If you are seeking information on divorce, an experienced Herriman Utah divorce lawyer is your best friend. Utah divorce law is complex. American law in general is very complex. Like a spider’s web, the web of law is very complex and, except to insiders, may seem entirely bewildering, but it has structure. Do not attempt to navigate the complex web of Utah divorce laws. Seek the assistance of an experienced Herriman Utah divorce lawyer. The structure of the American legal web, and thus its complexity, is driven by the principles of separation of powers, checks and balances, and federalism. So, theoretically, the task of law is divided among lawmakers (the legislative branch), law enforcers (the executive branch), and law interpreters (the judicial branch). Of course, even theoretically, the edifice began to teeter right from the beginning because the Founders, in attempting to make “ambition … counteract ambition,” added checks and balances to the mix, giving the lawmakers power over the enforcers and interpreters, the law enforcers power over the makers and interpreters, and the law interpreters power over the makers and enforcers. Moreover, they threw federalism into the mix, resulting in the whole system replicating itself over (today) fifty additional systems. Thus, even in its most pristine, original form, the structure of American law is very complicated. Court Organization and Structure Herriman UtahIn many ways, although courts tend to be the most mysterious of our governmental institutions, they tend to be the most familiar part of the legal system. When we think about the law, we usually have courts in mind. This tends to be the case even though most of us do not have much experience with courts. You may serve on a jury or go to traffic court or go through a divorce, but very few laypeople, except, of course, for jurors and a few litigants, have ever experienced a real live trial. Moreover, when we move beyond the trial courts up to the level of appeals courts, generally only lawyers and judges are directly involved. On the other hand, almost everybody has watched a TV or movie trial. Litigation has been a staple of American entertainment since the time of the Founders. Whether it comes packaged as the real thing (in the forms of gavel-to-gavel O. J. Simpson coverage, or the endless leaks and rumors that made up the news of President Clinton’s legal/political woes, or the full platter of murders and romantic misadventures that constitute the daily fare offered by Court TV), as the semi-real thing (in the ever stern but fair judgments of Judges Joe Brown and Judy), or as pure fiction (in such forms as Scott Turow novels, John Grisham movies, or any one of the many lawyer-centered dramas that have been a mainstay of television since the 1950s), the media is where most of us get our impressions of the system and structure of our courts. Now there is certainly nothing wrong with court based entertainment—indeed, it can be absolutely riveting, sometimes a lot of fun, and occasionally even educational. It is riveting and fun because court-based entertainment tends to focus on the unusually dramatic, the unusually glamorous, and the unusually horrific. It is occasionally educational because it offers us a slice of law, usually in easily digestible form. At the same time, however, these entertainment-oriented attributes can be very misleading. As unusual as the entertainment bill of fare is, the real work of courts, more often than not, is the stuff of everyday life, and as simple as TV makes it all seem, the American court system is incredibly complex—a huge web of detailed yet overlapping jurisdictional boundaries. Indeed, let us begin with the term jurisdiction for it is key to the organization and work of the courts. Jurisdiction has to do with the legal limitations on the types of cases a court may hear and decide. Jurisdiction may be set by a constitution, or, in the case of supreme courts, largely by the court itself, but the most common source of court jurisdiction is the legislature. Thus, as much as we may like to think of the law as being above politics, in fact, even on this most basic point—the kinds of cases courts can hear and decide—legislative politics is the starting point. First, courts are authorized to hear and decide conflicts that arise within specific geographical jurisdictions. For instance, a Utah court has no jurisdiction to try a person accused of committing a crime in California. Further, a court’s political boundaries (i.e., its geographical jurisdiction) are typically drawn along the lines of other governmental bodies such as cities, counties, or states. Hence, the trial court for Herriman, Utah would generally not have jurisdiction over a crime or civil suit arising in Salt Lake City, Utah. Jurisdiction is also determined by subject matter. For example, state trial courts of limited jurisdiction are restricted to hearing a circumscribed category of cases, typically misdemeanor crimes and civil suits involving small amounts of money. In contrast, trial courts of general jurisdiction are empowered to hear all other types of cases (generally speaking, cases the legislature deems more serious such as criminal felonies and civil claims with no dollar limitations). In addition, certain types of cases are not allowed to be brought to court. For instance, courts have no jurisdiction to decide church disputes over doctrinal matters. Or, for another example, the U.S. Supreme Court will not hear cases involving so-called “political questions,” although, as we discuss below, what constitutes a political question changes from Court to Court and era to era. Finally a court’s jurisdiction is set by functional considerations. Functionally, a court may have either original jurisdiction or appellate jurisdiction, and some courts have both. Most courts in this country are courts of original jurisdiction, which means they have the authority to hear and decide a case in the first instance—in other words, if there is to be a trial, here is where it occurs. Appellate jurisdiction, on the other hand, means that a court has the authority to review cases that have already been decided by a court of original jurisdiction or a trial court. Now, let’s say that our ill-begotten friend is convicted of the abovementioned crime. A criminal defendant who loses at trial can appeal her case. She would appeal alleged legal errors. She might claim, for example, that the police seized the weapon from her home illegally and then, further, that the court compounded the error by allowing the weapon to be introduced at trial. Or she might claim that the judge gave biased instructions to the jury, or that the judge allowed the prosecutor to proceed in a prejudicial manner. These are all questions of law and these are the kinds of questions an appellate court would consider. To take some well-known real life examples, had Mr. Simpson been convicted, he would have appealed, for instance, the judge’s allowing his friend to relate the content of a dream in court. He would have contended that as a matter of legal procedure—of law—Judge Ito should not have allowed a witness to talk about what he claims the defendant related to him about a dream. Similarly, Timothy McVeigh appealed his Oklahoma bombing conviction on grounds of “juror misconduct, unfair exclusion of evidence that ‘someone else may have committed the bombing,’ prejudicial pretrial publicity and inflammatory testimony by victims’ relatives” (“McVeigh Conviction, Sentence Upheld,” 1998). Appeals courts consider these kinds of questions, and only rarely do they go over the facts again. Because of this difference in function, trial and appeals courts operate very differently. In appellate courts, no witnesses are heard, no trials are conducted, and juries are never used. Indeed, the appeals process is often entirely conducted on the basis of paper records and briefs, although in some cases the lawyers representing both sides will present their arguments orally. In addition, instead of a single judge deciding, which is the norm in trial courts, groups of judges generally make appellate decisions. Our system of federalism, too, has jurisdictional implications. We are blessed (or cursed, depending on your perspective) with a dual court system in this country: one national system and fifty state systems—in other words, fifty-one court systems. To put it in overly simplistic terms, federal courts have exclusive jurisdiction over federal laws and state courts have exclusive jurisdiction over state laws, but this is indeed an oversimplification. The basis for federal court jurisdiction is the U.S. Constitution. Over the years, this vague jurisdictional outline has been fleshed out by Congress in numerous detailed statutes. While these rules are very complicated, it is possible to boil federal jurisdiction down into three broad categories: • Federal question jurisdiction is based on the subject matter of cases. Federal courts are entitled to hear all civil and criminal cases that are based on the U.S. Constitution, on treaties with other nations, and on federal statutes. State court systems—and the federal system, for that matter—are organized hierarchically. Thus, most state systems feature a series of minor trial courts, major trial courts, a smaller number of intermediate appeals courts, and a single supreme court. To all four of these court prototypes there are exceptions and a great deal of variation, but this four-level pyramid is the general rule. A second obvious cut we can make in talking about kinds of law is that between criminal and civil. Simply stated, criminal law deals with activities that have been forbidden by government—this can mean anything from a parking violation to murder. In the American judicial process, the violation of a criminal law is a violation not simply against another individual or group, but against government itself. Government acts as a proxy for the individual victim. This is why in criminal litigation you always see cases referred to as State v. Smith (or, in some states, as People v. Simpson or Commonwealth v. Woodward), or U.S. v. McVeigh. Thus, legally, Timothy McVeigh committed a crime against all of us, not just against the unfortunate victims in the Murrah Federal Building. In order to convict someone of a criminal act, the government needs to convince a judge or jury that the defendant is guilty beyond a reasonable doubt. In the mid-twentieth century, a variety of factors converged to spark a second wave of marriage law reform. Demographic changes since 1900 were dramatic: life expectancy for women was forty-eight years in 1900 and seventy-eight in 1980; increased life expectancy meant that most parents had years as “empty nesters” after their children left home, whereas in 1900 parents lived most of their lives with their children; and at midcentury women began childbearing at an older age and bore fewer children than had women in 1900. In the decades following World War II, economic changes led women, including married women and women with children, into the paid labor force in unprecedented numbers. This drew women out of the home for part of the day and gave them greater economic independence. The introduction of the birth control pill in the 1960s gave women more control over whether and when they would become pregnant. Greater ability to plan the timing of their children encouraged women to work outside the home and to think of “careers” rather than temporary jobs. All these changes predated the resurgence of feminism. Only beginning in the late 1960s and the 1970s did the ideology of equal rights developed by the black civil rights movement of the 1950s and 1960s help revitalize feminism, spurring the women’s movement to insist on equality between men and women as spouses as well as individuals. Also drawing on the legacy of civil rights and liberation struggles of the 1960s, in the 1970s gays and lesbians insisted on an end to legal discrimination against homosexuals and an end to the ban on same-sex marriage. Child Custody Herriman UtahThe federal and uniform acts do not eliminate all interstate custody problems. One vexing issue that has not yet been resolved is whether the state entering the custody order must have personal jurisdiction over both spouses. Child Support in Herriman UtahChild and spousal support matters, like child custody, historically have been decided under state law. The Full Faith and Credit Clause, however, does play a role in the enforcement of interstate support orders. The law of support follows closely the pattern established with custody orders—a uniform act adopted by the states, which has been given stronger teeth by a federal statute adopted pursuant to congressional authority under the Full Faith and Credit Clause. The success of the PKPA in the area of interstate custody encouraged Congress to seek statutory solutions for interstate child support orders. As a result, Congress in recent years has passed several major pieces of legislation dealing with interstate enforcement of child support orders. Although the law and practice have come a long way in the past two decades, a major obstacle stands in the way of further progress. That obstacle is the Supreme Court’s opinion in Kulko v. Superior Court (1978). In that case, a New York family had entered into a custody agreement, which gave custody of the two children to their father. Later, with his permission, the children moved to California to live with their mother, and she later obtained a California support order. When she sought to enforce the order, the husband resisted, on the ground that the California court lacked personal jurisdiction over him. The Supreme Court agreed. Justice Marshall’s majority opinion applied the well-known “minimum contacts” test concerning personal jurisdiction to the question and found that the test had not been satisfied. In so holding, Justice Marshall made two troubling observations: He first noted that the litigation arose “not from the defendant’s commercial transactions in interstate commerce, but rather from his personal, domestic relations.” It is difficult to understand the relevance of this attempted distinction. After all, if the children are not properly supported in California they will suffer demonstrable—and foreseeable—harm in that state. When viewed in that light, it is easy to see how the facts of Kulko could have been found to satisfy the minimum contacts test. Moreover, the fact that the case involved a “domestic relations” problem rather than a “commercial transaction” argues in favor of finding personal jurisdiction. If the type of problem matters, as the majority suggests, than it is hard to understand why commercial matters are more important than domestic ones. Finally, the Court referred to the fact that the then-existing Uniform Act dealing with interstate child support (“URESA”) provided an alternative method for obtaining child support from an out-of-state obligor. That reference makes no sense. URESA was such a cumbersome and ineffective method of obtaining relief that it eventually was discarded in favor of UIFSA, discussed above. It can only be assumed that the Court was thinking that it did not have to address more general issues of long-arm jurisdiction when the petitioner would suffer no harm as the result of the decision. If that was indeed the Court’s thinking it was dead wrong; URESA was a poor substitute for obtaining relief directly through longarm jurisdiction. The Kulko decision has met with heavy resistance in the states. The drafters of UIFSA expressly included a provision for asserting jurisdiction over an outof-state obligor that is flatly inconsistent with Kulko. Section 5 of UIFSA provides that a court may exercise jurisdiction in a support matter if “the child resides in this State as a result of the Acts or directives of the defendant.” Obviously, it is widely believed that Kulko is both bad policy and likely to be overruled when the Court gets the question again. Both suppositions are correct. Kulko certainly is bad policy; it is hard to understand why failure to support a child does not permit the child’s state of residence to exercise jurisdiction over the obligor in order to protect the child (as well as the treasury of the state, which will be forced to support the child if the parents do not). Surely that exercise of jurisdiction satisfies the minimum fairness test, which is the basis of all modern exercises of long-arm jurisdiction. Herriman Utah Divorce Lawyer Free ConsultationWhen you need help with a divorce in Herriman Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
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How Many Years Do You Have To Be Married To Get Alimony? Probate Lawyer American Fork Utah Can A Lawyer Stop A Foreclosure? via Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-herriman-utah/
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