causes a death during the course of and in furtherance of a felony. The rationale for transferring the felonious intent is that people will be deterred from engaging in life-endangering felonies if there is a strong likelihood that they will face murder charges should a death result from their felonious conduct.The law of felony murder has undergone considerable change over the last two decades. Because felony murder imposes liability (often for first- degree murder) for a death that is caused unintentionally, there was a growing concern in many jurisdictions that, in some instances, the results of applying the felony murder doctrine were unduly harsh. ManslaughterThe crime of manslaughter, as distinguished from murder, involves causing the unlawful death of another without malice aforethought. This means that the defendant unlawfully caused a death but did not possess any of the four mental states required for malice aforethought. Voluntary ManslaughterHistorically, the crime of voluntary manslaughter was known as a “heat of passion” crime. The traditional example of a “heat of passion” killing involved a husband who arrived home early to discover his wife in a “compromising position” with another man and became so enraged that he killed one or both of them. The resulting crime(s) were considered manslaughter and not murder because the husband’s “passions” were so inflamed by the circumstances that he acted in a morally blameworthy manner before he had sufficient time to cool off and consider the consequences of his actions. Thus, although criminally responsible for the deaths, the husband who acted in the heat of passion was considered less blameworthy than someone whose actions derived from malice or “cold blood.” This is because society recognizes that human beings have certain frailties that make it particularly difficult to act in a morally responsible manner under certain circumstances. In recognition of these frailties, the criminal law has established a compromise: A defendant whose actions result from “heat of passion” is criminally responsible for any resulting death. However, criminal liability will be based upon theories of voluntary manslaughter rather than murder, which means that the defendant, if convicted, will incur a less severe penalty. When examining the facts surrounding cases of voluntary manslaughter, many of them closely resemble cases of intentional murder, that is, it looks as if the defendant intended to kill and acted upon that intent. For example, if we consider again the husband who discovers his wife in a “compromising position” and immediately decides to kill her, these circumstances closely resemble intentional murder since the husband clearly intends to kill his wife. What is it then that takes this conduct out of the realm of intentional murder and places it into the category of voluntary manslaughter? To be classified as voluntary manslaughter, the defendant must be “adequately provoked” and not have an opportunity to calm down prior to causing the death. Furthermore, the defendant’s conduct must comport with that of a reasonable person under the circumstances. Thus, to determine if conduct meets the criteria for voluntary manslaughter, four questions must be considered: • Was the defendant provoked? • Would a reasonable person have been provoked under the circumstances? • Did the defendant actually “cool off” or calm down prior to the killing? • Would a reasonable person have cooled off under the circumstances? If the defendant was not actually provoked or had, in fact, cooled off prior to causing the death, then there is no need to consider what a reasonable person would have done under the circumstances because the defendant himself does not meet the criteria for “heat of passion.” However, if it is determined that the defendant was provoked and did not cool off prior to causing the death, then the conduct of the reasonable person under the circumstances must be considered. When applying the reasonable person standard, the judge or jury is asked to consider what would have constituted reasonable conduct given all of the surrounding circumstances. More than simply hiring a known criminal law defense attorney, a defendant should try to hire an attorney whose experience is in the courthouse where the defendant’s case is pending. Though the same laws may be in effect throughout a state, procedures vary from one courthouse to another. Defendants should prefer attorneys experienced in local procedures and personnel. Hire the best – hire an experienced Tooele Utah criminal defense lawyer. Tooele Utah Criminal Defense Attorney Free ConsultationWhen you need legal help to defend against criminal charges against you in Tooele Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with murder charges. Involuntary Manslaughter. Sex Crimes. Drug Crimes. Theft Crimes. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
When You Have Full Custody What Does Dad Pay For? via Michael Anderson https://www.ascentlawfirm.com/criminal-defense-lawyer-tooele-utah/ A will is a legal form of documentation containing information about how the estate of an individual should be divided after he or she passes on. Your wishes and preferences concerning the management of your property are included in the will. According to the law in Utah, your will should have your official signature and be done in the presence of witnesses. For a will to be legal, three key elements should be addressed and clearly stipulated before its executed. These statute requirements ensure that the document is genuine and a true expression of the testator’s intentions. You will be able to find the requirements for a legal will under the Utah code section 75-2-501. The prerequisites are for the document itself as well as the person writing the testament. The person creating the will is legally referred to as a “testator”. A testator should satisfy certain legal conditions for the will to be acknowledged under the descent and distribution laws of Utah. What are the requirements for a competent testator?The testator should be of legal age. The legal age requirement for creating a will is 18 years and above. The state recognizes a competent testator who is within the legal age limit as an adult. This is someone who is recognized as being capable of making decisions regarding the different aspects of his or her life. An adult is in charge of his/her property and can, therefore, distribute it as he/she so pleases. An individual who is below the age requirement does not qualify to create a will. If such a minor dies intestate, the property will then be distributed as stipulated by the laws of descent and distribution. The laws of the state of Utah do not recognize any will created by a minor and so one should wait to reach the minimum age of 18 years before creating a will. The testator should be of sound mindThe person making a will should have testamentary capacity. This means that the testator should be mentally fit and of sound mind. The individual should be able to grasp the nature of his/her available property, all the physical objects in his/her estate and the conditions of his testamentary act. The testator should be able to link all the aspects of the will by having a full understanding that his/her property will be distributed in a given way depending on his/her conditions. An incompetent testator who has some form of mental incompetence can be recognized by a and confirmed by a certified medical practitioner. Such a testator might be delusional in distributing his/her estate due to a mental disorder. Factors such as advanced age, illiteracy and physical disability do not deny an individual testamentary capacity though are usually considered when combined with other elements in that particular case. For instance, in Utah, a testator suffering from a disease such as Alzheimer’s can be declared to be of sound mind if at the time of will signing they are lucid. Requirements of the will that makes it legalThe provisions of a will are clearly stated in the Utah code section 75-2-502. Will should be in writingYour will should be in print form to enable it to be legally recognized by the state judicial system of Utah. A tangible form of your wishes on how your estate should be distributed allows the court to acknowledge your document. A will made in the form of a video or tape recorder is not legally valid and can affect the handling of an estate when one dies. The will can either be typewritten using modern applications such as PDF or MS word. It can also be handwritten (holographic) as long as the testator does the writing. In the event where the testator is unable to write the document on their own due to an illness or illiteracy, then someone else can do it for them. Official signature of the testatorYou should first keenly read through the document to make sure that your wishes are clearly stated in the will. You should place your initials on each page of the document at the bottom corner. This is to prevent any altering of the pages after the Testament has been signed. You will then have to sign your full names on the last page to make the will legal. WitnessesThe law requires that you legalize your will by signing it in the presence of at least two witnesses. The witnesses should also place their signatures on the document as proof of their presence. You should carefully choose your witnesses based on the stipulations of the law. The following should be adhered to when selecting your witnesses. ● Witnesses should not be beneficiaries of the will ● Should not be a spouse to any of the beneficiaries during the time of will signing ● Should not be below 18 years ● Should be of sound mind You should first gather your witnesses in one place for the signing process. You can begin by making a formal statement by telling about the signing of the will. The witnesses do not have to go through the contents of the will. All that is required from them is to bear witness you signing the document. The witnesses should also sign their initials on every page. Who are the beneficiaries of a will?According to the law, a testator has the right to allocate property and the entire estate to whoever he so chooses. A beneficiary can be an organization, either a private establishment or a government corporation. An individual can also be a beneficiary with some testators leaving their properties to pets. The only limitation you have when choosing a beneficiary is that you cannot include any of your witnesses in the will. Several beneficiariesIf your will has multiple beneficiaries then you will have to come up with ways in which the property will be distributed. Depending on your preference you might decide to divide your estate in the following ways; – Equitable distribution of the assets. This happens when you want to allocate your property to all the beneficiaries evenly. For instance, one might decide to distribute the estate to all the children equally. – Uneven distribution of property. Some beneficiaries will receive more than others, depending on how the testator deems appropriate. A good example is when 75% of the estate is left to the spouse and the rest to the children. – Selling the property and distributing the profits. One might require that the property in the testator’s name be sold and the proceeds to be allocated as stated in the will. What is the role of an attorney in making a will?Though one can create their own will, it is usually vital to seek legal advice from an experienced professional. When dealing with a large estate, it is essential to know the law provisions in regards to estate taxes and other legal fees. The following are some of the instances that will require a probate attorney. Disinheriting a beneficiaryDisinheritance occurs when the testator decides to leave out an heir in the will. Cutting off an individual from your will means that they will not be entitled to a portion of your property. A testator might decide to disinherit a beneficiary from a will due to the following reasons; – Failure to update the will – When the testator assumes that the beneficiary is not financially responsible – The heir neglected them in the past by avoiding communication. – The heir is financially well of; hence, does not require inheritance. – The heir was supportive and neglected care. Fear that your will might be contestedContesting a will involves someone stepping forward and challenging the validity of the document. Your lawyer will look into your will to ensure that there will be no grounds for contesting the testament. The following are some of the grounds under which a will might be challenged. ● A will can be contested if disinheritance is seen to have been accidental. ● Failure to include a spouse who has the right to the testator’s property ● Failure to execute the will according to Utah laws ● The testator was mentally incapacitated and was therefore delusional ● Influence by a beneficiary or a third party when dividing the property ● If the will is believed to have been executed as a result of fraud If you are a business ownerAn attorney will provide relevant guidelines that will enable you to set the specifications for the ownership share. Adhering to the law will ensure that your beneficiaries receive what is due to them. Arrangements for a disadvantaged beneficiaryIf part of your will stipulates that a beneficiary should be looked after, then your lawyer will be able to see it all through. If you require proper care to be given to a disadvantaged child or one who is disabled, then insight from a lawyer is crucial. Probate attorneys work to ensure that your Testament is followed as per your wishes. You will also prevent family conflict when you include your lawyer in the execution of your will. Why should I have a will?The importance of having a will looks into the welfare of your family as well as your business when you no longer live. Having a proper plan in the distribution of your property by including beneficiaries as well as your executor allows the smooth running of the property. The following are some of the reasons why having a will is essential. Prevention of intestate successionIntestate succession laws are responsible for deciding who among the family members inherits what amount. Such laws are usually executed in the owner of the estate did not have a will. Priority is generally given to the spouse, the offsprings or parents of the deceased. More than just distribution of propertyYou can use your will for more than just distributing assets. Your will can contain the names of the guardians for your children as well as your property. You can also create a trust for your offsprings to that will help them as they grow. You can forgive debts in your will by stipulating the nature of the debt, including the amount and the name of the individual or organization involved. Less conflict in the familyFamily members might differ on what one might have wanted in regards to the distribution of property. When a will is put in place, then the family does not have conflict about who gets what and why. Speculations are reduced as relatives accept the wishes of their loved one, knowing that the contents of the will were the wishes of the deceased. Fewer taxesA will helps lower the amount of estate taxes to be paid by your family when you die. When you distribute your estate to family members, they will be required to pay less as compared to intestate succession. DonationsDonations, as stated in a will, allows one’s legacy to continue as per the preferences and values of the testator. You can gift a charity organization of your choice a particular amount form your estate that will go a long way in leaving a mark in this world. Adjustments are possibleYou can always make adjustments to your will as long as you are alive and of sound mind. As you go through life changes such as marriage, children and divorce, you can change the will as you see fit. Prevent a long probate processThe presence of a will quickens the probate process by informing the court how the property should be divided. Lack of a will lengthens the process by through court delays as it decides who in the family should receive what percentage of the estate. Tomorrow is unknown, and death is inevitable because that is what makes life precious. A will allows you to plan for the eventualities of life when you are gone. Seek the professional advice of a probate attorney who will take you through all the requirements of making a will. Legal Will Attorney In Utah Free ConsultationWhen you need legal help with a last will and testament in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Health Care Powers of Attorney. Durable General Power of Attorney. Revocable Living Trust. Wills. Estate Planning. Estate Administration. Trust Administration. Probate Cases. Disputed Estates. Will Contests. Estate Lawsuits. And more. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Employment Anti-Discrimination Laws via Michael Anderson https://www.ascentlawfirm.com/what-constitutes-a-legal-will-in-utah/ Seek the assistance of an experienced West Jordan Utah real estate lawyer when you are negotiating with a lender for funds to develop your property in Utah. Generally, lenders recoup their costs and make a profit from charging interest on their loans and charging fees for the privilege of borrowing their money. Interest, as discussed earlier, is earned throughout the life of the loan. Financing fees are earned prior to or at the time when the loan is provided. Some fees are direct pass through of costs incurred by the lender; other fees are charged as a flat amount or percentage of the loan to cover the lender’s staff time for underwriting or considering the loan request and profit. The following are common fees and charges: • Application fee—A lender usually charges a flat fee to consider a loan application. • Commitment fee—A commitment fee usually is assessed as a percentage of the total amount of the loan that the lender agrees to provide. The fee must be paid by the buyer in order to receive the lender’s written commitment to make the loan and only after the bank has committed verbally to make the loan to the borrower. • Loan discount or origination fee—A lender may charge the borrower a loan discount fee at the time when the loan is provided. This fee, usually assessed as a percentage of the loan provided, allows the lender effectively to increase the interest rate on the loan indirectly. For example, if the lender provides the borrower with a $1,000,000 loan at 10 percent interest per year, amortized over 30 years, the regular monthly payments to fully amortize the loan would be $8,820. However, if the lender also charges a 1 percent discount fee for the loan, the borrower must pay ,000 at the time it borrows the money. • Appraisal fee—The lender will order an appraisal of the property from a list of its approved appraisers. Lenders will seldom accept an appraisal from an appraiser selected by the borrower. The lender will require the borrower to pay for the appraisal, often in advance of both the appraisal’s completion or the lender’s commitment to the project. To the extent possible, in order to limit uncertainty, buyers should negotiate with lenders in advance to predetermine the appraisal cost and all related costs. • Credit reports—Most lenders will require the borrower to pay the costs incurred to secure a credit report on the borrower and/or its principal partners. • Property inspection fee—Many lenders, especially construction lenders, will hire an architect or construction manager to inspect the property prior to payment of a draw request. These costs will be passed on to the borrower. • Attorney’s fee—The lender will pass through to the borrower all of its legal costs incurred to process and close the loan. Before you sign any document given to you by the lender, have the document reviewed by an experienced West Jordan Utah real estate lawyer. Prepayment ProvisionsMany borrowers learn long after they have borrowed money from one or more lenders that those lenders will not let them pay off their loans any time they wish to do so. Some loans cannot be paid before their maturity date for any reason, others can be prepaid only at certain times, and others can be prepaid only upon payment of a prepayment penalty, which can be as much as 4 percent or 5 percent of the outstanding amount of the loan. Lenders often have good reasons for these prepayment restrictions; for example, they may be facing similar restrictions imposed on them by the secondary markets to which they will be selling the loan. The important point about prepayment provisions is that the buyer must be aware that they may exist in the loan agreement and must be sure that they do not conflict with any fundamental financial assumptions. Security Required by LendersA lender generally will not make a real estate loan unless it knows that it has some protections, other than the borrower’s promise to pay, in case the borrower fails to pay off the loan according to plan. These protections are considered “security” to the lender in case of a loan default. Lenders generally require borrowers to provide security in the form of a mortgage or deed of trust, an assignment of leases and rents, or security agreements for chattels and other tangible property. Mortgage or Deed of TrustA mortgage or a deed of trust gives the lender a legal “security” interest in the property. These two instruments are almost identical and serve identical purposes. They provide the lender with the legal power, after a loan default by the borrower, to sell the property in order to raise funds equivalent to the unpaid portion of the borrower’s loan. A mortgage is an instrument used in some states to make real estate security for a debt. It is a two-party instrument between the mortgagor (the borrower) and the mortgagee (the lender). A deed of trust serves the same purpose but is a three-party instrument among a trustor (the borrower), a trustee (designated by the lender to act on its behalf), and the beneficiary (the lender). A mortgage or deed of trust must be recorded in the land records of the jurisdictions where the property is located. Assignment of Leases and RentsAn assignment of leases and rents gives the lender a legal “security” interest in property leases and the rents generated by these leases. This instrument generally allows the lender, in case of a loan default by the borrower, to control who leases what space in the property and to receive the rents paid by the occupants. Security Agreements for Chattels and Other Tangible PropertyA security agreement for chattels and other tangible property gives the lender a legal “security” interest in everything else (apart from the real estate itself) that is owned by the borrower at the property. The mortgage or deed of trust provides the lender with legal protections as to the land and improvements (real property); the security agreement provides the lender with legal protections as to everything but the land (personal property). This agreement provides the lender with the legal power, after a loan default by the borrower, to sell the personal property—light fixtures, lawn mowers, and maintenance trucks, for example—in order to raise funds equivalent to the unpaid portion of the borrower’s loan. Lien Priority Position/Good TitleA lender generally will not want to make a loan to a borrower if another lender or entity previously has recorded a claim against the real and/or personal property that is being offered by the borrower to secure the loan. Parties who record claims first have the right to have their debt paid first, in the event of a foreclosure sale of the property. This priority is called a first lien position. The higher the lien position, the less risk there is to the lender that its debt will not be repaid upon foreclosure. DocumentationThe lender will provide you with the documents to be executed for the mortgage. Before you sign them, have them reviewed by your West Jordan Utah real estate lawyer. Sometimes there may be clauses in the documents that may have an adverse impact on you later. Once you sign the document, you cannot wriggle out of your obligations under the document. What Lenders Look for in a ProjectWhen you approach a lender for a loan for your real estate project, the lender generally will consider the following issues when evaluating or “underwriting” a loan request: Your track recordReasonableness of Income and Expense Projections -The lender will look very carefully at each line item and category in the sponsor’s income and expense projections, including reserves, to determine their reasonableness. Generally, the lender will want to know the assumptions on which the projections were based. If the projections were based on past operating history of the property, the lender will often request copies of the income and expense reports for the periods reviewed. The lender will be very concerned about income and expense projections because it will want to make sure that there will be enough net operating income (NOI)—the money left over after paying all expenses—to cover the debt service on its loan and any other debt anticipated by the borrower. Debt Coverage Ratio – Even after the lender is able to convince itself of the reasonableness of the income and expense projections, it will still not be satisfied. Lenders generally will want to see that the income and expense projections actually provide enough NOI to cover the debt service and to create a cushion for unanticipated expenses. Lenders evaluate the sufficiency of NOI by analyzing the debt coverage ratio for the project—the ratio between NOI and the debt service projected for the project. Loan-to-Value RatioA lender generally will not provide a borrower with a loan in an amount equal to or greater than the appraised value of the property that is serving to secure repayment of the loan. Although some public lenders may provide loans that equal 100 percent of the property’s value, most lenders lend only a portion of the appraised value of the property. The relationship between the amount of a mortgage loan and the value of the real estate that secures it is known as the loan to value (LTV) ratio. Ability to Sell the Loan in the Secondary MarketA lender’s concerns about the creditworthiness of a borrower can be minimized if the lender knows that it will be able to sell the loan into the secondary market as soon as the loan is closed. The lender must worry more about the borrower’s ability to repay the loan if the loan is going to be held in the lender’s portfolio throughout the loan term. Ability to Have Repayment of the Loan Guaranteed or InsuredA lender’s concerns about the creditworthiness of a loan also can be minimized if the lender knows that the repayment of the loan will be guaranteed by a personal or corporate guarantee or insured by a state or federal agency. many lenders are requiring developers to guarantee their loans with their own personal or corporate assets. These loans are known as recourse loans. If the borrower has assets sufficient to secure repayment of the loan upon default, then the lender will be less concerned about the economic viability of the real estate project being financed. The same is true if the borrower can insure repayment of the loan by securing a state or federal mortgage insurance commitment. These guarantees often supplement other guarantees or insurance. When you are looking for a loan to develop land, seek the assistance of an experienced West Jordan Utah real estate lawyer. Your lawyer will assist you negotiate with the lender and ensure that your rights as a borrower are protected. The lawyer can review the lenders documents before you sign them and advise you if any changes or modifications need to be made to those documents. The lenders documents will be prepared by the lender’s lawyer. For the lender’s lawyer, the lenders rights are important and he will draft the documents keeping in mind the lender’s rights. He will not be worried about your rights. More often than not, the lender’s documents are tilted in favor of the lender. Never sign any document that the lender has asked you to sign without showing them to your West Jordan Utah real estate lawyer. West Jordan Utah Real Estate Lawyer Free ConsultationWhen you need legal help with real estate in West Jordan Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with quiet title actions. Evictions. Title Opinion Letters. Boundary Disputes. HOAs. Easements. Real Estate Litigation. And More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Copyrighted Material At School via Michael Anderson https://www.ascentlawfirm.com/real-estate-lawyer-west-jordan-utah/ Divorce dictates lots of things, but giving the child all the desired things and necessities might get ignored. Some times even his immature thoughts can be so emotional that it could melt one’s heart but the court and politics of getting the child for themselves, parents get to ignore the fact that how it is effecting the child. Then again parents go for, fight for it, and then what ? Nourish the child as long as they have the custody so that child could relish the life he or she deserved. The custodial and non-custodial time can be determined by the parents deciding themselves but if they are having disputes or they just agree with each other, then court orders that which parent will be holder major share of time with his or her child and who will be becoming the non-custodial parent. This can be further discussed by the parents themselves, but the decision made by the court is full and final in case they are disagreeing during the discussions. There are two types of custodies; sole custody and joint custody. Sole Custody gives only one parent the power of making major decisions related to the child. Whilst on the other hand, joint custody is about making major decisions together but to get this thing in the work, both parents are asked about how they will manage this. They demand a plan for that. This is also termed as “ Joint Legal custody”. But that does not necessarily means both parents will have equal share having the kid with themselves. However, there are more two types of sole custody. Sole legal custody and Sole physical custodyPrevious one is all about the major decisions regarding to the child as we have mentioned already, the latter one is about keeping the child with themselves. As per court decision usually one parent owns the sole legal custody whilst sole physical custody is shared by both of them. And sometimes it also happens when one parents has the sole physical custody whilst both of these parents relish the sol legal custody together. Rarely court decides to give all the sole legal custody or sole physical custody to one parent unless the other parent is to totally unfit for the option. Like parent having history of violence, or he or she is alcohol or drug addict or they neglect the child are considered unfit for the custody. These situation may also lead to the “termination of parental rights”. This means parent is no more legal parent of the child anymore. Parent—with terminated parent rights—have no relationship with his or her own child let alone the rearing of the child. Parent do not get any non-custodial time for meeting with his or her child apart from that even his or her money is not asked for child support. Their name is immediately removed from the birth certificate and they are no more asked for any views in case if the child is going to be adopted. This sentence is also termed as “civil death penalty”. Court does not go for this unless there is solid reason for it. Apart from being drug or alcoholic addiction and violence, Token care, sexual assault on child, or there are serious possibilities of child getting physically mentally and emotional tortured by the parents , and have even everlasting fights between the parent may get the court to make this kind of decision. As already mentioned lots of the states often look after the best interest of child. Now these are the words of the father after losing the his custody for the child. “As a single father, I want to get full custody of my kids, but it just seems like there is no hope left for me.” Is it hard for father to lose the custody of his child as losing custody of child makes the right of the father more contingent that ever they were. The experience of losing the child for the father or even mother is heart-wrenching and one would not ever tell how they are feeling. The feelings eat you from inside out. It may washout this whole anger, sadness, disgust, discord, disarray, and tears out of parents skin. Losing child can be painful—which later plays its role as mental torturer. As it is pretty much difficult to comprehend how court thinks I—myself as a parent—is not capable of rearing my won child. These thoughts comes to them incessantly and kills them every day. Their physical as well as mental health degenerates. Some times they even isolate themselves. After losing the custody the other spouse has literally no right to take decisions regarding to nourishment of the child or where he or she should go to school or what kind of religious he or she can practice. In case of residential custody, the child gets to live with the parent wining the custody of the child. In these kind of criterion, the losing parent has given the time of visiting hours only. More than that, he or she can not meet with the his or her child. Apart from that, losing parent also pays for the child support. After losing the contract, there is always the two kind of contact methods that a any parent allow, that is either providing limited contact with the child or none at all; withholding contact. Usually mothers do that just after breaking up with their husbands. There can be reasonable and unreasonable explanation for it. In the reasonable scenario it is already proven that father is not compatible with the child or he is just dangerous for his or her rearing. But here we will be totally concentrating on the unreasonable causes in which mother seeks to deteriorates the child-father relation. Since they are totally personally based decision so they are simply acceptable. As mentioned before this course is usually taken by the mothers when she breaks up or divorces his boyfriend or husband respectively. After these departure of two souls away from single bond—relation—they start living in different places. There might be many reasons for the mother to go for unreasonable approach. Some common reasons are given below for this kind of mother’s behavior. • Mother was really angry about the infidelity of his partner or simply about the break up. • Mother is still immature. • Mother is being controlled by her mother or sometimes by her parents. As per their se, his Ex is not capable of rearing the child. • There is time, mother is simply too unkind and stubborn to share her child. • No child focused reasons. Law bodies are trying their best to make laws to protect fathers from these kind of scenarios, if they are triggered by any mother. A father deserves to curb his relation with his child. And child deserves the shadow of nourishment from his father too. Addendum to that if mother is doing that father can show the court about this behavior of her. This elongates the fact that mother is totally focused on child’s best interest rather she is just worshipping her own ego. Since the law requires all the family courts to take such decisions which are the best interest for the child future nourishment. Here father can ask for custodial retention form the mother. He just has to prove that mother is not totally focused and is not the best shot for the child’s best future. Alienating the child from the father is pretty much disruptive for the father-child relation. Alienating father is like making him the stoolpigeon. This parental alienation is not gender biased—it just simply has one goal to ruin the parent-child relation of the relation with parent by the other parent. This may lead to even that point that even may child do not long for the other parent. What has father to do if this kind of situation arises? First of sitting on the alley or the sofa keep hand on the forehead—facepalming will not help at all. This will not bring the child back. Even the minimal struggle would not do any good. This is serious issue enough that father can lose the child. He may not see his child anymore again since the mother is doing her best to alienate the father from the child and degenerate this whole relation. Parents may go for therapy so that they could keep away these all negative thoughts against each other for the sake of themselves and their child. As the things some times does not go well. There must immediate intervention by the court. Of coarse father should immediately contact and enforce the court about this raised issue. This may lead to modification proceedings or even a family law contempt action if mother has violated any court order. Sometimes even court appoints the child evaluator or minor counselor for the child, and they take out the fact the child is being alienated from father by the mother. But Father can not be totally dependent on these kind of cautions. He as take his steps inside the court for his right about his daughter or son. Family courts settle on child authority choices on both a brief premise and toward the finish of the case by a judgment. The judgment isn’t generally last on the grounds that the best possible conditions legitimize an adjustment. For transitory requests, fathers record a solicitation for request and get a consultation date. A solicitation for request triggers a court date set by the court agent and an intercession date that goes before the court date. We won’t broadly expound in this article about the intervention procedure and the real solicitation for hearing. You should call Ascent Law for your free consultation so we can guide you on Utah child custody laws to become familiar with them. Because the Family Court did not grant full care in a judgment does not stops the father from looking for an adjustment. The court has the ability to grant full guardianship to any parent after the judgment. For a total alteration of care, that weight of confirmation is regularly a noteworthy difference in conditions. That implies the father must show there has been a huge difference in conditions. If he proves that there is something wrong in previous custody or the mother is not that capable enough or you are better than her choice now for the child’s best interest. That change legitimizes the transfiguration since the last court request. Some times mother shower the frustration on the other parent when he is spending time on the child. In these kind of scenario mother consistently tries to interfere in father’s time period with the child or she unreasonably curtails the time period so the father has minimum possible time with his child. These kind of acts can take away the custody of the child from the mother. As this whole fiasco of frustrating time of the father shows the sheer insult of father spending his quality time with his own child. Addendum to that this act further shows the how much mother is trying to get away from co-parenting the child together. This frustration of time could get to the even worse conditions such as alienating the child from the father—which is totally against the court order unless court orders that step to take. John Doe is the guy who ended up losing his daughter from first wife and son from the second wife as his wives succeeded in getting the custody. Her first wife moved away from him 1,300 miles to be exact. Same thing was being done by the second wife, but he fought her in the court and succeeded to dwell with his son with in one same city. He also worked as a cleaner to meet his child in un-scheduled time. He did everything to have those moments with his child. He lost his daughter. He knew the pain he would face if the son goes away too. This is what happen to dads when they lose their custody of their child. Child Custody Lawyer in Utah Free ConsultationWhen you need legal help with child custody and family law in Utah, please call Ascent Law LLC (801) 676-5506 for your free consultation. We can help you with child custody, divorce, modification of child custody and more. We will help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
via Michael Anderson https://www.ascentlawfirm.com/when-you-have-full-custody-what-does-dad-pay-for/ Not all companies and corporations are successful. Many of them, including those with the smartest business plans and the best managers, struggle to make money, and some of them actually lose money. This happens to public and private companies. If your business is not doing well and is over burdened with debt, bankruptcy may be an option for you. Speak to an experienced Magna Utah bankruptcy lawyer. What causes the problems leading to a company losing money can be wide and varied. A company could have missed a paradigm shift in its industry that caused competitors to take business away from it. A corporation could have decided to enter a new line of business that resulted in disaster, leading to huge losses. Or a business could have acquired another company, taking on debt and other financial obligations that it is no longer able to meet. These are just a few examples of why a business goes bad. When a company in dire financial straits gets into a position where it is no longer able to pay its bills and loans in a timely manner, it often files papers with the court allowing it to continue operations but reorganize the money it owes, making those payments more manageable. This is called entering bankruptcy court. Bankruptcy court is a federal court system, and it is not just for businesses. Individual people can also file with the bankruptcy court. But what a bankruptcy court filing allows a company to do is to allow it to have some or all of its debts eliminated or reduced dramatically. Without such a process, the people and companies owed money may not have received anything if the company simply went out of business. In addition, the bankruptcy court process attempts to find a fair method for compensating creditors. Some people and businesses owed money by a company in bankruptcy court receive compensation before others. And even for smaller companies seeking bankruptcy court protection, the story can be important to a local town or city. When companies go into bankruptcy court, they typically try to cut expenses by closing locations and firing workers. Bankruptcy courts are located in most major cities in Utah. Typically, companies and individuals file for bankruptcy-court protection at the bankruptcy courthouse located closest to its headquarters. But that does not always happen. Sometimes, companies file for bankruptcy-court protection in the state where they are incorporated. That may not always be the state where their headquarters is located. If your business wants to file for bankruptcy, speak to an experienced Magna Utah bankruptcy lawyer. There is a clerk who handles all of the incoming filings as well as the documents filed in existing cases. It is important for a business reporter to know that these bankruptcy court filings are considered public record and should be accessible. Under Utah bankruptcy law, the Bankruptcy Court can prevent public access to a bankruptcy case if the case involves confidential information or trade secrets in the case of a business. Likewise, in case of an individual bankruptcy case, the court can deny public access if the information disclosed in the case is scandalous or defamatory. This initial filing is an important document because it will list the company’s total assets and debts, and later every single person or company that the company owes money. This list of creditors can be valuable because it often leads to sources willing to talk about how the company in bankruptcy court has not been paying its bills or is reneging on some sort of business arrangement. All bankruptcy cases are overseen by a judge. The Judge is a judicial officer and is appointed by the judiciary. Filing for bankruptcy isn’t easy. It’s a complex process that needs certain forms to be filled and filed. Filing the wrong form or failure to file a form can have serious consequences. Don’t take chances. Seek the assistance of a Magna Utah bankruptcy lawyer if your business is seeking bankruptcy protection. The initial filing helps businesses in an important way. A company’s supplier must continue to provide products or other materials to the business in bankruptcy court. Companies in bankruptcy court go through a lot of court hearings as part of the process. There are hearings to determine whether a company should be closing locations or factories. There are hearings to decide how much compensation should be paid to executives, and how much in fees should be paid to the bankruptcy lawyers representing the company. Assets, which can be defined as a resource or item owned by a business that can be expected to benefit its operations, are important to assess for a company. Many times a company in bankruptcy court will look to sell some of its assets to help raise cash and turn its operations around. A company filing for bankruptcy-court protection often does not mean that the company is going out of business—a common misperception made by many. Chapter 11 vs. Chapter 7 BankruptcyIndeed, the U.S. bankruptcy code has many different parts. One section allows businesses reorganize its debt and come out of bankruptcy with lesser debt. Another allows companies to simply pay off its debt to the extent it can as it can and close shop under another part of the law. In Utah, businesses file for bankruptcy under Chapter 7 or Chapter 11. Chapter 7 court filings, however, are more drastic. When a company has filed under this part of the bankruptcy laws, it means that all of the company’s assets will be sold to pay its debts and that the company is going out of business. This part of the law can also be used by individuals who want to eliminate debt. A third type of bankruptcy filing that occurs that can be relevant to an individual is a Chapter 13, where the person filing repays their debts during a three- to five-year time period. Chapter 11 is the most common filing for many medium- and large-sized businesses, although it is not the most common filing for all businesses. The other types of creditors are unsecured creditors. These are creditors with no collateral against their claim. Investors who purchased stock in a public company via a stockbroker fall into this category. Secured creditors are paid before unsecured creditors in bankruptcy cases. Companies often file for Chapter 11 bankruptcy protection hoping to emerge from the proceedings as a better company that has learned from its mistakes. But that is not always the case. A number of companies that look for Chapter 11 to reorganize their debt end up converting their case to Chapter 7 when it becomes apparent that they cannot reach an agreement with creditors, or their business deteriorates so much that it becomes obvious that the best course of action for the creditors is to go out of business. Bankruptcy Reorganization PlanWhen a business is filing for bankruptcy protection, it must have a plan as to how it will reorganize its debts. Companies that do enter bankruptcy court with the idea that they will reorganize their debt and leave court protection rely on building a relationship with their creditors to work toward a common goal—coming up with a reorganization plan that allows the business to lower its debt while repaying some of the money owed. The reorganization plan is at the heart of a corporate bankruptcy case. The reorganization plan must ensure that once the company is out of bankruptcy it does not fall back into the habits that caused it to file for bankruptcy in the first place. An experienced Magna Utah bankruptcy lawyer can assist your business draft a reorganization plan. One of the important initial steps taken by a company after it enters bankruptcy court is to find financing that will allow the business to continue operating while it reorganizes its debt. This decision to provide financing to a company is approved by the court, and is often discussed at a hearing. The financing is just one of the first steps along a path toward the reorganization plan. The plan is developed with a committee of creditors. Some of the creditors may want to be repaid as much money as possible, and may try to force the company to sell some assets to use the money to pay debt. Other creditors may look to exchange the money they are owed for an ownership stake in the company once it exits bankruptcy court. A company will file a reorganization plan with the court. It is important for a reporter to determine the deadline for the plan, and to make sure he or she gets a copy of the plan as soon as it is filed. The plan discloses for the first time how much money the company is proposing to repay its creditors. A reorganization plan often also discloses whether a company will close locations, fire workers, cut salaries for executives, and other steps to reduce expenses. The plan is then reviewed by the creditors, and some of them may balk at the terms and ask the company to present a different plan. It’s important to get the reorganization plan prepared in consultation with an experienced Magna Utah bankruptcy lawyer. Bankruptcy CreditorsIf you are a creditor of a business that has filed for bankruptcy in Magna Utah, seek the assistance of an experienced Magna Utah bankruptcy lawyer. The bankruptcy lawyer can represent you in the bankruptcy court and protect your interest. The lawyer will review the reorganization plan and ensure that your debt is included in the plan and you are paid. If you believe the reorganization plan is unfair to you, you can object to the reorganization plan. Your Magna Utah bankruptcy attorney will make sure that your objection is heard and the debtor is forced to submit a fair reorganization plan. Never assume that the debtor will submit a plan that will be fair to you. The bankruptcy court will not on its own consider that the reorganization plan is unfair to you. It is for the creditors to vote in favor or object to the plan. Speak to an experienced Magna Utah bankruptcy lawyer before you take a call on a reorganization plan. Magna Utah Bankruptcy Attorney Free ConsultationWhen you need legal help with a bankruptcy in Magna Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with chapter 7, chapter 9, chapter 12, chapter 11 and chapter 13 bankruptcies in Utah. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506 via Michael Anderson https://www.ascentlawfirm.com/bankruptcy-lawyer-magna-utah/ Many small-business owners own their businesses through a business entity, like a corporation or limited liability company (LLC). And many have chosen to have their business entity taxed as an S corporation. Most likely chose this tax treatment because it offered income-tax advantages to them during their lives, without any thought to how that choice might affect their estate plan. There’s nothing wrong with that, but it is important to understand what estate-planning effects that choice can have. This post explains just that. S Corporations: Requirements and AdvantagesContrary to a popular misconception, the term “S corporation” refers to a type of income taxation, not a type of business entity. For example, many LLCs are taxed as S corporations, even though LLCs are not technically corporations. To qualify for taxation as an S corporation, a business entity must meet certain requirements. Generally speaking, the business entity must have only one class of stock, no more than 100 owners, and those owners must be natural persons who are U.S. citizens or resident aliens. S corporations offer three advantages to small-business owners. First, unlike entities taxed as C corporations, the income of an S corporation is not taxed at the entity level. Instead, it’s passed through to the owners, regardless of whether the entity distributes money to the owners. That means the owners recognize, and pay tax on, the entity’s income in proportion to their ownership interests in the entity. Second, also unlike C corporations, the owners of an S corporation are not taxed on distributions from the entity. That’s because they were already taxed when the entity earned the income. Finally, S corporation income is not subject to self-employment taxes, unlike income earned by entities taxed as partnerships or disregarded for tax purposes. However, to prevent abuse of this last advantage, the IRS requires that owners who work for their own S corporation receive reasonable compensation for that work. The compensation will be in the form of wages, which are subject to FICA taxes. Still, taxing a business entity as an S corporation can be an attractive choice for small-business owners because of these advantages. But how does that choice affect estate planning? S Corporations and Estate PlanningAs mentioned earlier, to qualify as an S corporation, a business entity must generally have owners who are all natural persons (i.e., individuals). However, there are some exceptions to that rule. Living trusts are an important one. Because living trusts are ignored by the IRS for income-tax purposes, a person can hold his or her S corporation stock in a living trust. After the grantor’s death, however, the trust can only continue to own the stock for a period of two years, unless it qualifies as an electing small business trust (ESBT) or a qualified subchapter S trusts (QSST). An ESBT is a trust in which the beneficiaries are all individuals, estates, and certain kinds of organizations, and no interest in which was acquired by purchase. If those requirements are met, the trustee can elect to treat the trust as an ESBT. But the advantage of holding the S corporation stock in an ESBT is offset by increased taxes due on the S corporation income “passed through” to the trust. A QSST is a trust that has certain terms included in it. Specifically, the trust can only have one income beneficiary, and that person is the only person who can receive distributions of trust principal during his or her life. In addition, all the income of the trust must be distributed to the beneficiary at least annually. The beneficiary of a trust with those terms can elect to have the trust treated as a QSST. In that case, the S corporation income is taxed to the trust beneficiary, not the trust. Ways That Trusts Cause Loss of S Corporation StatusThe rules regarding what types of trusts can be eligible S corporation shareholders are complex. Private letter rulings frequently are issued regarding stock being transferred to a disqualified trust or a trust that is already a shareholder (and was previously eligible) somehow becoming ineligible and thus causing a termination of S corporation status. Some of the situations are logical and easily recognizable as a problem, but many involve situations that practitioners would not immediately identify as the root of any concerns. In general, estates and six types of trusts are eligible as S corporation shareholders, with the most common being grantor trusts (including a former grantor trust for two years post-death), electing small business trusts (ESBTs), qualified subchapter S trusts (QSSTs), and testamentary trusts (for two years after funding). Most practitioners realize that a properly completed and timely filed election must be made for a trust to become an eligible ESBT or QSST, but there are many other problems that a practitioner may not easily recognize. The following are ways that S corporations can lose their S election status, most of them involving trusts. • Trusts Owned by More Than One Individual: Grantor trusts (either revocable or irrevocable) are eligible but only if the trust has only one grantor (although spouses generally are treated as one shareholder). Thus, a trust that is taxable to multiple individuals under Sec. 671 would not be eligible to hold S corporation stock. • Foreign Trusts: A foreign trust is not eligible to hold S corporation stock. However, it sometimes is difficult to determine that a trust actually is a foreign trust. In fact, a trust that originally was a U.S. trust can become a foreign trust merely because of a change in trustee. This could include situations where multiple co-trustees exist and foreign trustees obtain the ability to control the substantial decisions of the trust, even if the U.S. co-trustee accomplishes the majority of the actual activity. • Nonresident Aliens: An S corporation cannot have a nonresident alien as a shareholder. Therefore, previously valid S corporations have become disqualified when an existing shareholder who formerly was a resident alien (an eligible shareholder) moved out of the United States (thus becoming a nonresident alien) or abandoned permanent resident status. Similarly, a corporation lost its S status when a shareholder renounced U.S. citizenship. • Nonresident Aliens and ESBT and QSST Elections: The nonresident alien issue also can negate an otherwise valid ESBT or QSST election. In this case, a potential current trust beneficiary was a nonresident. Since all applicable beneficiaries of a QSST or an ESBT must be individuals who otherwise would be eligible to hold S corporation stock directly, the beneficiary’s nonresident alien status caused him to become an ineligible shareholder, thus causing the trust to immediately become ineligible, even though no change of ownership of the stock occurred. The same issue could arise if an ESBT document provides that any after-born children or grandchildren are automatically added as beneficiaries, and a grandchild is born who is not a U.S. citizen. • Charitable Remainder Trusts: A charitable remainder trust (CRT) is not an eligible shareholder. Thus, in Letter Ruling 199908046, when an S corporation issued additional shares of stock to various individuals and entities, including a CRT, the S corporation status was terminated. Although Sec. 1361(c)(6)(B) provides that S corporation stock can be owned by a charitable organization (including a private foundation) that is described in Sec. 501(c)(3) and is tax-exempt per Sec. 501(a), a CRT instead is governed by Sec. 664. • IRAs: Even though IRAs often are structured as trusts for legal purposes, Letter Rulings 200250009 and 201408018 illustrate that an IRA is not eligible as a shareholder of S corporation stock. Although Sec. 1361(c)(6)(A) permits S corporation stock to be owned by a qualified pension plan (as defined in Sec. 401(a)), an IRA instead is tax-exempt under Sec. 408. Similarly, a Roth IRA is not an eligible shareholder, since Sec. 408A governs Roth IRAs. • Defective Trust Provisions: Sometimes, certain provisions included in a trust document may seem acceptable but can inadvertently make a trust ineligible. For example, in Letter Ruling 201451001, a grantor created an irrevocable trust solely for the benefit of one beneficiary. However, the trust was not eligible to make a QSST election because it provided that if the trust property were included in the grantor’s taxable estate upon death, the trust assets could be used to pay a portion of the grantor’s estate tax. This seemingly unrelated and unimportant provision indirectly made the grantor a potential beneficiary of the QSST, meaning that the beneficiary was not the sole beneficiary of the trust, making it ineligible to make a QSST election. Another example is a will that provided that shares were to be transferred to a trust that would have been eligible as a QSST, except that the income beneficiary was given a power to direct the trust to pay his income to someone other than himself. Therefore, the trust was not eligible to make a QSST election. Taxpayers have made this mistake several times. • Defective Elections: Sometimes, a QSST or an ESBT election is timely filed, but the procedures for proper filing are not followed. In Letter Ruling 201144018, the trustee of a trust, rather than the beneficiary, signed a QSST election, and thus the election was not valid. Similarly, an ESBT election would be invalid (even if filed timely) if it were signed by the beneficiary rather than the trustee. Likewise, for a married couple living in a community property state, any election must be signed by both spouses (since both spouses automatically have ownership interests in stock held as community property), rather than by only the spouse who is nominally the shareholder. Finally, in Letter Ruling 201516009, the trustee of a grantor trust, rather than the grantor himself, signed the Form 2553, Election by a Small Business Corporation, making the S corporation election invalid. • Decanting: Letter Ruling 201442047 involved an apparent “decanting.” An existing ESBT contained provisions that the grantor apparently no longer desired, so a new trust was created with the same trustee and beneficiary but with different administrative provisions. The trustee transferred the S corporation shares from the old trust to the new trust, but the trustee did not timely file a new ESBT election. Therefore, the new trust was an ineligible shareholder. • Failure to Make Timely Elections: Failing to make timely elections is pervasive. This includes not only the S corporation election itself (on Form 2553) but also an election to make a trust an eligible shareholder as either an ESBT or a QSST within two months and 15 days after the stock is transferred into the trust. But in several unexpected situations a necessary election may be missed. For example, if a trust is a grantor trust to one individual, it is eligible as an S corporation shareholder, even though it is irrevocable (rather than revocable). However, upon termination of the grantor trust status, a separate election is necessary, even though there might not be any change in legal ownership of the stock. The deadline for making the election will depend on the situation: If the trust is irrevocable and the grantor dies, the trust is eligible to hold S corporation stock for two years (Sec. 1361(c)(2)(A)(ii)). This would apply to both intentionally defective irrevocable trusts (IDITs) as well as grantor retained annuity trusts (GRATs). Interestingly, the same rule applies to a QSST when the beneficiary of the QSST dies (see Letter Rulings 201420005 and 201516016). This is because the QSST election causes the trust to become a grantor trust to the beneficiary, even though the beneficiary did not create or fund the trust. Therefore, the rules applicable when the grantor dies apply upon the death of the QSST beneficiary. If the trust is revocable and the grantor dies, the trust probably is eligible to make a Sec. 645 election to be treated as an estate, and thus the trust is eligible to hold S corporation stock not just for two years but rather until the period of estate administration is complete. Estate Planning with S-CorporationsWith the federal state tax exemptions being so clients with family businesses held in an S-corporation are less focused on reducing estate taxes and are more focused on avoiding probate and reducing future capital gains tax through obtaining a basis step-up. To accomplish this goal, many S-corporation shareholders are placing their S-corporation shares into a grantor trust. This is an effective strategy since, at the time of the grantor’s passing, it allows the grantor’s estate to avoid probate and, if drafted correctly, may also allow the grantor to retain enough control that the shares will be included in the grantor’s estate resulting in a basis step-up. However, as with every plan, attention must be given to the potential pitfalls. S-corporations are subject to very strict rules, one of which places limitations on who or what entity can be a shareholder of an S-corporation. Therefore, it is crucial that your plan accounts for who may own the S-corporation shares in the future. For instance, if S-corporation shares are put into a revocable grantor trust, once the grantor dies, the revocable grantor trust will change to an irrevocable trust. Under the rules applicable to S-corporations, an irrevocable trust may only hold S-corporations shares for a grace period of 2 years. After this 2-year period, the S-corporation status of the corporation will be revoked. The IRS has made exceptions to allow certain types of trusts to own S-corporation shares without endangering the S-corporation status. One of the most common options is a Qualified Subchapter S Trust (QSST). With a properly drafted trust document, at the time of the grantor’s passing, the Trustee may elect for the trust to become a QSST. However, QSST is also subject to certain requirements of its own, most notably: all of the income of the trust must be distributed, or be required to be distributed, to a single current income beneficiary who is a U.S. citizen or resident. As a result, each beneficiary would be taxed on the income that passes through the S-corporation. S-corporations and QSSTs can be an extremely useful estate and business succession planning tool. If you are an owner of a business, whether held in an S-corporation or not, we recommend that you consult with an experienced tax attorney to help you decide what choices are right for your specific situation. Estate Planning Lawyer Free ConsultationWhen you need legal help using an S-Corporation for estate planning purposes, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506 via Michael Anderson https://www.ascentlawfirm.com/s-corporation-estate-planning/ Marriage is a contract which imposes on both parties the obligation to support each other financially. In this it differs from cohabitation. But the extent of the obligation is tested only when the marriage breaks down, a divorce is obtained and the parties apply to the court for financial relief. If you are seeking a divorce, contact an experienced Riverton Utah divorce lawyer. In order to obtain a divorce, the husband or wife who petitions has to assert that the marriage has irretrievably broken down, and has further to add the evidence that he or she relies upon. For an immediate divorce evidence on one of two bases can be used. The petitioner can add to the statement that the marriage has irretrievably broken down an allegation of adultery and assert that with the husband or wife. Alternatively, the petitioner can allege unreasonable behavior, which has to be behavior which is so intolerable that the petitioner could not be expected to put up with it. The distinction between an unhappy marriage and one which has irretrievably broken down can only be made by those who have already divorced. Ironically, the fact of divorce is not proof that the marriage did irretrievably break down. It is not unknown for unhappily married couples to divorce because their unhappiness is unresolved although the marriage relationship may not have broken down. Conversely, many husbands and wives stay together for financial convenience or because they consider it to be in the best interests of the children even though their emotional relationship has ceased to be of any significance. Every married individual, or couple if they are able to discuss their problems together, has to consider whether a relationship has ended. In recent years the relevance of their financial condition has usually been at the forefront of their problems. It is essential they should consider whether difficult financial circumstances exacerbate other problems. If there is no prospect of the financial situation being improved they have to consider how divorce will resolve it. For instance, if a warring couple are in arrears with mortgage payments on their home, a voluntary sale is more likely to produce a better offer than a forced sale by the building society, but it is unlikely that two homes can be purchased with the proceeds. Perhaps debt counselling in this situation should precede marriage counselling. Matrimonial counselling should enable a couple to decide whether they can bear to live together in an attempt to recreate their relationship. Often there is no question of joint consultation: if one partner has decided to leave, and is convinced that the marriage is at an end, he or she will not necessarily accept the need for counselling. The partner who remains will be in urgent need of counselling in order to learn to accept the situation or to learn how to persist in trying to save the marriage. He or she may however be forced into proceedings to prevent the other from taking unwise financial decisions such as emptying a bank account. Legal advice should be obtained at an early stage before any final decisions are taken. Divorce is, after all, a legal process. No responsible solicitor or other adviser will recommend that divorce be undertaken lightly because its consequences, unless they can be agreed, may be unforeseeable. Too frequently, couples separate and make separate arrangements without finding out whether the agreed solution is feasible. Of course if a marriage between financially independent partners ends in circumstances where there are no dependent children it may be that that neither wishes to incur the costs of legal advice; and the only significant asset may be a home which is to be sold and its proceeds equally divided. Many eventualities can be anticipated which should be considered and prepared for in advance. It would be unfortunate if, having divorced on an agreed basis, the husband or wife were later to lose work or earning capacity and find that there was no possibility of claiming maintenance from the other. Equally, if a claim for maintenance was made in a petition and was not dismissed later by an agreed order, the later inheritance of money by the other party could result in a financial claim being pursued. Annulment or Divorce?If you are married, you may have an alternative to divorce under Utah law. Legal separation and annulment are substitutes for divorce— one quite feeble, the other quite powerful. Legal separations keep a thin version of a marriage alive. Annulments are hard to get (in theory). But if a marriage is annulled, both parties can remarry; indeed, this is usually the point of an annulment. Both annulments and legal separations appeal mostly to people with religious scruples against divorce. Annulment is another way of ending a marriage. Annulment wipes a marriage off the books, as if it never existed. In American courts, annulment proceedings are much less common than divorce proceedings. The formal rules have always been—on the surface, at least—quite strict. Annulment is possible only when something was radically and fatally wrong with the marriage from the very beginning. A decree of annulment tears up a marriage “by the roots.” State statutes list various “grounds” for annulment—typically bigamy, impotence and fraud. The law of annulment distinguishes between “void” and “voidable” marriages, based, at least loosely, on the severity of the marital defect. Speak to an experienced Riverton Utah divorce lawyer to know if you can get your marriage annulled. Choosing The Right LawyerLawyers who represent clients act to protect legal entitlements by asserting them in litigated disputes or negotiations, counsel their clients on what the law permits, and structure their clients’ affairs with reference to the law. As this term will be used here, a legal entitlement is a substantive or procedural right, created by the law, which establishes claim-rights (implying duties upon others), privileges to do things without interference, and powers to change the legal situation of others (e.g., by imposing contractual obligations). Familiar examples of substantive legal entitlements include privacy interests that are protected by statutes and common-law rights against wiretapping, public disclosure of private facts, illegal searches by law enforcement officers and the like; real property rights that protect against trespass, encroachments, and seizures of property by the state without the payment of compensation; intellectual property rights that prohibit the appropriation of valuable ideas; and common law tort rights that seek to deter accidental injuries by providing remedies for those who have been harmed through the negligence of others. Entitlements may be created by courts, legislatures, administrative agencies, or by citizens themselves, using legal tools for private ordering, such as wills, trusts, contracts, partnerships, and corporations. For example, a lawsuit must be commenced with pleadings which are formally served using specified procedures. This process ensures that someone who is made a defendant in a lawsuit has notice of the claims being asserted against him, and an opportunity to defend himself. The rules of evidence also create procedural entitlements, which ensure that substantive rights and obligations are adjudicated in an orderly way, on the basis of admissible evidence only, and without unjustified interference with the rights of the litigants or of third parties. The hearsay rule, for example, prevents the introduction of evidence that is generally deemed unreliable, while the rule against introducing evidence of a party’s insurance coverage seeks to prevent the jury from acting out of bias against “deep pocket” insurance companies. Procedural rules may also be designed to protect more substantive interests. For instance, the rule against admitting evidence of a subsequent remedial action taken by a party is intended to avoid creating a disincentive to modify products or change safety procedures out of fear that these changes will be admitted at trial to show wrongdoing. Legal entitlements may conflict, and the job of a lawyer or judge may be to make a judgment about how a conflict among entitlements should be resolved. That resolution is what is commonly meant by the merits of a lawsuit. The possibility of conflicting substantive and procedural entitlements is familiar from criminal litigation, in which important dignitary interests of the defendant are protected by procedural entitlements against abuse by state officials. These entitlements, in turn, are backed up by remedies that may have an impact on the determination of the guilt or innocence of the accused. For example, the remedy for a wrongful search of the defendant’s premises may be exclusion of the wrongfully obtained evidence from trial. If that evidence is crucial to the prosecution’s case, the exercise of the defendant’s procedural entitlement may result in a verdict of acquittal. One of the fundamental principles structuring the law governing lawyers is that a lawyer’s role is defined and bounded by the client’s legal entitlements. To put it another way, the lawyer is an agent for a principal, the client, and as such can have no greater power than that possessed by the client. In legal terms, an agent is someone empowered to act on behalf of another. Because of the agency relationship between lawyer and client, the lawyer’s decision making authority is structured and limited by the client’s legal entitlements. As an authoritative summary of American law puts it, a lawyer has a legal obligation to “proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation.” This duty may require a lawyer to argue the client’s legal position in litigation, counsel the client on what the law requires and permits, or structure a transaction to avoid legal penalties or take advantage of legal benefits. But in any event, when a lawyer is acting in a representative capacity, her legal obligations are constrained by the client’s legal entitlements. Acting on any other basis, such as ordinary moral reasons or the interests of clients, would exceed the lawful power of the lawyer as agents. It would be ultra vires, in the language of agency law, and thus a legal nullity. A corollary of the principle that the client’s legal entitlements structure the attorney–client relationship is that lawyers may not permissibly assist clients in legal wrongdoing. The lawyer disciplinary rules state that lawyers may not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent,” and agency law provides that the lawyer retains inherent authority, which cannot be overridden at the instance of the client, to refuse to perform unlawful acts. The lawyer may not assist the client in illegality, because the lawyer–client relationship is created by the legal system for a particular purpose, which is to enable clients to receive the expert assistance they need in order to determine their legal rights and duties. As the United States Supreme Court noted, discussing the attorney–client privilege, a relationship of trust and confidence between a client and an attorney is necessary “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” On the other hand, lawyer–client communications are not privileged ab initio if the client consults a lawyer for the purpose of committing a crime or fraud. These legal principles show that society tolerates lawyers (albeit sometimes grudgingly) because lawyers contribute to a process by which people can regulate their interactions with one another with reference to legal entitlements. Take away the idea of legal entitlements and lawyers would literally cease to exist as a distinct profession. Thus, whatever lawyers do for their clients must be justified on the basis of their clients’ lawful rights, permissions, and obligations. Lawyers often talk as though the bounds of their role obligations are given by client interests rather than legal entitlements. In any principal–agent relationship, however, the agent’s rights and obligations are derivative of those of the principal. Someone who retains a broker to sell property conveys legal authority to the broker to transfer only whatever title the owner has. Similarly, a lawyer’s professional role is defined with reference to the rights and duties vested in the client by the law. Lawyers may lawfully do for their clients only what their clients lawfully may do. The lawyer’s professional role also excludes any permission on the part of the lawyer to try to exploit “arbitrariness, whimsy, caprice, ‘nullification,’ and the like.” A lawyer may be able to get away with some action that goes beyond her client’s entitlements, but this would lack significance as a lawful act, and thus not be something that can properly be said to be within the role of lawyer (as opposed to some other kind of adviser). This is such an obvious point that it is hard to understand why lawyers sometimes fail to appreciate it. But it may be the most pervasive feature of the normative framework of practicing lawyers that they proclaim an obligation to defend their clients’ interests within the law, rather than vindicating their clients’ legal entitlements. The difference between “interests within the law” and legal entitlements may seem like a semantic nicety with no theoretical significance, but in fact it reveals a vast gulf between attitudes of fidelity to the law and indifference to the law except as a potential source of sanctions to be avoided. Entitlements are what the law, properly interpreted, actually provides, while working “within the law” seems to suggest something broader and looser—equivalent, perhaps, to “whatever one can get away with.” The question of whether the lawyer’s obligation ought to be oriented toward client interests or entitlements may therefore be resolved in part by considering basic jurisprudential issues regarding the nature of the law. Loophole LawyeringMany legal ethics problems, which seem to present a conflict between legal entitlements and moral values, actually raise legal-interpretive questions. Once the interpretive issue is resolved, the moral issue dissolves. In general, this can be called the problem of “loopholes” in the law. The idea of exploiting loopholes is a staple of the popular criticism of lawyers, but it is important to be careful in defining these and other cognate terms. Members of the public sometimes complain about lawyers “getting the defendant off on a technicality,” where the reason for the acquittal, or dismissal of charges, was to remedy the violation of a constitutional right held by the defendant. The problem perceived by observers is that the result of the proceeding did not track the substantive guilt or innocence of the defendant—in other words, whether he actually did the act of which he was accused. But the purpose of a trial is not only to ascertain guilt or innocence, but to do so within a framework of procedural entitlements that are designed to safeguard important values such as the privacy and dignity of all citizens, and to protect against abuse of state power. These procedural entitlements are no less part of the law, and no less a part of the legal justice of the matter, than the determination of factual guilt or innocence. While one might criticize the existence or content of a particular procedural entitlement, perhaps on the grounds that it ties the hands of law enforcement personnel or is not necessary to protect values like privacy or dignity, the possibility that the entitlement is ill-considered does not make it a loophole. Similarly, procedural entitlements are available to parties in civil litigation which may have the effect of defeating the resolution of issues related to the substantive entitlements of the parties. Again, there are good reasons for the legal system to recognize certain procedural entitlements. The statute of limitations, for example, serves the dual purpose of ensuring that trials are not conducted on the basis of stale evidence and also of permitting citizens to form stable expectations that, at some point, their right to something will not be challenged. Legal ethics scholars sometimes talk about the “merits” of a case, and when that term is used, it is important to query whether merits includes the correct resolution of interpretive questions related to procedural entitlements. The lawyer in a case like the statute of limitations hypothetical may take an action that vindicates her client’s procedural entitlement, but defeats resolution of the substantive merits of the opponent’s position. This is consistent with the lawyer’s obligation of fidelity to law, because the legal system includes both substantive and procedural entitlements, and because the lawyer has a legal duty, as an agent of her client, to assert her client’s legal entitlements, whether substantive or procedural. On“Zealous” RepresentationLawyers quite properly understand themselves as having demanding obligations of client service, including following their clients’ instructions, keeping confidences, and delivering legal services in a competent and diligent manner. Curiously, American lawyers at least tend to include in their normative self-understanding an obligations to provide “zealous” representation, which gives competence an oddly affective dimension. The term “zealous” appeared in the ABA’s Model Code of Professional Responsibility, which has since been superseded in virtually every U.S. jurisdiction by the Model Rules. The modifier “zealous” does not appear in any of the legally enforceable obligations of the current Model Rules, although the Preamble to the Rules does continue to recognize that “as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” Nevertheless, if one were to ask practicing lawyers to justify actions in the hypothetical cases that appear to violate ordinary moral obligations (i.e., pleading the statute of limitations, filing the motion to terminate benefits, or aggressively questioning the plaintiffs about their sexual practices), the argument would more often than not make reference to the duty of zealous advocacy. The enduring popularity of this notion in the thinking of lawyers is noteworthy, because it seems to prescribe an affective state, as opposed to an action, and as a general rule lawyers do not think of legal obligations in terms of emotions and attitudes. It would be an unusual lawyer who advised a client that the duty of reasonable care in tort law required the client to feel a sentiment of concern for third parties; the lawyer’s advice would rather be that the client had to take such-and-such a precaution, and that would be the end of the matter. My hunch is that lawyers are attracted to the idea of zealous advocacy because it simplifies their normative universe to a considerable extent, by resolving ethical dilemmas in favor of the client’s interests. It only does so, however, by begging all of the important questions about how the obligation of zealous representation is to be weighted against the obligation to respect the law, which is also a feature of the lawyer’s role. It would be an unqualified intellectual advance if the expression “zealous advocacy” disappeared forever from legal ethics. Its overuse seems to encourage two significant conceptual mistakes. First, lawyers tend to forget the second half of their little mantra. The ABA Code said that lawyers should represent their clients zealously within the bounds of the law. As the Restatement provides, the lawyer’s basic duty is to “proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation.” The reference to the client’s lawful objectives shows that the client’s legal entitlements, not the client’s autonomy, moral commitments, or the lawyer’s own moral projects, are the yardstick against which the lawyer’s duties should be measured. In other words, the Model Code underscores the agency-law position taken here, which is that the lawyer’s basic duty as an agent for her client is to act competently and diligently on behalf of the client, but only to the extent that the client’s interests are recognized as legal entitlements. Even in litigation contexts the lawyer’s obligation is to pursue the client’s legal entitlements by lawful means, not to be unboundedly zealous. The law governing lawyers in litigation recognizes numerous limitations on zealous representation, including the prohibition on presenting frivolous legal arguments in federal and state rules of civil procedure, and duties of candor to the tribunal in the lawyer disciplinary rules. Although in some areas of practice, such as the representation of indigent criminal defendants by grossly overworked public defenders, lawyers may be rightly accused of being insufficiently zealous, by far the more pressing problem for legal ethics is the lack of respect by lawyers for the bounds of the law, defined in any sensible way. Nothing is more familiar than the charges that lawyers are a rather sleazy lot. This criticism comes in a variety of forms, from op-ed pieces in the newspaper, to campaign speeches by politicians, to endlessly repeated lawyer jokes. Beyond that, it is probably a rare lawyer or law student who has not been harangued by an acquaintance at a party or by a seatmate on a long flight about the legal profession. Criticism of lawyers encompasses a bewildering variety of themes: greed, including the closely related theme of overcharging clients; serving the fat cats at the expense of the little guy; preying on the misfortunes of others; being prone to lying and cheating on behalf of clients, and also to sometimes lie to clients; hyper-aggressiveness in litigation, or clogging up the legal system with frivolous disputes; being a drag on productive activities— writ small this is the familiar criticism that lawyers are deal-breakers; writ large it is the lament that lawyers impose costs on productive activities, rather than producing anything of value themselves; and of course the familiar claim (which many lawyers would cheerfully concede) that criminal defense lawyers help guilty people escape punishment, sometimes by obfuscating the truth at trial, other times by taking advantage of procedural technicalities to secure acquittals. To sum it up neatly, the public seems to believe that “the lawyer’s skill is the instrument by which justice is defeated; or, if justice prevails, it is because of a lawyer’s craftiness rather than for a respectable reason. Lawyers often use the term “legal ethics” to refer to the rules of professional conduct promulgated and enforced by public institutions. Philosophers would be baffled to hear lawyers say things like, “That may be unethical, but it isn’t wrong.” That phraseology can be explained, however, by the use of the term ethics to denote the rules of professional conduct under which lawyers practice. In the United States, the highest court in each state has the inherent authority to regulate the practice of law within the territorial jurisdiction of the state; these courts issue rules governing matters like fees, advertising, conflicts of interest, and confidentiality. These rules in turn are enforced by some kind of administrative agency, often loosely referred to as the bar association of State X. Lawyers are also regulated by the generally applicable law of agency, torts, contracts, evidence, procedure, criminal and constitutional law, and, if applicable, specialized law such as tax and securities regulation. Taken together, the entire law governing lawyers is sometimes also called legal ethics, particularly in the United States where instruction in “the history, goals, structure, values, rules, and responsibilities of the legal profession and its members” is mandatory in nationally accredited law schools. Principle of PartisanshipThe lawyer must act out of exclusive concern with the legal interests of clients. She is permitted to disregard the interests of affected third parties and the public interest, if it would be in the client’s interests to do so, and if the law permits the violation in question of the third party or public interest. Although the lawyer may counsel the client that disregarding the interests of another is morally wrong, if the client insists on taking the action (and again, if it is legally permitted), the lawyer is obligated either to do it, or to withdraw from representing the client if withdrawal can be accomplished without prejudicing the client’s interests. Principle of NeutralityNor may the lawyer let her own moral convictions stand in the way of doing something that she otherwise would regard as wrong, if the client instructs her to do so. Ordinary moral values are excluded from the lawyer’s practical reasoning and from the retrospective evaluation, by the lawyer herself or by others, of the lawyer’s actions. Citizens should not be denied entitlements secured by the legal system solely because a lawyer finds that person’s objectives unjust. The lawyer may—and indeed, in many cases must— refuse to pursue an objective that is unlawful, but may make this judgment on the basis of considerations internal to the law, not extra-legal moral reasons. Principle of NonaccountabilityThe third principle is not really a prescription for lawyers to follow, but a rule of inference that third-party observers should respect. The Principle of Nonaccountability means that, as long as the lawyer acts within the law, her actions may not be evaluated in ordinary moral terms.40 People should not call lawyers sleazy just because they represent sleazy clients, or do nasty things on behalf of clients. An observer evaluating the actions of lawyers representing clients should be limited to approving or disapproving the lawyers’ actions as a matter of lawyering craft. It is impermissible to step outside the practice of lawyering, and appeal to standards that are not part of the professional normative domain. The Changing Meaning of MarriageOut of the radical and reform movements of the 1960s and 1970s, and the changes in social norms that accompanied those movements, came a transformation in the legal significance of marriage. The constitutional principles of equality and liberty toppled ancient rules about families that were based on hierarchy and conformity. The seeds of valuing all families were planted. When the movement for gay and lesbian rights and liberation emerged during that time, marriage was considered part of the problem, not part of the solution. Marriage was a problem because it regulated the lives of men and women along gender lines—both within and outside of marriage—and because it policed the boundary between acceptable and unacceptable sexual expression. By themselves, the small number of those willing to live openly, proudly, even defiantly as gay men and lesbians could have made little headway against this institution that sought to channel them into, and keep them within, acceptable heterosexual norms. But they didn’t have to do it themselves. They had heterosexuals who were increasingly open about rejecting the sexuality-channeling function of marriage, and they had feminism. Feminism had the support and the momentum to demand an end to the limits on women’s life choices attributable to the expectations of women’s roles within marriage. For many women, these demands included the right not to marry. The contemporary movement for the rights of lesbian, gay, bisexual, and transgender people owes a great debt to the feminist movement of the 1960s and early 1970s, including its critique of marriage and the family. In an astonishingly short period of time, feminist agitation and the social and cultural changes of this era produced a seismic trans formation of the law of marriage. The old set of laws punished sex outside of marriage, imposed catastrophic consequences for bearing children outside of marriage, assumed and fostered “separate spheres” for men and women, and denied the ability to exit a marriage except under penalty. These laws had endured for hundreds of years. In less than a decade, a completely revised set of laws emerged. The new laws discarded the gender script, made entry into marriage more optional, and made exit from marriage more ordinary. In doing so, they made marriage a different institution and opened avenues for recognition of new family forms, including those of gay men and lesbians. The first changes to the legally prescribed roles of husband and wife occurred in the mid-nineteenth century with the passage of the Married Women’s Property Acts. These laws at first permitted women to keep property they owned at the time of the marriage. Later, after feminist advocacy, the laws were expanded to allow married women to enter into contracts and to control money they earned, although this change did not occur in some states until well into the twentieth century. Some legislators who resisted these changes as against God’s law declared them certain to lead to adultery and divorce. Surprisingly little had changed since the nineteenth-century Married Women’s Property Acts. Although women gained the right to vote in 1920, they could still be excused from jury service solely because they were considered “the center of home and family life.” In 1966 the U.S. Supreme Court upheld a Texas law that allowed a wife to avoid repaying a loan from the Small Business Administration because she had not received court permission to sign the note as required of married women under state law. Married women could still be required to use their husband’s surnames, and, for the most part, a wife’s legal residence followed that of her husband, affecting her ability to vote, hold public office, receive government benefits, qualify for free or reduced college tuition, serve on a jury, pay taxes, or probate a will. Giving the husband the right to determine the couple’s legal residence meant also that if he moved and the wife refused to move with him, she would be guilty of desertion and could be divorced based on her fault. An Arizona court writing in 1953 upheld the husband’s right to decide where the couple lived, because he had the duty of financial support and “there can be no decision by majority rule as to where the family home shall be maintained.” The right of a wife to support—what she got in exchange for ac ceding to the husband as the head of the household—was not a right she could enforce during a marriage. In a 1953 Nebraska case, the wife asked a court to order her husband to pay for indoor plumbing, a new furnace, and money she could use for clothing, furniture, and other expenses. She testified that her husband had not given her any money for four years, that he would not allow any charge accounts, and that he did not permit her to make any long-distance telephone calls. The trial judge ordered the husband to buy some items and to provide a monthly allowance to his wife. The state supreme court reversed that decision, holding that a wife could proceed against her husband for support only if they were separated. “As long as the home is maintained,” the court wrote, “it may be said that the husband is legally supporting his wife.” Gendered roles within marriage had always affected women’s opportunities in public life. Until 1963, it was legal to pay women less than men for doing the same job. That year, the Presidential Commission on the Status of Women spearheaded passage of a federal law guaranteeing equal pay for men and women. The following year, Congress enacted the Civil Rights Act, with Title VII prohibiting discrimination in hiring, promotion, and other areas of employment on the basis of sex as well as race. Even after the mandate of equal opportunity for women, employers were slow to change their practices; into the early 1970s, newspapers routinely divided job advertisements into “Help Wanted: Male” and “Help Wanted: Female.” The Divorce RevolutionsUntil the 1960s, social and legal consequences of nonmarital birth demonstrated strong condemnation of sex outside marriage. Pregnancy and childbirth were hard-to-avoid consequences of sex, as abortion was illegal and effective contraception was either illegal or difficult to obtain. Teenage pregnancy rates peaked in the 1950s, but half of those pregnancies resulted in shotgun weddings, pressed by the woman’s family to preserve a daughter’s honor and avert shame and disgrace. Of those who did not marry, over twenty-five thousand a year were sent to more than two hundred “unwed mother” homes where they gave birth secretly and almost always relinquished their children for adoption. Women who gave birth and kept their children, including the black women who were excluded from most of the unwed-mother homes, faced harsh state policies, including eviction from public housing and denial of public assistance. Doctors sometimes sterilized them without their knowledge or consent. The cultural changes that accompanied the social and political movements of the 1960s included a revolution in sexual mores. The birth control pill, introduced in 1960, for the first time provided women a reliable means of being sexually active and avoiding pregnancy. “Make love, not war” was a refrain for a generation that questioned the authority of its elders. A sexual double standard lingered for women and men, but this was decried by second-wave feminism. The groundbreaking studies of sexuality researchers William Masters and Virginia Johnson identified women’s sources of sexual satisfaction, demonstrating, among other things, that women could achieve sexual fulfillment without men. As hostility to nonmarital sex decreased, legal doctrine reflecting condemnation of such sex became less tenable. One spouse’s fault not only gave the other grounds for divorce, it also to a large extent determined the consequences of divorce. Adultery was a ground for divorce everywhere. Although in the mid twentieth century a “tender years presumption” meant that mothers of young children would be awarded custody if there was a divorce, this only held true if they were without fault. Sex outside marriage rendered a mother “unfit” and cost her not only her marriage but her children as well. A woman’s fault also relieved her husband of any obligation to support her. Even though a divorced woman could keep property she owned in her own name or had purchased with her own money, the rigid gender roles assigned husbands and wives made it unlikely that she had such assets. With no access to property in her husband’s name, no entitlement to spousal support or child custody if she committed marital fault, and limited options for economic self-sufficiency in a marketplace rampant with sex discrimination, the consequences of extramarital sex for a woman were severe. By the 1960s, social practice was out of step with divorce law. Cohabitation became more accepted and more common as “desertion” occurred, and without divorce there could be no remarriage. The divorce rate rose, in part due to liberal divorce laws in Nevada and in other countries, where the wealthy could travel to dissolve their unions. Many couples who wanted to end their marriages manufactured grounds—such as physical cruelty or adultery—to get divorced. This was particularly rampant in New York, where adultery remained the only ground for divorce until 1966. Legal Transformations Involving Marriage and FamilyThe law reform strategy of liberal feminists achieved extraordinary success in a series of cases in the 1970s. The first Supreme Court case to strike down a distinction between men and women as unconstitutional arose out of an Idaho statute that presumed men more capable than women of administering the estate of a person who died without a will. When a child named Richard Reed died, his mother and father, who were separated, each sought to administer his estate. The judge appointed Richard’s father. The Idaho Supreme Court held that “nature itself” created the distinction between men and women and the legislature could conclude that in general men were better qualified than women to administer estates. When this case reached the U.S. Supreme Court in 1971, the Court ruled for the first time that a sex-based statute was “arbitrary” in a way that violated the equal protection clause. The Court required the judge to hold a hearing to determine who was better suited to administer the estate. This case was not about “family law” narrowly defined as the obligations of a husband and wife toward one another. But the law at issue was the explicit product of the gendered view of men and women under the doctrine of coverture. Writing the brief for Sally Reed, future Supreme Court Justice Ruth Bader Ginsburg protested the “subordination of women” inherent in preferring men without regard to the ability of the applicants. The scheme dated back to the 1940s and 1950s and reflected the legal reality that a husband was obliged to support his wife and the corresponding factual reality, as found by the trial court that heard the case, that husbands were typically breadwinners and wives typically dependent. The government argued in favor of retaining the distinction between men and women because of “administrative convenience.” It said that because most wives were dependent on their husbands, it was cheaper and easier to presume dependence and automatically award the benefits. But because few husbands were dependent on their wives, it was appropriate to require proof of the husband’s dependence before spending government funds. The Supreme Court eliminated the sex discrimination by allowing all married service members additional benefits. In 1975 the Supreme Court heard the case of Stephen Wiesenfeld, whose wife, Paula, had died in childbirth. Their child was entitled to receive Social Security survivors’ benefits as a result of Paula’s death, but Stephen was not; a surviving mother could receive benefits after the father’s death, but a surviving father could not receive benefits after the mother’s death. This sex-based classification had been included in amendments to Social Security enacted in 1939 when it was a “generally accepted presumption that a man is responsible for the support of his wife and children.” The Court found that the purpose of the benefit was to allow women to forgo paid employment and stay home with their children. By focusing on the interest in providing a child with a stay-at-home parent after the other parent died, the Supreme Court concluded that it was irrational, and therefore unconstitutional, to provide the benefit only to surviving mothers. In 1977 the Supreme Court found sex discrimination in another Social Security regulation, this one providing survivors’ benefits to all elderly widows, but to elderly widowers only if they had been receiving more than one-half of their support from their wives. Some Supreme Court cases decided in the decade after Reed lay within the realm of family law. In a Utah case, the law eliminated a parent’s obligation to support his daughter at eighteen, and his son at twenty-one. The state supreme court upheld the law based on the belief that “the man’s primary responsibility is to provide a home and its essentials for the family,” and the extra education or training enabled by the requirement of parental support until twenty-one would facilitate that. The U.S. Supreme Court reversed. In 1979, the Court invalidated the sex-based classification in an alimony statute that denied husbands the opportunity to get alimony from their wives, and in 1981 it invalidated a Louisiana law that made the husband the “head and master” of the household and thus gave him the power to dispose of all community property without his wife’s consent. These cases made progress in achieving formal equality through elimination of sex-based classifications. Although the law today does allow some sex-based distinctions, it permits none of the distinctions once linked to the gendered nature of marriage. As a result of the Supreme Court decisions, all benefits and obligations once tied to the legally mandated dependency of women upon their husbands have been eliminated or expanded to include both spouses. Both have a right to request alimony; both have the right to manage community property; both are entitled to survivors’ benefits under Social Security and workers’ compensation laws. Feminist efforts resulted in gender neutrality superimposed on a set of laws grounded in the gendered nature of marriage. The resulting regime singles out marriage for special treatment, but only as a byproduct of the remedy for ending gender inequality, not as a reasoned conclusion that marriage entitles people to special treatment that other relationships cannot claim. In other words, the special treatment accorded marriage in family law, Social Security, employee benefits, and other critical areas masks the original purpose of those areas of law. Alimony is a good example. Alimony enforced a husband’s obligation to provide lifelong support to his wife. He had to assume this obligation at marriage because she lost the ability to support herself. He could be relieved of this obligation only if she died or, in the rare circumstance of divorce, if she married another man who assumed responsibility for her support. Feminist success in achieving formal equality eliminated the gender component, and now, where appropriate, either a husband or wife may seek alimony, even though neither spouse loses the ability to support himself or herself when marrying and easy divorce means that whatever obligations spouses have toward one another are not inherently lifelong. Ending IllegitimacyThe long-standing social stigma of illegitimacy was accompanied by harsh legal consequences. The law permitted and endorsed discrimination against children born outside marriage as a means of expressing condemnation of nonmarital sex. For centuries such children were fillius nullius, the child of no one, meaning they had no legally recognized relationship with, including no right to support from, their mother or father. In Stanley v. Illinois, Peter Stanley challenged an Illinois law that automatically made his children wards of the state when their mother died. The state would not have stepped in if he and their mother had been married. The Court ruled that the state could not presume Stanley unfit simply because he was never married to the children’s mother, with whom he had lived intermittently for eighteen years. Stanley had a constitutional right to raise his children; marriage was irrelevant. With this case, the Court overturned centuries of law that created a father-child relationship only for a man married to a child’s mother. The next year the Court ruled that children’s right to support payments from their father could not turn on whether their father had been married to their mother. A 1973 decision limited the government’s ability to deny benefits to households with unmarried parents. New Jersey Welfare Rights Organization v. Cahill challenged a New Jersey program that extended benefits to financially needy households consisting of “two adults of the opposite sex ceremonially married to each other” who also had at least one biological or jointly adopted child, or one child born to one spouse and adopted by the other. The trial court ruled in favor of the state. It determined that the state could favor married families because such families provided norms, preventing a breakdown in social control. The court described marriage as a “permanent, or at least semi-permanent institution.” It noted that “a living arrangement which does not have the aura of permanence that is concomitant with a ceremonial marriage, often does not provide the stability necessary for the instillment of those norms with the individual necessary for proper behavior.” It concluded that it was proper for the state to refuse to subsidize a living unit that violated its laws against fornication and adultery and that New Jersey could use its program to discourage immorality and illegitimacy. According to the trial court, the program did not unconstitutionally discriminate against nonmarital children, because their parents could cure the problem by getting married, and this was a proper incentive for the state to offer. The Supreme Court reversed the lower court. It found “no doubt that the benefits extended under the challenged program are as indispensable to the health and well-being of illegitimate children as to those who are legitimate.” Therefore the program violated the equal protection rights of nonmarital children. Justice Rehnquist was again the lone dissenter. He argued that the state could require marriage as an essential ingredient of a deserving family unit and said that, “the Constitution does not require that special financial assistance designed by the legislature to help poor families be extended to ‘communes’ as well.” No-Fault DivorceMarriage was no longer necessary to create legally recognized relationships with children. Marriage was no longer necessary to stave off moral judgments enforced by law. People could be sexually active and remain unmarried. The final seismic shift of this period transformed the law of divorce, enabling people who did marry to leave those marriages for reasons unheard of in previous centuries. In 1964 the California legislature held hearings on the state’s divorce laws. Professor Herma Hill Kay, among others, testified about eliminating fault as the basis for divorce. Two years later, the governor appointed a Commission on the Family, and the commission’s report became the basis for the nation’s first pure no-fault divorce law, enacted in 1969. During this period, the National Conference of Commissioners on Uniform State Laws studied marriage and divorce law, culminating in a draft in 1970 of the Uniform Marriage and Divorce Act, which recommended no-fault divorce. No-fault divorce brought with it new thinking about the role of fault in determining child custody. The rule that a parent who has sex outside marriage was automatically unfit to have custody was out of step with increased acceptance of nonmarital sex. Responding to changing sexual mores, when the drafters of the Uniform Marriage and Divorce Act considered a model statute on child custody, they included the provision that “the court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.” This constituted a rejection of the rule automatically linking sex outside marriage to unfitness. While it is unlikely the drafters had lesbian and gay parents in mind, the idea that parents’ sexual behavior should not automatically keep them from having custody was an enormous boon to those who would soon advocate that lesbian mothers leaving marriages should be able to keep custody of their children. Combined with the removal of homosexuality from the American Psychiatric Association’s list of mental disorders in 1973, this became the backbone of the legal strategy in support of lesbian mothers. The Family RedefinedLooked at together, these changes in the law of gender, sex, relationships, households, and families were adjustments to the dramatic social changes and political demands of the 1960s and early 1970s. Some of these developments, most notably in divorce laws, occurred through enactment of new statutes, reflecting a political consensus to conform law to modern life. As important, however, is the role that the Supreme Court played in constraining both federal and state legislators unwilling to adapt to a society in which people organized their lives less and less around marriage. The Financial Consequences of Splitting UpThe plaintiffs in marriage-equality cases do not say that they want to marry so that if they split up the property division and support rules that accompany divorce will apply to them. Like all couples who plan to marry, they do not expect to divorce. But the different rules for settling money issues at the end of a marriage versus an unmarried relationship can cause indefensible hardship. Until the changes in divorce laws in the 1970s, the forty-two “common law” property states did not treat the end of a marriage as an event needing specific rules for determining who got what property. The person whose name appeared on the title to land or the bank account kept it. Untitled property belonged to the spouse who paid for it. Obviously, this meant the husband owned most of the property during the marriage and kept it when the marriage ended. For example, in a 1974 case at the end of a twenty-two-year marriage, a wife who had no outside employment for the first ten years while she cared for the children, and who kept homemaking even when she had paid employment, received her personal items and her car. Her husband kept a 265-acre farm, the family home, machinery, and livestock. The court said the result was “harsh” but required by the law.2 With no-fault divorces and many more marriages ending in divorce, courts and legislatures in common law property states came to see the outcomes as unfair because they failed to take into account noneconomic contributions to the household. They established new laws allowing judges to transfer title to property—something that would have shocked our ancestors—to achieve a result that was “equitable.” The law governing the end of unmarried relationships has not caught up with the times. Traditionally, the law would not even enforce deals in which a man agreed to provide for a woman with whom he “cohabited.” The law considered such arrangements no different from prostitution. When the California Supreme Court ruled in 1976 that actor Lee Marvin could be required to support Michelle Triola Marvin if he had agreed to do so, it heralded a more modern treatment of unmarried couples. Unfortunately, Marvin v. Marvin proved to be an end point, rather than the beginning of a more appropriate legal treatment of all families. Law books are filled with decisions denying assets and support to “stay-at-home moms” who lived with male partners, raised children, and got nothing when those relationships ended. Some were together for decades. All they had available to them when their relationships ended was the opportunity to prove a contract with their former partner or financial contributions to the former partner’s property. Their status as a partner who devoted years to home and family counted for nothing. In fact, Michelle Triola received nothing. She was unable to prove a contract with Marvin, and the court refused to approve an award of temporary support based solely on the equities of their situation. Contracts are hard to prove. In a 2006 case at the end of a thirteen year lesbian relationship, Harriet argued for compensation based on her partner Sara’s pension, which was valued at close to $250,000 for the period the couple was together. The judge ruled against her, finding that Sara had not agreed to share her pension if their relationship ended. Even when couples have agreements, a few states still adhere to the pre-Marvin rule and refuse to enforce them. ALI PrinciplesThe vast increase in the number of unmarried couples living together prompted the American Law Institute to include “domestic partners” in its Principles of the Law of Family Dissolution. If a cou ple meets the criteria for domestic partners, then the rules governing the financial consequences of their dissolution are the same as those applied to married couples, unless they make an agreement to the contrary. The authors, including law professor Grace Blumberg, base this doctrine on “the familiar principle that legal rights and obligations may arise from the conduct of the parties with respect to one another, even though they have created no formal document or agreement setting forth such an undertaking.” The ALI principles define as domestic partners two individuals who are “not married to one another, who for a significant period of time share a primary residence and a life together as a couple.” They presume that a couple who lives together for three years meets this test. If they have a child, they meet it after two years. The principles list thirteen factors relevant to determining whether two people “share a life together as a couple.” They include written and oral statements and promises made to one another about the relationship; statements to others and the couple’s reputation in the community as a couple; commingling of finances; economic interdependence, or dependence of one person on the other; assumption by the parties of specialized or collaborative roles; changes in the life of either or both as a result of the relationship; naming of each other as financial beneficiaries or in documents, such as wills; participation in a commitment ceremony or partnership registration; jointly raising a child; and the parties’ emotional or physical intimacy. Marital and Separate PropertyUtah like most states differentiate between “marital property” and “separate property.” Separate property is owned before marriage or acquired through gift or inheritance. When people divorce, most states divide only marital property. Some allow a judge to divide separate property to avoid an unfair result. Still others consider all property either party owns up for grabs. Certainly a divorcing spouse with inherited wealth might be surprised to learn that his spouse could get a share of it, especially if his brother, who lives in a different state, was able to shield his inheritance during his divorce because it was separate property. He might say he never thought marriage would give his wife a claim on his inherited wealth. The wife might also have assumed she had no claim on those assets until she consulted a lawyer. The law is set to establish a norm for all regardless of what they think or intend. Even marital property rules differ from state to state. Some statutes require a fifty-fifty division. Some presume a fifty-fifty division but let a judge rule otherwise. Some instruct a judge simply to do what is “just” or “fair” or “equitable.” Some states consider why the marriage ended; some think that’s irrelevant. Spouses don’t know when they marry whether their sexual infidelity or other marital “fault” could have economic consequences when they divorce. They couldn’t. The law on that also differs from state to state. An unfaithful wife will be barred from alimony in North Carolina but not in New Jersey. An unfaithful husband may have to “pay” for his transgression in North Carolina but not in Delaware. In some states a divorced spouse cannot receive alimony unless he cannot support himself. AlimonyFamily law gives divorce courts three (and only three) financial tools: child support, property distribution, and alimony. While child support orders are commonly entered at the time of divorce, their focus is not the spouses’ responsibility to each other, but rather their responsibility to common children. The distribution of marital property is a more appropriate tool for imposing divorce consequences, but its usefulness is limited by the fact that while most divorcing couples have the ability to produce future income, they have few existing assets. Alimony is thus often the only available tool for addressing the financial consequences of a divorce. To be sure, alimony is not always a practical tool. When spouses have barely enough income to keep one of them out of poverty, an alimony award is useless. But in very many middle and upper-class marriages, alimony is an important tool for ensuring that the long-term costs of marital roles do not fall exclusively on family caregivers. Alimony is complex—more complex than Alimony Nightmares or popular fiction can fully convey. Alimony is a mirror of American culture, a reflection of changing views of women, of marriage, and of personal commitment. Its history is a richly layered account of the tension between individual and collective responsibility for dependency, of aspirational reform surprised by the intractability of gender-driven roles and the cruel judgment of well-intentioned dreamers. Alimony is a tale of notoriety and hype, of risk and high stakes, of the danger of myth and the powerful symbolism of money. It is at once a grand narrative of the evolution of law, and a personal story of an intimate relationship—a story of betrayal, desperation, and bravado, of investment, regret, and freedom to start over, a story of self-sacrifice aging into lost opportunity and financial responsibility hardening into involuntary servitude. And it is a tale without a grand finale, a still evolving story of what is sometimes cast as the lone holdout in family law’s dramatic progression from coverture to partnership marriage. Divorce and PensionNo-fault divorce rested on a “clean-break” principle that influenced alimony and property distribution. Divorcing spouses were supposed to get on with their lives, as best they could. Yet, even during a short marriage, one spouse sometimes greatly enhances his earning power, while the other drastically reduces hers by staying home with the children. Earning power is often the most valuable asset of the marriage. If so, then it is unfair to confine the distribution to traditional property, and without taking future earnings into account. Hence, modern divorce law has begun to focus on “new property”—things that can’t be touched or held, but nonetheless have economic value: pensions, business goodwill, professional licenses, and professional degrees. An experienced Riverton Utah family lawyer can advise you on how you can protect your earnings in case of a divorce. Divorce LawyersDivorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not. Riverton Utah Divorce Lawyer Free ConsultationWhen you need legal help with a divorce in Riverton Utah, please call Ascent Law LLC (801) 676-5506 for your free consultation. We can help you with divorce, child custody, child support, alimony, prenups, postnups, annulments, adoptions, guardianships, conservatorships, and much more. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506 via Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-riverton-utah/ |
Probate LawyerProbate Lawyer in West Jordan Utah. If you need probate lawyer, trust attorney, inheritance counsel, living trust, last will and testament, call 801-676-5506 now for a free consultation. Archives
April 2023
Categories |