Tuesday, July 31, 2018

Child Support

Child support is mandatory in any divorce involving minor children. Petitioners with minor children must include an order for child support, even if the other parent is unemployed or cannot be found.

Child Support in Divorce

Most state laws have guidelines to determine child support payments. The payment amount is based on each parent’s income and the amount of time he or she spends with the children. The guidelines also provide for add-on amounts for the following expenses:

  • Child care
  • Health care and health insurance
  • Special educational or other needs
  • Travel-related visitation

Parents can increase or decrease the guideline amount if the following conditions are met:

  1. Both parents acknowledge they are fully informed of their rights under state law and the amount of child support is mutually agreed on,
  2. Both parents declare the agreed upon amount is in the children’s best interests and will adequately meet their needs, and
  3. For welfare recipients, the right to support has not been assigned to the county, and neither parent has a public assistance application pending.

Keep in mind that the judges presiding over divorces are the ultimate authority on child support decisions. They can deviate from the guidelines as they see fit.

Child support orders can be modified at any time. Special circumstances or income changes are just two reasons to revisit child support payments. The parties can agree in writing to the changed amount or can file a motion with the court. After the divorce is finalized, you should consult an attorney to change the amount.

Any order for child support payments typically includes an order for the assignment of wages. Child support payments usually begin when the judgment dissolving the marriage will be signed by the court, even though the parties will not legally be divorced until after the waiting period. If the judgment is delayed, you can file an application with the court to rush the payment of child support. You should seek an attorney if this is the case.

If a parent does not pay child support or is significantly late, he or she can be sued for contempt of court, have wages or tax refunds attached, or have his or her driver’s license blocked. These actions should be handled by an experienced attorney.

Tax Implications of a Divorce

Divorce can be challenging, particularly when it comes to tax time. Which spouse owes taxes? What forms and returns need to be filed? When do I need to file? How do I file? What is the best tax planning strategy for my divorce?

Tax Filing Status

A taxpayer will be considered unmarried at the end of a tax year if his/her spouse is legally separated from the taxpayer under divorce decree or separate maintenance contract at the close of the tax year.

A married taxpayer will be considered unmarried and eligible for head of household status if the taxpayer’s spouse was not a member of the household for the last six months of the year and the household is the home of a dependent child.

Liability on Joint Return

You may request relief from liability for tax, plus related penalties and interests for which you believe that your spouse (or former spouse) should be liable.

Innocent Spouse Relief is available if you: (1) filed a joint return and (2) are no longer married to (or are legally separated from) the spouse with whom the joint return was filed.

Dependency Exemptions 

In general, the dependency exemption for children of divorced taxpayers will go to the parent who has custody of the child for the greater part of the calendar year.

Alimony and Spousal Support 

In general, alimony and separate maintenance payments are income to the recipient and are deductible by the payer. Different rules apply to alimony that went into effect prior to 1985.

If you have specific questions about the tax implications of a divorce, you should speak to a licensed tax expert.

Free Consultation with Child Support Lawyer

If you have a question about child support 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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Investment in Foreign Real Estate Lawyer

Investment in Foreign Real Estate Lawyer

The term “global marketplace” has never been more descriptive-particularly when it comes to real estate. There are numerous reasons why many of our clients invest in property overseas, including asset protection, portfolio diversification, retirement planning, privacy, and tax savings. Real estate is not only a very stable investment in many foreign countries, it is also harder for U.S. creditors to attach than domestic property.

If you own real estate abroad, the tax forms and reporting requirements are dependent on your operation of the property and any foreign entities that may be used to hold title of the property.

If you own the foreign real estate directly as an individual, the U.S. income tax rules with respect to that property are almost the same as if the property were located in the USA. On your U.S. tax return you would depreciate the property and follow the same rules with respect to income and expenses as you would on property in the United States. Foreign property taxes are deductible, as are travel costs connected with managing investment properties overseas. You can also exclude up to $250,000 ($500,000 if married) in capital gains if you sell an overseas property that served as your primary residence for at least two out of the last five years.

If your foreign real estate is a rental property, the rental income and expenses must be reported on your Form 1040 using schedule E. In this case, your foreign rental property is basically treated the same way as domestic property, except that depreciation must be made over 40 years instead of the usual 271/2.

There are, however, special rules regarding the reporting of rental income from overseas real estate. You don’t have to report rental income if your property was rented out for less than 14 days during the year, or if it was used for personal reasons for more than 14 days or 10% of the days it was rented out. You can deduct mortgage interest, property taxes, and travel costs, but there is no deduction for rental expenses and losses.

Generally speaking, if you own real estate outside of the U.S., you’re more than likely to have one or more bank accounts in that country whether to pay expenses or possibly collect rent. This must be disclosed on Form 1040, Schedule B. If the foreign bank account(s) contains $10,000 or more on any given day of the calendar year you will need to file an FBAR (Form 114 Report of Foreign Bank Accounts) with the Financial Crimes Enforcement Network [FINCEN] annually before July 1. Failure to do so risks penalties beginning at $10,000 and potential criminal indictment.

If the property is held by a foreign corporation with 10% or more U.S. ownership, a foreign partnership or LLC, or a foreign trust or estate you will need to report that ownership on one of a number of IRS forms including Form 5471 (ownership inside a foreign corporation), and Form 8938 – Statement of Specified Foreign Financial Assets. These new filling requirements are a result of FATCA laws, with penalties beginning at $10,000 per incident. It’s important to note the reporting thresholds for FORM 8938. If your total foreign assets do not exceed those limits, you may not need to file for that year. In short, your individual circumstances will determine which reporting requirements and tax forms may be required.

Ownership in foreign real estate can be an important component of your overall investment strategy. If you already own property abroad or you are planning to invest in overseas property, it is imperative that you understand how the laws and regulations in other countries affect your U.S. taxes.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

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, July 30, 2018

Brachial Plexus Injury Lawyer in Utah

Ever visited the doctor for a routine checkup and walked out of the office with a diagnosis for something that you can’t even properly pronounce? More than likely, something similar has occurred throughout the course of your life. Speaking of puzzling medical terms and scientific names for illnesses, as of late, many people have asked themselves the following: what on earth is brachial plexus injury (BPI)?

Brachial Plexus Injury Lawyer in Utah

Many people in South Jordan and throughout Utah don’t really understand what BPI is, even though it’s a rather common injury. Johns Hopkins Medicine gives a clear definition of BPI: “An umbrella term for a variety of conditions that may impair function of the brachial plexus nerve network.”

The majority of these injuries are caused by trauma, like severe auto accidents. In the human body, the brachial plexus is basically a cluster of nerves in the neck region of the spinal cord that controls the shoulders, arms and hands. This group administers motions in the arms, hands and wrists. Without these nerves, we wouldn’t be able to do even the simplest of tasks, like typing on a keyboard or lifting weights at the gym.

When someone in West Jordan or elsewhere in Utah has a BPI, he or she will likely experience a loss of sensation in the affected areas. The symptoms and severity varies in everyone, because each and every body handles pain differently. Sometimes, feeling and sensation will return after a few days; however, when involved in severe auto accidents, some people may have permanent nerve damage, meaning they may never be able to control arm or wrist movement again.

Of course, as with most injuries, there are different types and degrees of BPIs. Auto accidents commonly result in BPIs. If you or someone you love in Midvale Utah or other parts of Utah has had a traumatic experience, be sure to contact one of our personal injury lawyers to receive the professional guidance and answers that are needed.

HOW TO AVOID BECOMING A DOG BITE VICTIM

Every year, over 4.5 million people in the United States are bitten by dogs. One in every five of these people require medical attention. With so many dog bites occurring each year, how can you protect yourself from becoming bitten? Even the most seemingly-friendly canines can act unpredictably at times, inflicting both pain and injury.

Every dog bite lawyer from Salt lake City to the Midwest has heard stories of relatively mellow canines reacting poorly in certain situations. Here’s how you can become more aware of potentially hazardous situations involving canines and avoid being bitten.

Avoid Sudden, Unpredictable Movements

A dog’s reaction to sudden, unpredictable movements may differ slightly depending on the breed. Moving in a quick, frightening and/or erratic way can trigger a canine’s defense mechanism, causing it to act impulsively — and in some cases, bite either you or the person closest to it. Whether you need to contact a dog bite lawyer in St. George or on the East Coast, remember that you aren’t responsible for the actions of another person’s animal.

You can prevent such an incident by avoiding quick movements around a canine that you’re not familiar with. In the event that you are bitten, it’s critical to remember that the fault still lies with the owner of the dog.

Recognize When a Dog Becomes Territorial

Dogs are exceptionally territorial creatures; if they believe that someone or something is invading their space, they’ll be more likely to attack. If you intentionally or unintentionally invade a dog’s space without first familiarizing yourself with the animal, then you put yourself at heightened risk for being bitten.

You can avoid this situation by approaching an unknown canine cautiously and by becoming acutely aware of its personal space. Every dog bite lawyer from Sandy Utah to Bountiful Utah will warn of the dangers involved with impeding on a canine’s personal space. Becoming significantly aware of the territorial nature of most canines can help you avoid a nasty bite or attack.

Free Initial Consultation with a Brachial Plexus Injury Lawyer in Utah

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

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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Understanding Joint Legal Custody

Understanding Joint Legal Custody

In a divorce involving children, custody case, or paternity action; parenting issues can stir a bitter custody battle. Our firm has litigated and won thousands of custody matters for our clients, and we know the importance of gaining, exercising and understanding parenting rights.

In Utah, two fundamental types of custody must be agreed upon by parents or decided by the court before a divorce can be granted. Those custody types are:

  • Physical custody

  • How will residential care of any children be divided?  Physical custody refers to the provision of shelter and daily care and services for minor children.

  • Legal custody

  • Major legal decisions include those involving health, education and other serious parenting decisions. Legal custody gives you the right to participate in decisions that have a major impact on your children.

In most cases, Utah courts prefer to award joint physical and legal custody. Unless there is a compelling reason not to award joint custody,  several types of joint physical and legal custody are possible.

With legal custody, most couples simply share the decision-making process as issues arise. For couples unable to work together, the court will sometimes grant decision-making authority to one parent for a certain issue such as education, while the other will retain authority for another issue, such as healthcare. In all cases, children benefit when parents work together on their behalf.

If you have joint legal custody and become aware that major decisions are being made outside your knowledge, you need to speak with your co-parent and then with an attorney. Despite joint legal custody, some parents willfully ignore the shared rights of the other parent. Such behavior could lead to correction by a judge through a contempt action or even eventual loss of legal custody for the noncompliant parent.

Items You Must Include in Your Child Custody Arrangement

Every child custody agreement will have its own unique elements. But in general, there are certain items you will absolutely want to include in your own agreement. Here are a few of those most essential elements:

  • Custody descriptors. You need to clearly outline who has both physical and legal custody of the children. Physical custody refers to who is the physical guardian, while legal custody refers to a parent’s ability to make decisions on the child’s behalf. There are different arrangements. Sole custody gives one parent both legal and physical custody, while joint custody gives both parents a shared amount of legal and physical custody.
  • Who makes certain decisions. If you want one parent to be in charge of specific decisions regarding the upbringing of the child, such as medical care, education, religion and extracurricular activities, it should be included in your custody agreement.
  • How you’ll divide costs. Raising a child is expensive. Even when taking child support into account, both parents will likely need to split certain costs. You should have a clear outline of who is in charge for which expenses — or how much of a particular expense. For example, who pays for medication? Who pays for school costs? Which parent claims the child as a dependent on tax returns?
  • When visitation will occur. If one parent has sole physical custody of the child, you should have a thorough, clear visitation schedule implemented in your child custody arrangement so there can be no debate later on about the non-custodial parent’s rights. This plan should address holidays, frequency of visitations and any other issues that could arise between you and your spouse.
  • Future plans. You need to leave some room for flexibility to either amend the agreement down the road or to cover how you will address general issues not currently covered by your agreement.

Free Consultation with 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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Sunday, July 29, 2018

Marijuana Is Not Legal In Utah

Lawyers in Utah already know that legally smoking marijuana is a big deal nowadays, especially in Colorado, where it was made legal by the state’s Amendment 64. Back home in Utah, imbibing and driving is still heavily prosecuted. And if you’re thinking about making a quick trip to our neighboring state for a “good time” without legal repercussions back home, you might want to think twice. Consuming marijuana and operating a vehicle (even weeks afterward and even if the substance was legally consumed) could result in a class B misdemeanor and automatic suspension of a driver’s license.

Marijuana Is Not Legal In Utah

Colorado borders Utah, and many residents are only a hop, skip and a jump away – though Salt Lake City to Colorado Springs is still an eight hour drive in good (summer) weather. Media coverage of Utah’s next door neighbor breaking out the pot has been incessant, and it’s probably because Colorado is the first place in the world – yes, the entire world – to legally sell marijuana to anyone over the age of 21 in fully licensed retail stores. So yeah, kind of a big deal. And while much of Utah’s current news reporting is focused on the same-sex marriage debate, there are still many Utahn eyes watching Colorado, not to mention its interstate highways.

Under a Utah law known informally as the “metabolite statute,” drivers on Utah roads can’t legally operate a vehicle with any amount of a controlled substance in their system. As a Criminal Lawyer, I know that THC can be detected in the bloodstream and urine for up to several weeks after initial ingestion, so residents who mosey next door to partake in a pot party may find themselves returning home to Utah to a less than welcoming environment, even if they aren’t high. The interesting thing (and apparent legal controversy) about the metabolite statute is that according to several state toxicology officials, the THC metabolite that can be detected days and weeks after ingestion “has no pharmacological activity.” Translation: the driver who smoked out a month ago doesn’t actually have impaired driving from marijuana. But Utah doesn’t care. The DUI charge is the same as if a driver had stepped out of a bar, swimming in booze. Some Utah lawyers recognize the illogic inherent in this argument; however, officials are interested in protecting public safety, and no state official -elected or otherwise – wants to appear soft when it comes to safety on Utah roadways.

Details of the statute and its room for prosecution and defense are complicated. The state code provides three defenses:

  1. The marijuana was involuntarily ingested.
  2. It was prescribed.
  3. It was “otherwise legally ingested.”

However, this poses problematic for consumers under the amendment passed in Colorado in November. Amendment 64 is tricky. On one hand, it legalizes marijuana while on the other reiterates that federal law recognizes marijuana as an illegal drug. Tricky indeed. And the latter provides, most likely, the strongest argument for Utah prosecutors: who, really, can legally ingest marijuana (even next door) when the big guys on Capitol Hill still say it’s not okay.  Matthew Piper, writer of the Salt Lake Tribune article, regrets that the Utah Attorney General’s Office didn’t respond to questions of clarification on the federal law, but Utah lawyers will have plenty to deal with either way. It will also be interesting to see how the public responds to the question of impaired driving, especially as Colorado establishes its own impairment studies and policy changes.

Get Your Free Consultation with a Criminal Defense Attorney

If you need help fighting a marijuana change against you, please give our office a call for your free 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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Adoption Legal Help

Adoption Legal Help

Although adoption connects prospective parents with children in need of good homes, and is thus a worthy and vital service, there are often many legal hurdles to overcome before an adoption can take place. For example, prospective parents must prove their fitness for being parents and may have to ask friends and family for letters of recommendation. Additionally, adoption requires certain legal filings and procedures. Some, but not all, of these steps in the adoption process may require the help of an attorney or other legal professional. The following information and tools to help you locate, hire, and work with an attorney for assistance with an adoption matter.

Are you Eligible to Adopt?

One of the useful tools available here is a questionnaire intended to help determine your eligibility to adopt. Laws relating to adoption vary from state to state and this document will not establish with total certainty that you will be found eligible to adopt, but it does touch upon common issues that apply to guidelines generally applicable. It can be viewed as a way to detect potential issues early in the process.

In addition to asking questions that relate to general criteria to adopt there is discussion of the reason for the question being asked and some general principals relating to the issue at hand. By understanding the issues presented here you can better prepare yourself to address potential problems before they interfere with an adoption. If you determine that there is a potential issue there are links to articles relating to eligibility for adoption that can help you learn more about restrictions and how they can be overcome.

It is worth noting that this questionnaire relates to legal eligibility, but agencies, countries, or birth parents may require information about religion, fertility status, educational background, and other aspects of your life and use your responses to determine whether they are willing to permit or participate in an adoption.

Documents you Need

When you are meeting with an attorney to discuss the possibility of adoption there are certain documents that you should bring to your appointment to help the attorney begin to understand the advantages and challenges they may face representing you.

Some documents that are commonly helpful in this situation include certified copies or originals of the adoptive parent(s) birth certificate, marriage and divorce certificates (if applicable), a doctor’s examination and statement from the health insurance company that will cover the adopted child, criminal background check release forms and reports, local police department letters of good standing, passports, and any relevant immigration documentation. Other important items may include letters of reference or a home study.

Adoption Questionnaire

Among the information and materials presented here to help you prepare for an adoption there is a form intended to facilitate the establishment of a relationship with your attorney. The form asks for most of the basic information needed by an attorney to help determine your intentions and eligibility.

Preparing this information in an orderly and concise fashion in advance of your meeting will help you and the attorney maximize your benefit from a consultation or initial meeting. Less time looking for information or filling out paperwork means more time asking and answering important questions that help establish the basis of your working relationship.

Free Consultation with Adoption Lawyer in Utah

If you have a question about an adoption or if you need a lawyer in Utah, 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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Saturday, July 28, 2018

Living Trust vs. Will

You’re trying to create a legal document that will control who will inherit your property after you die. Both wills and trusts allow you to arrange distribution of your assets upon your death. But what legal effects do different types of wills and living trusts have? Deciding between a living trust and a will depends on your personal concerns and what you want to achieve from estate planning. Read on to find out how living trusts and wills differ.

Living Trust vs Will

What Are Living Trusts and Wills?

A will is a legal document that describes your estate and a person or an entity that will receive your property. Depending on your wishes, you can also include any special instructions about care of your minor children, gifts to charity, and formation of posthumous trusts.

On the other hand, a living trust (also called an inter vivos trust) is created by a grantor and managed by a trustee for the benefit of other person or entity (called the beneficiaries). Living trusts can be either revocable or irrevocable. Irrevocable living trusts permanently relinquishes the right to make changes after the trust is created. Revocable living trusts can change or revoke the terms of the trust anytime during the grantor’s life. However, upon the grantor’s death, the trust becomes irrevocable.

Differences Between Living Trusts and Wills

You should weigh the pros and cons of a living trust and a will before creating them. There are several distinct factors and requirements for living trusts and wills.

Becoming Effective During Your Lifetime

Unlike a will, which comes into play only after you die, a living trust can be changed during your lifetime. After creating a living trust, you can transfer or omit certain assets as you wish. You can also use a pour-over will at the time you establish your trust to have any assets transfer into the trust upon your death.

Subject to Probate Proceedings

Probate is a court-supervised process that deals with your assets and debts left behind after you die. Any assets passing through the will require probate. The parties will have to go to the probate court for any matters regarding estate administration, such as proof of the will’s validity, beneficiaries’ challenges, and creditor disputes.

On the other hand, a living trust is not subject to the probate proceedings. Upon the grantor’s death, a trustee can immediately manage the assets or funds involved in the trust and distribute them to the beneficiaries. However, probate may be necessary to limit creditors’ claim.

Private Information vs. Public Record

Once a will is submitted to the probate court, the information goes public. People can go to court and look up assets owned by a specific testator. As opposed to wills, information about living trusts do not go public. Only the beneficiaries have access to the trust documents and the information remains private. Trust records will go public only if the testator’s heirs or any parties file a lawsuit to challenge the trust.

Notarized vs. Witnessed

Unlike wills, living trusts must be signed and notarized. However, on the other hand, a will needs to be witnessed by two people, who are not benefitting from the will

Required Costs and Fees

A will involves costs and fees associated with the probate proceedings that can get expensive. On the other hand, a living trusts can avoid those probate costs.

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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Divorce Mediation in Utah

Although divorces can be ugly affairs, they don’t always have to be. Many times spouses find ways to work together during the divorce process in an effort referred to as mediation. This not only offers them the opportunity to settle out of court, but has many other benefits as well.

Divorce Mediation in Utah

Some of the best things about mediation include:

  • It can be less stressful. The idea behind mediated divorce is for both parties to reach an agreement they can live with. Because of this, the tone is generally more amicable, and some of the less attractive elements of a divorce, like courtroom arguments, are avoided. This is especially important when children are involved.
  • It saves you money. Mediation only requires one objective mediator between you and your spouse. This immediately cuts your lawyer fees in half. It also takes far less time than taking a case to court, ultimately resulting in less billable hours and more money remaining in your pocket.
  • It’s confidential. While courtroom litigation happens in public, mediation is done in a private setting. This not only keeps everything confidential but it encourages open and honest communication.
  • It’s voluntary. Mediation can begin and end at any point, so if it is not working out, you can always revert to a more traditional path towards divorce.

The Success and Failure of Mediation

Since I first talked about alternative dispute resolution (ADR), more and more couples have chosen to resolve their differences and dissolve their marriages through mediation and the collaborative divorce process. Our firm provides mediation services to couples and helps those clients achieve outstanding results. Is ADR the best route to divorce?

The answer is yes and no. The benefits of ADR are clear:

  • Savings in time, energy and money
  • Ability to craft unique agreements and arrangements to suit you and your family
  • Negotiated agreements are more satisfying and more likely to be upheld by both parties
  • Successful mediation helps salvage relationships and provides couples a method for conflict resolution in the future

Despite the advantages of ADR, these techniques do not work for all couples. While negotiation between legal counsel can work in simple and high conflict divorce settings, mediation and collaborative divorce may not be possible for a variety of reasons, including the following:

  • Power sharing: Disparities in income or relative power in the relationship can leave one partner at a disadvantage. Strong legal counsel can assist a marginalized spouse understand his or her rights and opportunities.
  • Acrimony: Even if only one spouse is bitter, the acrimony flowing from false accusations and drawn out battles makes mediation and the collaboration divorce process a poor choice.
  • Failure: High conflict couples who choose ADR may find they added six or more months and thousands of dollars in legal fees to their overall divorce process. If a couple falls out of the collaborative divorce process, information provided and exchanged cannot usually be used in civil litigation and new legal counsel must be retained. Litigation commenced at this point is often instantly polarizing.

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 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, July 27, 2018

Executors

Executors

When a person dies, all of the deceased’s possessions become a part of his or her estate, which must then be administered according to the will of the deceased person. The person who handles the administration of the estate is the “executor.” Just as a quick summary, estate administration refers to the process of collecting the estate, paying any debts or taxes owed by the estate, and distributing the remaining property of the estate to the beneficiaries.

The Executor’s Role

The executor is the person responsible for locating and collecting all of the deceased’s property, making sure any debts and taxes are paid off, and distributing the remaining property and money to the beneficiaries. The money to pay off any debts or taxes comes from the estate. In addition, the executor is entitled to a lawyer if he or she needs help with his or her duties.

Some more specific examples of what an executor can be tasked with doing include obtaining a death certificate, initiating the probate process, filing paperwork in probate court, and contacting the beneficiaries of the estate. The executor is required to perform his or her tasks in accordance with the will and in compliance with the probate laws of each state. The executor is also required to perform his or her duties diligently and in good faith.

Choosing an Executor

There are very few restrictions for who can be an executor. Generally, the executor can’t be a person under the age of 18 and the executor can’t be a felon. There could also be restrictions on a person who lives out-of-state serving as an executor. Usually legal or financial knowledge isn’t necessary to serve as an executor because wills are usually straightforward. And, if the will is complicated or difficult to understand, the executor can consult with an attorney.

Since there aren’t many restrictions or requirements for being an executor, usually people appoint a spouse, child, or sibling as the executor of their will. It’s important to choose a person who is honest, responsible, and organized. If you’re selecting a family member to serve as the executor it’s also a good idea to consider what impact the selection will have on your family. For example, if the youngest of three children is named as the executor, the two older children might feel that they were not trusted or worthy enough to serve as the executor. This can lead to problems between siblings, and maybe even a will contest.

Another factor to consider when selecting an executor is where the executor lives. It’s much easier for an executor to perform his or her duties if he or she is close to the majority of the estate’s assets. Finally, it’s a good idea to name an alternative executor in case the originally named executor can’t or doesn’t want to serve as the executor.

Whoever you name as your executor, it’s important to let the person know that you want him or her to serve as your executor. Letting the person know allows the person to accept or decline to serve as the executor. You should also tell the person where your records are kept and probably give them a copy of your will.

Hiring an Attorney

If you’ve been named the executor of a will, you might need some guidance getting through the probate process. Generally, as an executor of a will, you are entitled to hire an attorney at the expense of the estate. Even if the will doesn’t provide for an attorney, if you have questions or concerns about being an executor, it’s probably a good idea to consult with an estate planning attorney.

Free Consultation with a Utah Estate Administration Lawyer

If you are here, you probably have an estate issue you need help with. If you do, please call Ascent Law for your free 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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Father’s Rights

We’ve previously talked about father’s rights here.  This is some more information for you. Since the sub-prime mortgage crisis of 2008, subsequent economic hardship coupled with an increasing unemployment rate for men has resulted in more “out of work” or “available” fathers.  These fathers have morphed their lives into more accessible work schedules and/or working from home.  As a result of this, men are achieving custody in great numbers.  This means that with the Utah Code expanded parent time schedule (Utah Code 33-3-35.1) you, as a father, can have more time with your kids.

Father's Rights

Recently, our firm has handled several cases in Salt Lake County.   In direct contrast to the counties of Utah County, Tooele and Summit Counties, we begin these custody cases with the presumption that custody is 50/50 and parenting time is 50/50.  This is a welcome development in the law.  Now, keep in mind that not all of the judges and court commissioners do this – in fact, sometimes we are all wondering why there is no consistency with the judges and their rulings; but we can usually gauge it.

Prior to the early 1970’s, the law operated with a presumption that the mother was the fit custodial parent.  The courts have since decreased application of the “Tender Years Doctrine,” a judicial presumption which almost automatically awards custody of the children to the mother, alternatively replacing it with the Best Interests of the Child’s Principle.  The Best Interests of the Child approach attempts to limit such a sex based preference when determining child custody.

A close look at statistical data below shows the interesting facts behind the sharp contrast between fatherless homes versus children with involved fathers in today’s society.

Statistical Data for Father’s Rights

  • 63% of youth suicides are from fatherless homes (US Dept. Of Health/Census) – 5 times the average.
  • 90% of all homeless and runaway children are from fatherless homes – 32 times the average.
  • 85% of all children who show behavior disorders come from fatherless homes – 20 times the average.  (Center for Disease Control)
  • 80% of rapists with anger problems come from fatherless homes –14 times the average.  (Justice & Behavior, Vol 14, p. 403-26)
  • 71% of all high school dropouts come from fatherless homes – 9 times the average.  (National Principals Association Report)

Father Factor in Education

Fatherless children are twice as likely to drop out of school.

  • Children with Fathers who are involved are 40% less likely to repeat a grade in school.
  • Children with Fathers who are involved are 70% less likely to drop out of school.
  • 75% of all adolescent patients in chemical abuse centers come from fatherless homes – 10 times the average.

Father Factor in Drug and Alcohol Abuse

Researchers at Columbia University found that children living in two-parent household with a poor relationship with their father are 68% more likely to smoke, drink, or use drugs compared to all teens in two-parent households. Teens in single mother households are at a 30% higher risk than those in two-parent households.

  • 70% of youths in state-operated institutions come from fatherless homes – 9 times the average.  (U.S. Dept. of Justice, Sept. 1988)
  • 85% of all youths in prison come from fatherless homes – 20 times the average.  (Fulton Co. Georgia, Texas Dept. of Correction)

Father Factor in Incarceration

Even after controlling for income, youths in father-absent households still had significantly higher odds of incarceration than those in mother-father families. Youths who never had a father in the household experienced the highest odds. A 2002 Department of Justice survey of 7,000 inmates revealed that 39% of jail inmates lived in mother-only households. Approximately forty-six percent of jail inmates in 2002 had a previously incarcerated family member. One-fifth experienced a father in prison or jail.

Father Factor in Crime

A study of 109 juvenile offenders indicated that family structure significantly predicts delinquency. Adolescents, particularly boys, in single-parent families were at higher risk of status, property and person delinquencies. Moreover, a study of 13,986 women in prison showed that more than half grew up without their father. Forty-two percent grew up in a single-mother household and sixteen percent lived with neither parent

Father Factor in Child Abuse

Compared to living with both parents, living in a single-parent home doubles the risk that a child will suffer physical, emotional, or educational neglect. The overall rate of child abuse and neglect in single-parent households is 27.3 children per 1,000, whereas the rate of overall maltreatment in two-parent households is 15.5 per 1,000.

Daughters of single parents without a Father involved are 53% more likely to marry as teenagers, 711% more likely to have children as teenagers, 164% more likely to have a pre-marital birth and 92% more likely to get divorced themselves.

  • 43% of US children live without their father [US Department of Census]
  • 90% of adolescent repeat arsonists live with only their mother. [Wray Herbert, “Dousing the Kindlers,” Psychology Today, January, 1985, p. 28]
  • 75% of adolescent patients in chemical abuse centers come from fatherless homes. [Rainbows f for all God’s Children]
  • 70% of juveniles in state operated institutions have no father. [US Department of Justice, Special Report, Sept. 1988]
  • 85% of youths in prisons grew up in a fatherless home. [Fulton County Georgia jail populations, Texas Department of Corrections, 1992]
  • Fatherless boys and girls are: twice as likely to drop out of high school; twice as likely to end up in jail; four times more likely to need help for emotional or behavioral problems. [US D.H.H.S. news release, March 26, 1999]

Census Fatherhood Statistics

  • 64.3 million: Estimated number of fathers across the nation
  • 26.5 million: Number of fathers who are part of married-couple families with their own children under the age of 18.
    Among these fathers –
    • 22 percent are raising three or more of their own children under 18 years old (among married-couple family households only).
    • 2 percent live in the home of a relative or a non-relative.
  • 24 million children (34 percent) live absent their biological father.
  • Nearly 20 million children (27 percent) live in single-parent homes.
  • 43 percent of first marriages dissolve within fifteen years; about 60 percent of divorcing couples have children; and approximately one million children each year experience the divorce of their parents.
  • Children who live absent their biological fathers are, on average, at least two to three times more likely to be poor, to use drugs, to experience educational, health, emotional and behavioral problems, to be victims of child abuse, and to engage in criminal behavior than their peers who live with their married, biological (or adoptive) parents.

Free Consultation with a Father’s Rights Lawyer in Utah

If you have a question about divorce law, child custody, your right’s as a father, or if you need to start or defend against a divorce or custody 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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Thursday, July 26, 2018

Challenging a Will

It is typically very difficult to challenge a will. You most certainly should talk to a Will Contests Lawyer about your situation. Approximately 99 percent of wills pass through probate without issue. Wills are seen by the courts as the voice of the testator, the person who wrote the will. Since that person is no longer here to speak about his or her wishes, the courts stick pretty stringently to the will. Anyone who may have an interest to gain from the will can challenge a will. The most successful challengers are usually the spouses, and the most successful grounds are that the person lacked testamentary capacity or that the person was unduly influenced or persuaded to write the will a certain way.

Challenging a Will

If you challenge a will and are successful, it can be voided in its entirety or just in part. Sometimes, a prior provision, such as from a previous will can be reinstated. If the entire will is voided, the court will distribute the property as if no will had ever existed. This distribution follows intestacy laws, and is guided by familial relationships.

This article outlines the grounds on which one can challenge a will.

Testamentary Capacity

The law requires that only adults 18 years of age or older have the capacity to create a will. Minors lack the capacity to form a legal will. However, in some jurisdictions, minors who serve in the military or minors who are married are given the right to make a will.

Adults are presumed to have testamentary capacity. When litigation arises that challenges an adult’s testamentary capacity, it is usually on the basis that the adult has senility, dementia, insanity, was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of the will’s creation. More specifically, the person must understand:

  • The extent and value of the property;
  • Who he or she is expected to provide for and who the beneficiaries of the will are;
  • The disposition he or she is making and what a will means; and
  • How these elements relate in order to form a distribution of property.

Fraud, Forgery, and Undue Influence

You can challenge a will by showing that the will was procured by fraud, forgery, or undue influence. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator. The term “undue influence” merely means that the person lacked the free will to bargain because of the manipulator.

Another Will Trumps the One Being Executed

If the executor is trying to carry out the provisions of an outdated will, the newer will can trump this older will. Typically, there are requirements to destroy the older will. It is best to always destroy or show an intent to void any outdated will, should one decide to change or update his or her will. Many people even state in the new will that the will is intended to trump and/or void out the previous will. This is why dating the will documents is so important. The court’s interest is to fulfill the wishes of the testator. If a valid legal will surfaces that is dated more recently than the will being executed, the court is likely to follow the newer will.

Sufficient and appropriate witnesses

A typed hard copy of the will must be dated and signed by the testator in the presence of at least two adult witnesses. Vermont requires three witnesses. Most states require that the witnesses not be people who are named as heirs in the will. If in one of these states, a witness is named in the will, his or her gift may be voided, but not the rest of the will.

About half of the states do allow handwritten, unwitnessed wills. These are called “holographic” wills and they must be written and signed entirely in the testator’s handwriting, and in some states, they must be dated. Holographic wills are the easiest wills to challenge, because there are no witnesses. In the case of a holographic will, the court must be convinced that the entire thing is in the testator’s handwriting and that it was created to serve as a will of the testator.

The Will’s Provisions

Each state has its own laws about what a valid legal will must contain. Most states require that the will:

  • explicitly states that it is the testator’s (the person who created it) will;
  • includes at least one substantive clause, such as leaving a certain piece of property to a certain heir; and
  • appoints a personal representative (executor or executrix) to be responsible for invoking the terms when the time comes. In many states, the court will appoint an executor and enforce the will, even when the will names its own executor.

Self-proving affidavit

There is no requirement that a will should be notarized. However, many people include a “self-proving” affidavit in their wills. This is a sworn statement that the witnesses sign in front of a notary public, which relieves the witnesses of having to come to court later to swear to the validity of the will

Residence of the testator

As long as the will was valid and legal according to the laws of the state where the testator had his or her permanent home, then the will is valid in any state where the testator dies.

For example, Sam has a vacation home in Florida, where she spends about four weeks out of the year. She also has business offices in New York and California, where she frequently visits to conduct business, but never spends any long length of time. Sam owns a home in Illinois. This is where she spends the majority of her time, has her primary mail sent, is registered to vote, and her children live and attend school. Sam created a valid legal will in Illinois, according to the laws of Illinois.

A few years later, Sam passes away while vacationing at her Florida home. Her oldest daughter and executrix, Edna, had just moved into Sam’s Florida vacation home, and decides to settle the will there. Yvette, Sam’s youngest daughter wants to challenge the will, based on residence. Yvette is claiming that because Sam’s residence was Illinois, the probate laws of the two states are different, and that Sam created the will in Illinois, the will is not valid in Florida. Yvette will probably not be successful. Even though the will does not meet the requirements of Florida’s will laws, it was completely legal and valid when created in Illinois, Sam’s state of residence, and therefore, is completely valid and legal in Florida, where Sam passed away.

Free Consultation with a Utah Estate and Trust Attorney

If you are here, you probably have an estate issue you need help with. If you do, please 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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Utah Child Support Guidelines

The State of Utah takes child support seriously and makes every effort to help custodial parents collect the child support payments owed to them. Anyone with questions about Utah child support payments and enforcement can get answers at the Office of Temporary and Disability Assistance website. The guidance of a knowledgeable attorney is crucial in these matters.

Utah Child Support Guidelines

The Utah Child Support Standards Act, known as the CSSA, governs child support guidelines across the state. There is basic child support, which is based on the first $130,000 of combined parental income, as well as incomes exceeding $130,000. There are add-ons for unreimbursed medical expenses and childcare.

Child support formulas

For parents with combined incomes under $130,000, the CSSA applies the following statutory percentages:

  • One child: 17 percent
  • Two children: 25 percent
  • Three children: 29 percent
  • Four child: 31 percent
  • Five children: 35 percent

The share of this child support is based upon the percentage of total income each parent earns. A parent who earns three-fifths of the combined income is responsible for three-fifths of the child support. There are also ten factors listed in the CSSA that the Court can consider when determining child support, including the following:

  • The financial resources of the parents and the child
  • The physical and emotional health of the child
  • Tax consequences to each party
  • The educational needs of either parent
  • Whether the child is receiving public assistance

Child support enforcement

Child support covers the needs of the child, including food, shelter, clothing, education and medical services. The Division of Child Support Enforcement provides custodial parents with assistance in obtaining the financial support and medical insurance coverage they need for their children. They also help locate deadbeat parents, establish paternity, and collect delinquent payments.

As of late February before the Supreme Court ruling came out, there were 37 states that had legalized gay marriage. Of those 37, 26 legalized it by court decision, eight (including Utah) by a vote in the state legislature and three by popular vote.

States not yet allowing gay marriage are as follows: Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Ohio, South Dakota, Tennessee, Texas and Nebraska.

The majority of the states now allowing gay marriage have legalized it within the last couple of years. There has been a tremendous movement around the country to approve equal rights for same sex couples, and it has caused quite a divide in states that have yet to legalize it. The process has been repeated over and over again in states legalizing same-sex marriage: a judge strikes down a ban, there are appeals, the decision is upheld and the marriages begin.

Some experts believe that all 50 states could have gay marriage legalized in their states as soon as the end of 2016. But if not that soon, it’s clear that the trend is going to be to continue to see legalizations. Not a single appeal protesting a decision to strike down a gay marriage ban has been successful. With federal judges across the nation consistently calling such bans unconstitutional, it would seem to be only a matter of time before it is legal across the entire United States, without the country ever having had to approve a constitutional amendment to make it so.

Free Consultation with Child Support Lawyer

If you have a question about child support 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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Wednesday, July 25, 2018

Lawyer to Avoid Probate

Lawyer to Avoid Probate

Most people have probably heard that it’s best to avoid probate. However, they might not be sure what probate is and why you should avoid it. Probate is the court-supervised process of sorting and administering a person’s will. If there isn’t a will, the deceased person’s property still goes through the probate process, and is distributed according to the laws of each state. While this process sounds harmless and easy, the probate process usually takes a lot of time and money. There are various costs and fees associated with the probate process, and can tie up property for months.

A Few Ways to Avoid Probate

There are several ways to avoid, or at least minimize, what has to go through the probate process. The most common ways to avoid probate are to set up trusts, take advantage of accounts that have an option to designate a beneficiary, and owning property jointly with the person or people whom you want to inherit your property. Another easy way to avoid probate is to simply gift money and property while you’re still alive. However, it’s important to note that a person can only gift a person a certain amount before it’s subject to taxes.

Why a Roth IRA Is a Good Idea

A Roth IRA is a type of Individual Retirement Account. IRA accounts not only have tax benefits, but also allow the account holder to designate a beneficiary, which means that money in this type of account doesn’t have to go through probate. The tax benefit of a Roth IRA is very different from other retirement accounts. Traditional retirement accounts – like regular IRAs, 401(k)s, or Keogh – are tax deductible. This means that the money you contribute to the account is exempt from taxes. However, the money is taxed when it’s taken out of the account. A Roth IRA, on the other hand, is taxed before it’s put into the account, but not taxed when withdrawn. This can be very beneficial as generally people are in higher tax brackets when they are older.

As previously mentioned, Roth IRAs are also a good account to have if you’re thinking about your heirs. While all types of retirement accounts allow the account holder to designate a beneficiary, traditional retirement accounts often have requirements that minimize their usefulness when inherited, such as withdrawal requirements. For example, a traditional IRA requires the account holder to start withdrawing from the account at the age of 70 ½. This means that less money will be in the account when the beneficiary inherits it. Roth IRAs, on the other hand, don’t have withdrawal requirements, which means that the money can continue to grow regardless of your age.

Hiring an Attorney

An attorney is not always necessary in estate planning. However, it would be beneficial to consult with an estate planning attorney if your estate is large and/or complex. It’s also always a good idea to contact an estate planning attorney if you questions or concerns about how to avoid probate. Finally, if you’ve been named the executor or personal representative in a will, a probate attorney can help you with the probate process.

Free Consultation with an Estate Planning Attorney

If you are here, you probably have an estate planning 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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Divorce Bountiful

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