Saturday, June 30, 2018

What Should I Do Before Filing for Divorce?

Entering marriage may be the most important decision a person will ever make. Not only are you making the commitment to spend the rest of your life with your partner, you are also opening yourself to sharing financial responsibilities, raising a family and owning property. Most sensible people take the time to weigh the pros and cons of whether to get married. However, not enough people weigh those same options when it comes to ending a marriage. By the time most people consider filing for divorce in Utah, they have already beaten down by stress and may not be in the proper frame of mind to ask themselves these important questions. It is often one of the biggest mistakes many people make. One of the best solutions is to first seek input from a mediator, a marriage counselor or a Salt Lake City divorce lawyer to properly evaluate whether divorce is the best option.

What Should I Do Before Filing for Divorce

VOICE YOUR CONCERNS

Communication is an important component in any successful relationship. But not every marriage is built to last. There will be times when even the strongest relationships will begin to go through rough patches. It is vital to maintain a good level of communication. Do not be afraid to voice your concerns to your partner. But simply voicing your concerns is not enough. Effective communication also involves listening to your spouse. Be cognizant of their feelings and problems. One common scenario is when one spouse feels underappreciated by the other. Take the time to listen to your partner and engage in constructive dialogue. If neither person is capable of having a civil conversation, it may be time to dissolve the marriage and file for divorce.

WHAT ARE YOUR EXPECTATIONS?

Nobody gets married with the goal of eventually getting divorced. Most couples go through a honeymoon period early in their marriage. During this time, life couldn’t be better. However, not everybody enters marriage with the same expectations. Some people have no clue how their partner expects them to behave. If your expectations are way beyond those of your partner, there are two options. You can either try to work out a compromise or may decide to go your separate ways.

CAN YOUR MARRIAGE BE SAVED?

When a marriage goes bad, it can seem overwhelming. Many people simply give up. But if you truly love your spouse, it may be worth trying to work things out. Take the time to write down a list of things you need to do to save the marriage. After the list is completed, write down what your spouse needs to do. Then ask your partner to make the same list.

IS YOUR LIFE BETTER WITHOUT YOUR PARTNER?

Marriages fall apart for different reasons. Some couples break up in less than one year. Others stay married for decades before finally calling quits. Regardless of how long you have been married, there is one fundamental question that needs to be asked. Would your life be better without your spouse? It’s not an easy question. No matter how many times you consult with a divorce attorney, only you can decide.

KEEPING YOUR COOL DURING DIVORCE

Every divorce has different circumstances, but the emotional toll of the process is something that will be felt by everyone. This can lead to tempers flaring, angry outbursts, feeling lost, depression or any number of strong feelings that may cloud your ability to keep a level head throughout the long and arduous litigation. It is very important that you don’t let raw emotion lead you into doing something rash that may hurt your side in court, and here are a few things to remember about keeping your composure at the toughest of times.

KEEP A POSITIVE OUTLOOK

A divorce is one the most stressful situations in a person’s life, and it can be very difficult to remain positive. Marriages require the mutual agreement of two people, but it only takes one to decide they want a divorce. This can be particularly hard if you were not the one to make this choice, and with all of the destructive stereotypes associated with divorce, it is easy to become bogged down in all of that negativity.

Maintaining an optimistic perspective may sound cliché, but it is key to getting through the process. It is important to remember that everyone has their faults and it is not singularly you or your spouse alone that caused the end of the marriage. Consider the divorce as a life lesson, not a synonym for failure, and know that it is possible to move forward with dignity and still find happiness.

Many feel like getting the divorce finalized as soon as possible, regardless of any long-term sacrifices they make in doing so, is the only way to move forward with their life. Focusing on the new and exciting aspects of getting a fresh start to life instead of dwelling on the past is one of the hardest, but most important steps in seeing things through a positive light.

THE SCAPEGOAT

During the divorce proceedings, it will often feel easier to roll over and agree with whatever terms the opposing party is putting forward instead of getting in a bitter argument over details that aren’t in your favor. This attitude can lead to blindly signing unfair terms, purely to avoid confrontation.
Most attorneys will have no problem being the “bad guy” particularly in the tougher aspects of the divorce, such as settlement negotiations. They are there to be an advocate for you and get the best arrangement possible, but they cannot do their job if you simply sign agreements to avoid hostility.

THERAPISTS FOR DIVORCE

Meeting regularly with a professional therapist can be a very beneficial way to help regain confidence and find a positive direction, despite the common societal view held by men that opening up about your emotions is an embarrassing sign of weakness.

While seeking a professional can be very beneficial for dealing with the stress and emotional toll of divorce, take into consideration that it can help or hurt your divorce proceedings depending on where you live. Therapists’ records are discoverable in some states, meaning they could be detrimental or embarrassing depending on what was discussed if they are brought up in court. Attorneys can also recommend seeking a professional counselor in situations where their client has been accused of emotional or psychological abuse to show the court they are working on the problem. Either way, it is probably best to ask your attorney’s advice before seeking out a therapist to ensure it doesn’t hurt your case.

Keeping cool during the divorce and maintaining an optimistic outlook is very important for getting through, and beyond, the proceedings. It may feel crushingly oppressive at times, but the world will continue to turn, there is still plenty to enjoy and much greater happiness to find. Keeping control of your emotions instead of giving in to reckless action will help you avoid unnecessary problems and have a better perspective after everything is over.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Friday, June 29, 2018

Rights of Divorced Spouses in the Military

Divorce can be a confusing, complicated, and stressful time for military couples. However, gaining a general understanding of how this process works, while seeking to identify the specific issues that may apply in your case, can greatly reduce the time, expense, and emotional strain of a divorce. While you will largely follow the same process and procedures as a civilian couple when filing for divorce, there are unique legal issues which may apply result of military service. These issues may include determining the custody of children, calculating child and spousal support, and determining if any post-divorce benefits apply.

Rights of Divorced Spouses in the Military

While divorce is largely governed by state law and local procedures, depending on where you file, there are certain federal statutes and military regulations which may be applicable to your divorce. Examples include the Uniformed Services Former Spouses’ Protection Act, which can affect how disposable military retired pay is divided between the service member and former spouse, as well as determining eligibility for continued medical, commissary, installation exchange, and other benefits.

Overview of Military Divorce

Generally, the military views divorce as a private civil matter to be addressed by a civilian court. Commanders rarely get involved in domestic situations except in limited cases, such as a claim by a dependent that he or she is being denied adequate financial support by the service member spouse. Even in such cases, a commander’s authority is limited, absent a civilian court order.

In a divorce or family law matter, a service member and dependent spouse will need separate legal assistance attorneys to advise them to ensure both parties receive independent, candid and confidential advice, and to be sure there is no conflict of interest in the representation of both parties. Communications between a client and a legal assistance attorney are private, confidential and are generally covered by the attorney-client privilege. While military legal assistance attorneys may not be able to draft specific court documents or represent members or their families in court, they can provide helpful advice on a range of legal issues including divorce and child custody, income taxes, the Servicemembers Civil Relief Act and wills.

For military divorce or legal separation situations that require representation in civil court or involve contested issues such as child custody, spousal/child support or division of assets like retirement pay, it is recommended that you consult with a civilian attorney who is knowledgeable of the divorce laws of your particular state and has extensive experience with military-related family law.

SERVICEMEMBERS CIVIL RELIEF ACT PROTECTIONS RELATED TO DIVORCE PROCEEDINGS

The Servicemembers Civil Relief Act helps protect service members’ legal rights when called to active duty. It applies to active-duty members of the regular forces, members of the National Guard when serving in an active-duty status under federal orders, members of the reserve called to active duty and members of the Armed Services, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in support of the armed forces.

In regard to divorce proceedings, service members may obtain a “stay” or postponement of a civil court or administrative proceedings if they can show their military service prevents them from either asserting or protecting a legal right such as an upcoming deployment. This is not an automatic right, and a military judge must find there good cause to do so, based on the justification provided by the military member.

Specifically, the courts will look to whether military service materially affected the service member’s ability to take or defend an action in court. If the service member submits a written communication to the court showing:

  • How military requirements materially affect the ability to appear
  • The date when the service member will be available to appear, and
  • Communication from the commanding officer stating that duty prevents appearance and leave is not authorized, the court must grant a stay of at least 90 days. Because some state courts have strict requirements of what specific information must be contained in this notice in order to grant a stay, service members should promptly consult with a legal assistance attorney if they intend to make such a request.

The Service members Civil Relief Act also provides certain protections for members regarding default judgments for failure to respond to a lawsuit or failure to appear at trial. Before a court can enter a default judgment against a military member, the person suing the member must provide the court with an affidavit stating the defendant is not in the military. If the defendant is in the military, the court will appoint an attorney to represent the defendant’s interests (usually by seeking a delay of proceedings). If a default judgment is entered against a service member, the judgment may be reopened if the member makes an application within 90 days after leaving active duty, shows he/she was prejudiced and shows he/she had a legal defense.

UNIFORMED SERVICES FORMER SPOUSE PROTECTION ACT BENEFITS RELATED TO DIVORCE PROCEEDINGS

The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. The benefits may affect receipt of retirement pay and medical care, as well as the use of the exchanges and commissaries. For detailed information about this act and how it may impact your divorce proceedings, please read the article Uniformed Services Former Spouse Protection Act for Divorced Spouses in the Military.

ELIGIBILITY FOR MILITARY BENEFITS

Whether you are entitled to commissary, exchange or medical benefits depends on the length of time you were married, the length of time your spouse served in the military and the number of years your marriage overlapped with his or her military service. To retain full military benefits and privileges upon divorce from a service member, you must meet the requirements of what is known as the “20/20/20 Rule.”

20/20/20 former spouse: An un-remarried former spouse receives medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program if:

  • He or she was married to the military member for at least 20 years at the time of the divorce, dissolution or annulment.
  • The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to actually be retired from active duty).
  • The former spouse was married to the member during at least 20 years of the member’s retirement-creditable service.

Therefore, if you were married for at least 20 years, and your former spouse performed at least 20 years of service creditable for retired pay, and there was at least a 20-year overlap of the marriage and the military service, you are entitled to full commissary, exchange and health care benefits after the divorce.

20/20/15 former spouse: In the event that you cannot qualify under the “20/20/20 Rule,” you may still be eligible to one year of transitional military benefits for purposes of military medical care only. Similarly, the 20/20/15 rule requires the former spouse to show three things:

  • The service member performed at least 20 years of creditable service.
  • The parties’ marriage lasted at least 20 years.
  • The period of the marriage overlapped the period of service by at least 15 years.

Should these requirements be met, the former spouse will be entitled to retain TRICARE medical coverage, but only for a transitional period of one year. Unlike a 20/20/20 former spouse, a 20/20/15 former spouse will not have access to the military exchange, installation privileges or commissary privileges.

EFFECT OF DIVORCE ON MILITARY BENEFITS

Unless you meet the strict requirements of the 20/20 Rule, you will not be eligible to continue using the commissaries and exchanges once your divorce, dissolution or annulment is finalized. Until your divorce is final you may retain your identification card and can continue to receive your commissary, exchange and health care benefits. Here are some additional issues for you to consider:

  • Installation housing.The service member does not have the authority to evict you; only the installation commander has that authority. By law, military family housing can only be occupied by service members who reside with their family members (with some exceptions). Each of the branches of service has regulations which require the family housing unit to be vacated usually within 30 days if the service member stops residing there or if there are no family members residing there. As a result, if you are separating from your spouse and you are not in the military, you and your family must vacate military family housing.
  • Health care benefits.If you are neither a 20/20/20 nor a 20/20/15 former spouse, you will not be entitled to any military health benefits after your divorce, dissolution or annulment is final. However, you can receive health care coverage through the DoD Continued Health Care Benefit Program, a premium-based temporary health care coverage program, for 36 months of coverage until alternative coverage can be obtained.
  • Spousal and Child Support.Each of the military services has policies requiring service members to support family members upon separation in the absence of an agreement or court order. Please note these policies are designed to be temporary measures and that a commander’s authority is limited without a court order. In order to receive alimony or child support you must specifically request that a civilian court do so. Additionally, you must send Defense Finance and Accounting Service an order from a court or child support enforcement agency that directs the government to pay monies for support or alimony.
  • State courts with jurisdiction over dependent children or a state agency with the proper authority can order child support payments. Alimony payments can also be ordered by the court and satisfied through a garnishment order submitted to DFAS. The allotment will go into effect 30 days after the notice was sent to the military member by DFAS. You must obtain the garnishment order from a state court over the military member and provide it to DFAS.
  • Child supportcan additionally be secured through what is known as a statutory allotment. Statutory allotments are initiated by a complainant parent, state agency, or private attorney, who can establish a support obligation greater or equal to two months.

If you are living overseas when your marriage is terminated by divorce or annulment, you and your children (as well as your possessions) may be able to return to the United States (or your country of origin if you are foreign nationals) at the government’s expense. Service members permanently stationed outside the United States may request early return of dependents, authorizing the return of command-sponsored family members and their household goods before the service member’s tour ends.

Free Consultation with a Military Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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What Is a Trust Account?

What Is a Trust Account

If you own a house you’re likely familiar with what a trust account is. Your mortgage lender probably set one up for you when you purchased your home. The lender uses this account to pay your property taxes and insurance on your behalf. This type of trust account is known as an escrow account.

A trust account is also an important estate planning tool. When you create a trust, you transfer legal ownership of your property or assets to a trustee who is the person or institution responsible for handling the property. This property is held for the benefit of a third party, known as the beneficiary.

When you create a trust, it doesn’t have any power until you transfer money or other assets into the trust account. Typically, a bank or other financial institution acts as custodian or holder of the trust assets by placing them into a trust account in the name of the trust. All expenses and distributions to the beneficiary must be made from this account.

Setting Up a Trust Account

Your trust is just a stack of paper until you fund your trust account. There are several steps to properly setting up a trust account, including:

  1. Select the Type of Trust

Your first decision is to select the type of trust that works best for you. A trust can be created during life (inter vivos) or after you pass away (testamentary). A trust can be revocable during your lifetime or irrevocable. You may wish to provide for a loved-one who can’t care for themselves with a special needs trust. The type of trust you chose will determine the form of trust account you must open.

  1. Appoint a Trustee

A trustee is the person who manages your trust assets and executes the terms of the trust. Any mentally competent adult may be named a trustee. Although you can serve as the trustee, remember to designate an alternate trustee for when you die or become incapacitated. A trust department in a bank or a law firm can serve commonly serve as trustees. If you select an individual to serve as your trustee, make sure that person understands the nature of the trust and their duties before they agree to serve.

  1. Assets

You must determine which of your assets you want to place in the trust. Assets such as cars, real estate, stock and bank accounts have legal title that must be changed to the name of the trustee. (Remember the trustee has legal ownership of the trust property.) Some assets such as art and jewelry don’t carry a legal title. In these instances, you must transfer your right to the property to the trustee. Be certain the trust documents state the specific powers the trustee has over the trust assets.

  1. Draft and File Documents

The laws of your state will determine the types of trusts that are available to you, and how your trust should be written. Be sure to sign and notarize your documents. In some regions, you are required to file your trust documents with the state.

  1. Go to the Bank

The trust documents will give the bank instruction on how to set up the trust account including a name and trustee designation, such as “trustee for the benefit of …” to indicate the individual or organization for whom the trustee is handling the assets.

Free Consultation with a Utah Trust Lawyer

If you are here, you probably have an estate or trust law issue in Utah you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Thursday, June 28, 2018

Payable on Death Beneficiary for Accounts

Planning your estate doesn’t have to be expensive or complicated. You can transform your bank accounts into an estate planning tool by designating a beneficiary for your checking, savings and other deposit accounts. Simply ask your banker for their payable on death (POD) beneficiary form.

Payable on Death Beneficiary for Accounts

POD accounts function like an informal trust. Some banks even refer to these accounts a Totten or tentative trusts. After your death, the account beneficiary avoids probate and can claim the money directly from your bank. During your lifetime, the beneficiaries have no rights to the account. You can spend the money, close the account or change your beneficiaries. The account will function just as it did before you listed a beneficiary.

Who Can be Your Beneficiary

The beneficiary rules for POD accounts are very flexible. You can choose to have one beneficiary for several accounts or multiple beneficiaries for one account. Nonprofit organizations can serve as your beneficiary. Just be certain they are recognized as a charitable entity by the Internal Revenue Service. Depending on the laws of your state, you may be able to designate an alternate beneficiary, in case your first named beneficiary dies before you. If there are no living beneficiaries at the time of your death, the account will pass through probate.

What Accounts Can Have a Beneficiary

You can name a POD beneficiary for your checking and savings accounts, money markets, CDs and U.S. Savings Bonds. But you will probably need to complete a beneficiary registration form for each account. Joint accounts, such as held by a married couple, can also be transferred into POD account. The beneficiary will only receive rights to the assets after the last account owner dies.

Stocks and other securities can be transferred by setting up transfer on death (TOD) registration on the account. Most states have adopted the Uniform TOD Security Registration Act, but brokerage firms can still choose not to offer TOD registration.

How Do You Claim A POD Account?

Claiming a POD account is a straightforward process. The beneficiary goes to the bank or credit union holding the account and presents a copy of your death certificate. They will also need to show valid identification and fill out transfer forms. Some states have a short waiting period, but otherwise the beneficiary can claim the funds immediately.

TOD beneficiaries must take steps to re-register the securities in their names. This typically involves sending a copy of the death certificate and an application for re-registration to the transfer agent

Be aware, POD accounts are subject to outside claims. So you can’t use a POD account to avoid paying your debts or to disinherit a spouse. You must leave enough money in your estate to tie-up your affairs. Plus if you live in a community property state, your spouse has a right to half of your assets, including those only listed in your name.

Tax Issues with POD Accounts

After you die, estate or income taxes may be left owing. For example, if you are working at the time of your death, your estate administrator will file your last tax return. It is important that your will or living trust state if the POD account beneficiary is required to use funds to cover any tax liability.

Your beneficiary may also be subject to an inheritance tax depending on the laws of your state, and you family relationship. In most states, surviving spouses are exempt from inheritance tax. But unrelated individuals are frequently taxed on an inheritance.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wednesday, June 27, 2018

Mistakes When Making a Will

Making a last will and testament is a very wise decision. It tells your surviving loved ones exactly what your wishes are regarding your property and assets. When it comes to estate planning however, there are some things that you can’t or shouldn’t include in your will.

Mistakes When Making a Will

Types of property you can’t include when making a will

Some types of property carry rules that govern what happens after you die. These rules are independent of your will, mostly because the nature of these types of properties is to name a beneficiary or avoid probate.

  • Joint tenancy property. This type of property grants the right of survivorship to your joint tenant, automatically by law. Therefore, when you die, your share of the property passes directly to the surviving joint tenant, regardless of what your will says.
  • Property in a living trust. One of the ways to avoid probate is to set up a living trust. The property included in a living trust avoids probate; whereas property in your will does not. Additionally, willing property to someone in your will when that property is already delegated to someone by a living trust is inconsistent. The property in the living trust automatically goes to the beneficiaries and is managed by the trustee. If you want to change this arrangement, you must do it through the trust forms and documents and not through your will.
  • Life insurance proceeds that have a beneficiary. In this case, like with the trust, the proceeds automatically go to the beneficiary.
  • Retirement plan proceeds, including money from a pension, IRA, or 401(k). The forms for these plans contain a section for you to include your desired beneficiary.
  • Stocks and bonds held in beneficiary. This is yet another type of property that automatically goes to your named beneficiary. Talk to the brokerage company if you wish to change the named beneficiary.
  • Proceeds from a payable-on-death bank account. The form for this account asks you to name your beneficiary. To change the beneficiary, you just fill out another form with your bank.

Avoid leaving funeral instructions when making a will

Usually, the settling of the estate and the probate proceedings do not happen until after the funeral. The funeral arrangements are among the first matters of business after someone dies. Therefore, people may not even notice your funeral wishes stated in your will until after the funeral. Instead of leaving your funeral wishes in your will, talk with your loved ones about what you want. You can even make a separate document that spells out your wishes for the funeral, and give this document to the executor or executrix of your estate.

Avoid using a will to escape estate taxes

A will is still subject to estate taxes. Instead of trying to use a will to avoid the often heavy estate taxes, explore different types of trusts that may work for your situation. Trusts escape a lot of tax subjection, because the property is not passing directly to the beneficiary, rather to the trust account, over which the beneficiary does not have complete control.

Wills do not escape probate

A common misconception is that wills do not have to go through probate proceedings. This is not true. Wills are still subject to probate proceedings. Probate proceedings can take months. However, having a will does help to speed up the probate process, because your loved ones, lawyers, and the probate court are not left having to divide all of your property for you. You have already explained how it should be divided, and the court will follow your wishes. There are other ways you can avoid probate. One common way is leaving the property to a trust fund, with the desired recipient a beneficiary, instead of granting the property directly to that person.

Be careful with what conditions you put on gifts

Not all of those conditions are legal. Conditions that include marriage, divorce, or the change of the recipient’s religion cannot be provisions in a legal will. Therefore, a court will not enforce them. You can put certain other types of conditions on gifts. Usually, these types of conditions are to encourage someone to do or not do something. For example, when making a will, you could say, “to Allison, if and when she graduates from college.” You could also say something like, “to Paul, so long as he uses the property as an art studio.” Just keep in mind that putting conditions on gifts can complicate things. Think about who will actually enforce these conditions, for how long, and does the enforcer get anything like an executor’s fee?

Avoid leaving gifts or money for illegal purposes

Although this is uncommon, some people will try and sneak in some sort of illegal condition or purpose for the gift. This would not make your will a legal will. For example, you wouldn’t be able to include, “to Mary, so long as she uses the property to grow marijuana,” or “To Jane, so long as she has her first beer before she is 21 years old.”

Do not arrange care for a special needs person when making a will

Although it is very possible to arrange such special needs for a disabled person, a will is not the place in which to do it. You need to to a trust. There are certain types of trusts, such as a special needs trust, that specifically address the management of the specific special needs of a disabled person.

Avoid leaving gifts to pets in a will

Animals do not have the legal capacity to own property. What many people do instead is they leave the pet with someone who they know will provide it with good care. You can also leave that person any property or money to help out with the care of the pet. Certain states do allow for trusts with an animal as the beneficiary. If this makes you more comfortable, check to see what your state’s laws are. However, as long as you believe in the person you are leaving your pet with, you probably do not need a pet trust fund.

Free Consultation with a Utah Will Lawyer

You need need your will drawn up, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, June 26, 2018

Overview of Trusts

Overview of Trusts

Trusts are estate-planning tools that can replace or supplement wills, as well as help manage property during life. A trust manages the distribution of a person’s property by transferring its benefits and obligations to different people. There are many reasons to create a trust, making this property distribution technique a popular choice for many people when creating an estate plan.

Creation of a Trust

The basics of trust creation are fairly simple. To create a trust, the property owner (called the “trustor,” “grantor,” or “settlor”) transfers legal ownership to a person or institution (called the “trustee”) to manage that property for the benefit of another person (called the “beneficiary”). The trustee often receives compensation for his or her management role. Trusts create a “fiduciary” relationship running from the trustee to the beneficiary, meaning that the trustee must act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee does not live up to this duty, then the trustee is legally accountable to the beneficiary for any damage to his or her interests.

The grantor may act as the trustee himself or herself, and retain ownership instead of transferring the property, but he or she still must act in a fiduciary capacity. A grantor may also name himself or herself as one of the beneficiaries of the trust. In any trust arrangement, however, the trust cannot become effective until the grantor transfers the property to the trustee.

Example: A grantor transfers money to a bank as trustee for the grantor’s children, with the bank instructed to pay the children’s college expenses as needed; the bank carefully manages the money to ensure there are funds available for this purpose. The children do not have control of the funds and cannot use the funds for any other purposes.

Testamentary and Living Trusts

Trusts fall into two broad categories, “testamentary trusts” and “living trusts.” A testamentary trust transfers property into the trust only after the death of the grantor. Because a trust allows the grantor to specify conditions for receipt of benefits, as well as to spread payment of benefits over a period of time instead of making a single gift, many people prefer to include a trust in their wills to reinforce their preferences and goals after death. The testamentary trust is not automatically created at death but is commonly specified in a will and so as a will provision, the trust property must go through probate prior to commencement of the trust.

Example: A parent specifies in her will that upon her death her assets should be transferred to a trustee. The trustee manages the assets for the benefit of her children until they reach an age when the parent believes they will be ready to control the assets on their own.

A living trust, also sometimes called an “inter vivos” trust, starts during the life of the grantor, but may be designed to continue after his or her death. This type of trust may help avoid probate if all assets subject to probate are transferred into the trust prior to death. A living trust may be “revocable” or “irrevocable.” The grantor of a revocable living trust can change or revoke the terms of the trust any time after the trust commences. The grantor of an irrevocable trust, on the other hand, permanently relinquishes the right to make changes after the trust is created. A revocable trust typically acts as a supplement to a will, or as a way to name a person to manage the grantor’s affairs should he or she become incapacitated. Even a revocable living trust usually specifies that it is irrevocable at the death of the grantor.

Transferring Assets

Irrevocable trusts transfer assets before death and thus avoid probate. However, revocable trusts are more popular as a means of avoiding the probate process. If a person transfers all of his assets to a revocable trust, he owns no assets at his death. Therefore, his assets do not have to be transferred through the probate process. Even though the grantor of the trust died, the trust did not die, so the trust assets do not have to be probated. However, trusts avoid probate only if all or most of the deceased person’s assets had been transferred to the trust while the person was alive. To allow for the possibility that some assets were not transferred, most revocable living trusts are accompanied by a “pour-over” will, which specifies that at death, all assets not owned by the trustee should be transferred to the trustee of the trust.

Example: Mark sets up a revocable trust, which states that on his death, his assets should be distributed to his children in equal shares. Mark transfers his house to the trust, but does not transfer some rental real estate he owns. At Mark’s death, the trust can distribute the house outside of the probate process, but the rental real estate will have to be probated. Based on the will, the probate court will order the rental real estate be transferred to the trustee, who will then distribute it according to the terms of the trust.

Successor Trustees

Although a grantor may name himself as trustee of a living trust during his lifetime, he should name a successor trustee to act when he is disabled or deceased. At the grantor’s death, the successor trustee must distribute the assets of the trust in accordance with the directions in the trust document. In many states, certain people must be notified at the death of the grantor.

Free Consultation with a Utah Trust Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, June 25, 2018

Asset Division in Divorce

It’s time to delve a bit deeper and discuss some of the financial nuances you may encounter as the division of separate and marital property proceeds during your divorce. For example, it’s likely your case will involve assets that have appreciated in value during the course of your marriage. Here’s the issue:

Asset Division in Divorce

In many states, if your separately owned property increases in value during the marriage, that increase in value may be considered marital property. What’s more, the division of this particular subset of marital property can be further complicated by the differentiation between active and passive appreciation of the assets.

Did the Asset Appreciate?

Let’s take this step-by-step.

First, understand that an asset can increase in value in one of two ways.  An asset can either

  • Actively  appreciate –as a result of actions by the owner of the asset  . . . or it can
  • Passively appreciate –as a result of changes in the market.

While there are many complex rules that govern division of property and asset appreciation, here are a few fundamentals, in very general terms:

In community property states, where both spouses are typically considered equal owners of all marital property, the division of appreciated assets is often computed based on a series of formulas. The calculations can prove enormously complex, but here’s a short summary of the most salient points by David M. Wildstein, Esq. in his brief, Allocating Active and Passive Appreciation of a Separate Business Asset for Equitable Distribution:

“If the increase in a separate asset is passive, it is not a part of the community estate as long as no community resources were used for the asset. If the asset increases due to the effort of either party, it is part of the community. The time, toil and talent of each spouse is perceived to be a community asset. To reach a fair result, community property law created the doctrine of reimbursement: ‘The fundamental purpose of the doctrine is to bring back into the community estate value which was created by community contributions, but which took the form of appreciation in the value of a separate asset.’”

Utah is an Equitable Distribution State

In equitable distribution states, it’s not as “straightforward” because none of the equitable distribution states use a formulaic approach as described above for community property states. In equitable distribution states, passive appreciation on separate property remains separate property.  But, active appreciation on separate property can be considered marital property.

What can qualify as active appreciation on separate property? That’s a very good question, and courts often struggle to make this determination. Typically, the judge will use a three-pronged test to evaluate active appreciation in separate property.  The judge must find that:

  1. The separate property did, indeed, appreciate during the marriage.
  2. The parties directly or indirectly contributed to the appreciation.
  3.  The appreciation was caused, at least in part, by the contributions.

Of course, as with other aspects of divorce proceedings, the rules governing the determination of asset appreciation can vary from state to state.  In some states the burden of proof is on the spouse who claims the appreciation is passive. In other states, it’s the reverse –the burden of proof rests on the spouse who claims the appreciation is active.

Clearly, asset appreciation is a complicated topic that demands thorough and thoughtful consideration.  It’s essential that you seek guidance from a qualified divorce team concerning the particular circumstances of your individual case.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Sunday, June 24, 2018

How to Divorce-Proof Your Business

It can happen to the best of entrepreneurs. While a new business owner is putting in long hours to build a business, a marriage can fray. The next thing the owner knows, his or her spouse may be filing for divorce.

This scenario is all too common. Forty percent to 50 percent of all first marriages in the U.S. end in divorce, according to a 2010 report by the National Marriage Project at the University of Virginia. The divorce rate for second marriages is even higher.

How to Divorce-Proof Your Business

For those whose marriage is in trouble or who are about to begin a divorce, a few strategies can help preserve a business. Once the divorce proceedings start, entrepreneurs won’t likely be able to implement some other legal maneuvers that, if accomplished in happier times, could keep their business from landing in a soon-to-be ex’s possession.

Businesses Can Be Destroyed By Divorce

If you’re not careful in a divorce, you could find your ex is your business partner — or you could be fighting to keep your enterprise from being sold to raise cash.

Or you might lose the business to your ex. That’s what happened to Tereson Dupuy, founder of FuzziBunz, an online cloth-diaper business based in Lafayette, La.

Dupuy launched the company three years into her marriage after seeking better diapering options for her second child. But in 2005, close to the couple’s 10-year anniversary, the marriage unraveled. Dupuy discovered FuzziBunz would be considered a joint marital asset. Louisiana is one of a handful “community property” states, including California, which assume each divorcing spouse owns half the property accumulated during the marriage.

Dupuy says the stress of the divorce drove her into a nervous collapse and within 24 hours a judge put her husband in control of the company.

It took Dupuy a year and a large lump-sum payment to her ex — plus $15,000-a-month payments to her ex over many years — to regain ownership. The payments drained cash, and bankers considered her need to pay them outstanding debt, making it hard for her to borrow needed growth capital.

Is your marriage headed toward a divorce?

Here are seven strategies to consider if a divorce is threatened or already underway and your company is considered a joint asset.

  1. Keep the family’s finances separate from those of the business. “Don’t borrow out of the house [account] to buy company trucks,” Kornitzer says.
  2. Pay yourself a good salary. If you starve the family’s cash flow to build the business, a lawyer might later make the case that your ex is entitled to more of the company’s assets.
  3. Fire your spouse. If your spouse is actively involved in your business, ease him or her out as soon as possible, says divorce lawyer Daniel Clement, principal of New York City family law firm Clement Law. The more prominent the ex’s role and the longer he or she worked in the business, the stronger the case a lawyer could make that this spouse helped build the enterprise and should profit from its growth.
  4. Sacrifice other assets. In a divorce settlement, a couple’s total assets are added up and then divided. Try to retain 100 percent ownership of the business by forfeiting other assets instead, such as retirement accounts, the family’s home, vehicles or collectibles, Clement says.
  5. Get a fair valuation. Use a neutral, court-appointed valuation professional and then arrange for another outside party to review the figure before you agree to it, Clement says. Dupuy wishes she had challenged FuzziBunz’s valuation, which was based on a projection of 10 years of future growth rather than current revenue, she says.
  6. Arrange to make any payments over time. It’s common to pay an ex for a share of a business gradually, as Dupuy did. The monthly payments can come from the business’s cash flow or a bank loan.
  7. Raise capital by selling a stake. You could sell a minority stake in your business to employees through an employee stock ownership plan, Landers says. Or find an angel investor or two who will pay cash in exchange for an ownership stake.

One bright spot for entrepreneurs: It’s rare that a business ends up being sold off to satisfy a divorce settlement, Clement reports. That’s because it would deprive the business owner of the future income needed to pay support payments.

Preventive Moves To Protect Your Business in Divorce

Take action while your relationship is still rosy and you may greatly increase your odds of surviving a divorce with your business intact.

 

Here are five pre-emptive strategies that can help protect you from losing your business in a divorce.

 

  1. Sign a prenup. If your business existed before you wed, designate it as separate property owned by only you.

 

  1. Secure an early postnup. This is much like a prenup, except the agreement is signed after the wedding. If a postnup is done long before the marriage disintegrates — ideally more than seven years before a breakup – it might be useful in defining a business as separate property. But judges often view postnups skeptically.

 

  1. Place the business in a trust. This keeps the business from being counted as a marital asset as you no longer personally own it. The move also protects the value of the company’s growth.

 

  1. Create a buy-sell agreement. It defines what happens to a business should any owner’s status change, as is the case in a divorce. The agreement might limit a spouse’s ability to acquire ownership, deprive a divorcing spouse of voting rights, or give you or other partners the right to buy at a low, preset price any interest awarded the ex.

 

  1. Have insurance. A whole-life insurance policy that builds cash value can be liquidated to provide the funds to buy out a spouse’s share of the business, if need be.

Free Consultation with a Divorce Lawyer in Utah that Can Protect Your Business

If you have a question about divorce law and how to protect your business in a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Saturday, June 23, 2018

Filing for Divorce While Living Abroad

Although this article provides a basic overview of international divorce, we are by no means suggesting you should handle a foreign divorce on your own. Transnational divorce is a complex and a fairly new field of the law. You should speak with an experienced family law attorney who can guide you through this process and ensure your divorce is valid.

Filing for Divorce While Living Abroad

When the Filing Spouse Lives Overseas

Filing for a divorce while living abroad often presents complex legal questions. First of all, you may need to abide by local law in order to get a divorce. If so, you should contact the U.S. Embassy or Consulate in your area to obtain a list of local attorneys that can help you get the divorce process started.

Check the U.S. Department of State’s website for a list of all U.S. Embassies, Consulates and Diplomatic Missions and a link to their websites.

Will the United States recognize a foreign divorce decree?

The short answer is yes, but only to a certain extent and not in all circumstances. Most states recognize divorce decrees from foreign countries as long as the foreign country ensures certain procedural requirements have been met (such as proper notice to the parties). To find out if a foreign divorce decree is considered valid or is recognized in your state, contact your state’s Attorney General. You could also contact an experienced family law attorney in your area.

Although a United States court is likely to recognize a foreign divorce decree as having terminated your status of being “married,” foreign divorce orders may not be effective for dealing with all of the issues in your divorce. For example, if your children are U.S. citizens residing in the United States and you file for divorce while living abroad, the foreign court is not likely to issue orders regarding custody of the children, because it will not have jurisdiction (authority) to make child custody orders over U.S. citizens living in the United States. And, even if the foreign court issues orders that purport to deal with the custody of your minor children, a United States court is not required to honor such foreign custody orders. The United States court (the local state court) will have jurisdiction over the children and will issue its own custody orders.

Finally, a foreign divorce decree may not be effective to divide property, such as retirement benefits, located in the United States.

When the Filing Spouse Lives in the United States

If you are living in the United States and want to file for divorce from a spouse that’s living abroad, you’ll want to talk to an experienced attorney who can guide you through the process and make sure you are taking all necessary steps.

First, you’ll need to file a petition (paperwork) for divorce in your local court, and make sure you meet state and local residency requirements. You’ll also need to have a copy of the divorce petition and a summons “served” (meaning personally delivered) on your spouse, unless your spouse agrees to waive (forgo) the process requirements. If your spouse agrees to waive personal service of process, then he or she can sign an affidavit stating they have been served, and you can file that with the local court and move on to the next phase of the divorce.

If not, and your spouse insists on service of process or tries to avoid service, things will be more complicated. You may need to comply with the laws regarding service of process for the foreign country where your spouse lives. If the country where your spouse lives is a member of the Hague Service Convention, it will govern the international service of process. If not, you’ll have to figure out how service can be completed. In some countries, you may serve the summons by a letter request or “Letters Rogatory,” while in others you must have the paperwork served on a central government authority or an overseas agent who will then guarantee delivery of the papers on your spouse. In all cases, you’ll probably want to speak with an attorney here in the United States and an attorney in the foreign country who can make sure service is being handled correctly on that end.

Next, the local state court will need to determine if it has jurisdiction (authority) to make orders over your spouse. This will depend, at least in part, on the extent of your spouse’s contacts with the state. Whether or not the local state court can issue orders over your spouse in the divorce proceeding will also depend on a variety of other factors, including whether or not you seek orders regarding custody of the children or division of property. Your attorney(s) will need to perform a careful analysis of the facts of your case and the laws regarding your spouse’s country of residence.

Overseas Divorce in the Military

The divorce process for U.S. military spouses can be a bit trickier than civilian matters, as the U.S. military has its own codes and processes that govern divorce-related matters. In this situation, you should consult a lawyer with experience in military divorce to ensure that the filing, processing, and serving of divorce papers are all handled correctly.

Free Consultation with a Utah Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Friday, June 22, 2018

AB Trusts

AB Trusts

Normally, when one spouse dies passing on his/her assets in a last will and testament, the estate will be taxed heavily before the beneficiaries receive it. To avoid this steep estate tax, spouses can set up an AB trust, where each spouse leaves their property to an irrevocable trust. When it comes to estate planning, an AB trust is a trust created by married couples to maximize their federal estate tax exemptions. A lot of people believe that AB trusts only benefit those with large estates. The truth is anyone who may owe estate tax can benefit from an AB trust.

 How the AB Trust System Works

When the first spouse dies, the beneficiaries (usually the couple’s children) named in the trust receive that spouse’s property. However, this irrevocable trust is to be used for the benefit of the surviving spouse, who does not technically own the property. There is a crucial condition that the property can be used by the surviving spouse and that the surviving spouse may even spend principal in certain instances. Once the surviving spouse dies, all the property rights and benefits of the irrevocable trust pass to the surviving beneficiaries of the trust. Because the surviving spouse does not own the property, it is not subject to estate tax. Setting up an AB trust this way keeps the portion of the surviving spouse’s estate that is taxable half of what it would be without an AB trust.

Surviving Spouse’s Rights Over the Assets

As mentioned, the AB trust is left with the condition that it is to benefit the surviving spouse. This gives the surviving spouse some power over the assets, depending on the provisions of the trust. This is a part of probate law that some people struggle with.

The surviving spouse’s rights and benefits include receiving all income from the trust property, including:

  • Interest
  • Using the property
  • Spending to benefit his or her health, support and maintenance, standard of living, and education

The surviving spouse maintains these rights until her death, at which time all of the property is distributed to the beneficiaries of the original trust, and all of the surviving spouse’s property is distributed to his or her beneficiaries.

Disadvantages of an AB trust

The AB trust is irrevocable. Once one spouse dies, there cannot be any changes made to the trust. This can create some issues and has even caused friction between the surviving spouse and the named beneficiaries of the trust. As mentioned, the surviving spouse’s rights to use the property are limited. Where at one time this used to be the property he or she shared with his or her spouse, to do with as they pleased, this property is now restricted to certain uses and rights.

Settling and distributing property in an AB trust can be expensive and often requires a lawyer and accountant. Furthermore, these tax laws are always changing. You’ll need to keep current, or hire a professional to keep you current, on these changes and what they mean for you and your trust. These changes may even encourage you to change or even revoke your trust.

There is a lot of paperwork and bookkeeping required in an AB trust. The surviving spouse needs a tax ID number for the irrevocable trust and must file annual income tax returns on the trust. He or she must also keep records of all the AB trust property.

Is an AB trust is Right for You?

An AB trust is best suited for those married couples who are both over the age of 60 and do not have children from previous marriages. Often times when there are children from previous marriages conflicts arise between the surviving spouse and the deceased spouse’s children about who should share in the assets. If you think an AB trust might be for you or you have more questions, you should consult an attorney who can advise you based on your specific circumstances and your specific needs.

Free Consultation with a Utah Estate Planning Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Thursday, June 21, 2018

Child Visitation

Biological parents have a right to seek child visitation or child custody. This is true regardless of whether the child’s parents were married when the child was born. Like other child custody decisions, courts use the best interest of the child to decide disputed child visitation or custody cases involving unmarried fathers. Unless evidence indicates otherwise, courts making child visitation decisions presume that involvement of both parents benefits the child.

Child Visitation

You Need to Establish Paternity if You’re Not Married

Fathers who were not married when their child was born must legally establish paternity in order to gain access to father’s rights. Often, this simply means both parents signing and filing an acknowledgment of paternity with the appropriate state agency or court, either at the time of the child’s birth or afterward. In disputed paternity cases, a legal process including DNA testing will conclude with a court order stating whether the man in question is the child’s biological father.

Once paternity is established, a father may pursue child visitation or other child custody rights. Many states offer simultaneous filing for recognition of paternity and for visitation or custody rights.

Child Visitation and Child Custody Agreements

Either before or after a legal process has begun, many parents negotiate a parenting agreement (also called a parenting plan). A parenting agreement can include a wide variety of details including which parent will have primary custody, specifics on the other parents visitation periods, particulars on which parent will make decisions regarding the child’s education, health care or religion, as well as procedures for the handling of potential changes to the arrangement.

Court Orders on Child Visitation or Custody

Either after securing a parenting agreement, or if unable to agree, either parent may petition the court for child visitation or custody help. Parents who can agree to a parenting plan may file it with a court, asking the judge to approve and incorporate it into a court order on visitation and/or custody. Having the agreement become part of a court order allows either parent a direct way to enforce his or her parental rights.

If the parents cannot agree on visitation or custody arrangements, either one may ask the court to grant his or her request through a contested hearing. Courts deciding visitation and other custody issues focus on the best interest of the child. Generally, courts presume that children benefits from having both parents involved in their upbringing. This presumption can be overcome if one parent can show that visitation or custody by the other parent would likely cause harm to the child. For example, evidence of domestic violence or drug problems could be used to argue against a parent having custody or visitation with a child.

It is rare for fathers to win sole custody of a child already being raised by the mother. To do so, an unmarried father would likely need to show that the mother is unfit to raise the child and/or that he has been the child’s primary caregiver. Child visitation or shared custody rights, however, allow many unmarried fathers to play a consistent role in their children’s’ lives.

Should arrangements need to change, the court can modify the child visitation or custody order, either after both parents agree to the change, or after one parent petitions the court to make the change. Some states allow parents to agree on modification to visitation arrangements without a courts approval, however, a modified updated court orders allow easier enforcement of agreed arrangements.

Get a Free Evaluation of Your Child Custody and Child Visitation Concerns

Each state has their own laws surrounding child custody, child visitation, and the role of unmarried fathers. In Utah, the quicker you act the better off you are. While unmarried fathers do have parental rights, understanding the boundaries and limitations of those rights is important moving forward. You should
contact a Utah child custody lawyer right away to protect your rights or you will lose your rights. A local family law attorney with experience in these matters can help you avoid problems and give you peace of mind. Get started today with a free legal evaluation of your case.

Free Consultation with a Utah Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Divorce Bountiful

First things you need to make sure is that you must meet your state’s residency requirements before you file your petition (formal written ...