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topratedutahlawyer · 2 years

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Uncoupling Ceremony

On a sunny California beach, Clark and Valerie Tate assembled their friends and 10-year old son for a special ceremony – an “uncoupling” ceremony.

Conscious Uncoupling

Because divorce can become an ugly and expensive process, the two decided to try a different route, choosing to “consciously uncouple.” This was Clark’s third marriage, and Valerie’s first. While the “spark” in their relationship went out years ago, the two have never once considered a formal divorce.

In the uncoupling ceremony, the two returned they wedding rings to each other, symbolizing the end of their 14-year-old marriage. “These rings do not symbolize who we are to each other anymore,” Clark said. “So we’re releasing them,” Valerie added.

While the two no longer consider each other as husband or wife, they have decided to continue living in the same house so they can continue to raise their son Jonah together.

Focusing on Children

Keeping the family unit intact is crucial for the “un-coupe.” They are determined to protect Jonah from their failed relationship. “Children feel like they’re the center of the universe. They don’t understand necessarily what’s happening, but they feel like it may be something they did wrong,” said psychiatrist Dr. Janet Taylor.

Financial Stress of Divorce

Divorce can be not only emotionally draining, but also financially draining. On average, couples pay $50,000 to resolve contested divorces. But uncoupling in the fashion that Clark and Valerie have might not be an option for everyone. “For couples who have an option relationship, both partners have to totally agree to it, or it won’t work, and that requires communication,” Taylor said. “In some cases, it may involve a third party, a counselor where you draw up rules. But if one person feels like the other one is pushing them into that situation, it won’t work.”

But for now, for the Tates, their situation is working out. The two are still legally married, and for now, divorce is not even on the horizon. “I think we’re through the tough stuff, which was questioning jealousy and insecurity and what happens and who are we, and what is this?” Clark asked. “The unknowns,” Valerie answered.

JOINT CUSTODY IN DEPTH

Parents not living together have joint or shared custody when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can be awarded if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together.

Forms of Joint Custody

Joint custody can be in many forms: 1. joint legal custody 2. joint physical custody. This is where the children spend a significant portion of time with each parent separately 3. joint legal and physical custody.

It’s common that couples share physical custody also share legal custody. It is not necessarily the other way around.

Joint Custody Arrangements

Usually parents work out a schedule according to work requirements, housing arrangements, and the children’s needs when joint custody is shared. If parents are not able to agree on a schedule, the court arranges and imposes an arrangement. The most common pattern is for the child to split weeks between each parent’s home. Here are some other joint physical custody arrangements: 1. alternating months, years, or six-month periods 2. spending weekends and holidays with one parent, and then spending weekdays with the other.

“birds nest custody,” where the child remains in the family home while the parents take turns moving in and out. In this instance the parents each have their own separate housing.

Joint Custody – Advantages and Disadvantages

While joint custody assures the children have continued contact and involvement with both parents and alleviates some of the burdens of parenting for each parent, there are, some disadvantages. For example, children have to be shuttled around between parents, non-cooperative parents can have negative effects on children, and maintaining two homes for the children can be costly.

If you have a joint custody arrangement, it’s important to maintain detailed and organized financial records of all of your expenses such as groceries, school and after-school activities, clothing, and medical care. Because your ex may claim she or he has spent more money on the kids than you have it’s important to keep all records. A judge will appreciate your detailed records.

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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!

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topratedutahlawyer · 2 years

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Not Being An Attorney In Utah Didn’t Stop One Woman’s Quest To Practice Law. It Should Have.

When the Deseret News calls a case “bizarre,” you know that the story is going to be juicy. In Karla Carbo’s case, part of what’s juicy about it is where she got up to so much trouble. A lot of crazy stuff goes down in the Salt Lake Valley, and maybe that’s why Carbo thought she could fly under the radar up high in the mountains, but her impersonation of an attorney in Utah in Summit County landed her somewhere she absolutely hadn’t planned on: jail.

Park City isn’t known for its crime or intrigue—usually the most exciting disputes involve ski and snow resorts, but Karla Carbo takes the cake for stirring up trouble in the tourist town. Charged with identity theft, two counts of forgery and communications fraud, Carbo may be scrambling to hire a real attorney in Utah. You know, not like the one she was impersonating. “Investigators say she has represented herself as an attorney in several court jurisdictions using the name of an actual attorney and that attorney’s bar number.” She probably couldn’t get the attorney in Utah that she impersonated to represent her, but hey, wouldn’t that be irony.

You’ve got to hand it to this lady for having some guts of steel, even if they only served to put her behind bars of steel. She even went so far as to open “her own law office and hire a man who recently passed the bar legitimately but had no idea he was being hired by a fake attorney.” And the future is kind of sticky and uncertain for those clients who Carbo was allegedly representing: “information on how many and what will now happen to those cases” isn’t immediately available.

It was the attorney in Utah who Carbo was impersonating who finally cracked the case when the state contacted her “with a question regarding a recently completed court matter, and she had no idea what they were talking about.” The real attorney dug a little deeper and discovered that Carbo was using her name and license number to represent clients in criminal cases, an area of law in which she had never practiced.

And okay, we know it’s not that funny, even if it seems ridiculous and outlandish. The clients Carbo was falsely representing were real people, with real cases, “and we know of at least one person out there now who has pled guilty to a crime without having a competent attorney,” which is a pretty big deal, when it’s your life—possibly in prison—on the line. Thankfully, that defendant gets a do-over.

Carbo’s case has brought up the fact that attorneys in Utah have to provide their name and bar number in a courtroom appearance, but they don’t have to show photo ID. This is apparently the first time the Utah State Bar has heard of “someone actually going into a courtroom impersonating a real attorney and handling real court cases.” One thing is for sure: Carbo must have watched every court TV show to handle herself in a courtroom without raising too many eyebrows.

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topratedutahlawyer · 2 years

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Husband Secretly Divorced Wife

Gabriel Villa and Cristina Carta Villa were married for 20 years. Or were they? Turns out this husband secretly divorced his wife just months after they were married.

Husband Secretly Divorced Wife

Gabriel Villa, 90, and Cristina Carta Villa, 59, were married for 20 years, had a son together, and two homes – one in New York, and one in France. It seems the two were living in perfect marital bliss, until it was discovered that they weren’t married at all. Turns out, just months after getting married, Gabriel secretly divorced Cristina in an attempt to protect his assets.

But now Cristina is suing Gabriel in an attempt to nullify the divorce she didn’t know about as well as keep him from selling an apartment the two have shared for the past years.

The Love Story

The two met at a mutual friends house where, according to Cristina, “He was absolutely charming, and despite our age difference, it was love at first sight.” They were wed in New York in 1994. She was working as a teacher of Italian literature at Boston College, but gave up her job to be with the lawyer a travel agent. Just four months after the two tied the knot, Gabriel secretly arranged for a divorce in the Dominican Republic. But never told Cristina, who never would have consented to the Dominican divorce. Additionally, the divorce was never registered in New York.

“It’s a fraud” she said.

In the 22 years since their married, the two bought a one-bedroom condo on West 55th Street and had a son, Lorenzo. Additionally, the couple divided their time among Manhattan, Massachusetts, and France. All the while, Cristina thought she was legally married to Gabriel.

“It was and somehow it’s still a great love,” Cristina says. “Gabriel is a very charismatic man, strong, intelligent and very charming. I think we could say I was a loving and caring wife and mother.”

She even stuck with him through the worst of times. According to Cristina, when Gabriel was in the hospital, “I was always at his side.” He even made her his legal health-care proxy and gave her power of attorney.

Allegedly, according to the court papers that Cristina has filed in court, Gabriel was telling Dominican authorities another story, saying that life with Cristina was “unbearable.”

Thought the two did not have residency in the Dominican Republic, Gabriel applied for the legal dissolution there. Allegedly, according to Cristina’s claims, he also hired lawyers to represent each spouse and cited “incompatibility of temperaments” as the reason for the split.

Cristina Finds Out

Cristina only became aware of her divorce last November, when a tax bill arrived for the couple’s Manhattan home and her name wasn’t on it. Curious about the situation, she hired a lawyer to investigate. The lawyer uncovered the fact that Gabriel had attempted to remove her name from the deed, using the Dominican Republic divorce as proof she was not an owner.

According to court papers, Cristina “has no recollection of [giving] any authorization to anyone to proceed with a divorce, or even thinking about divorce from the man she had just recently married.” If legal authority had been given, she was either “surreptitiously impaired, drugged or misled” into giving it.

“I realize now that during all these years of joy and happiness, and of difficult moments we shared together, my husband lied to me and had the Dominican divorce on the back of his mind. It’s what is hurting me the most,” she says. Cristina is arguing that the divorce is not even legal in the Dominican Republic, because neither spouse appeared in the court. Additionally, the divorce was not published in a newspaper, as required under Dominican law. She believes that Gabriel is “using an illegal and fraudulent divorce . . .” to rob her of money.

Marital Property Division

As is shown by this wild case, marital property division can be a very difficult part of a marriage. While this story is a rare one, filled with deceit, it proves just how important it is to be fully aware of your financial picture, even if your spouse is the one that “takes care of the finances.” This is why divorce can be so devastating – you have to pick up the pieces of a financial disaster. But it doesn’t have to be that way.

Finances After Divorce

There are some simple steps you can take to get back on solid financial footing following a divorce. The best way to do this is to make some changes during the divorce that will set you up to more forward once the divorce is finalized.

Build a Team

Mike Lynch, vice president of strategic markets at Hartford Funds, says, “Don’t go it alone. Build a team today – a qualified team of legal, tax and investment professionals. Maybe it’s your current investment professional, or you may seek a new one that understands your situation better.”

Try to Be Civil with Your Ex

It’s important that you remain civil when it comes to your ex. This can be crucial when it comes to working out aspects of a divorce, including marital property division, alimony, and child custody and visitation. This might mean working with a counselor or relationship therapist that can advise the both of you on how to find a common ground, or at least a civil way of communicating.

Consider Selling All Shared Property

While it might feel smart to hold onto property – such as a primary home or vacation home – and just decide who will take over ownership, this can become a major sticking point between couples. Who will take care of maintenance, who will take the utility bills? It’s often advised that a couple sells their home and split the proceeds.

Work with a Certified Divorce Financial Analyst

A Certified Divorce Financial Analyst can act as an advisor to a divorce lawyer or as a mediator for both parties. “Decisions made during divorce are long-lasting and it’s important to stay focused and recognize the significance of the proceedings,” says Allison Alexander, a CDFA, CPA and financial analyst at Savant Capital Management. “As painful as it is, there is no advantage to rushing the process and making errors in judgment.”

Create a Budget

According to certified divorce financial analyst Eva Sachs, the first step toward finding your own financial independence is to balance your income with your expenses. Figure out how much money is coming in (via work, alimony, and/or child support) and then see how much is going out and being spent on living expenses.

Update Your Beneficiaries

Emily McBurney, attorney and qualified domestic relations orders (QDRO) expert, says the top of your to-do list should include updating the beneficiary that is listed on your life insurance and retirement accounts. It makes sense that during your marriage your spouse was listed as your beneficiary, but now that might not make sense. Until you remove he or her name they will remain on there.

Update Your Will

Since you’re already updating your beneficiary designations, don’t forget to revise your will, according to certified divorce financial analyst Donna Cheswick.

Plan for Emergencies

In a marriage, you rely on your spouse when you lose your job, face a medical emergency, or run into an unplanned home expense. But if something happens now, after your marriage, you’re going to need to go it alone. In order to protect yourself, Sachs advises you create an emergency fund. You should add to this fund whenever you are able to. Additionally, doing this also adds to your emotional well-being. There’s a satisfaction in knowing that you can stand on your own two feet if anything goes wrong.

“An emergency fund should equal three to six months of your living expenses,” she says. “If you can swing it, I recommend six months because you’re now single and need an even bigger cushion if you are not able to work or an emergency occurs.”

Taxes

It’s important that you remember tax season during your divorce, as it will have repercussions when it comes to alimony and child support payments. Remember that there will be taxes on assets that are divided, and though it might seem a fair settlement, come tax season it might not be.

Create Your “Single” Budget

You’re entering a new life as a “single” person, so you’re going to need to budget for that life. “Be as specific as you can and make the necessary adjustments to your budget as soon as possible,” says John Garvey, senior vice president of wealth management at UBS. “Next, plan for your future as a single person. If fewer assets are available to you, you may need to reprioritize your spending. As an example, college savings plans may need to be revisited to account for decreased income flows.”

Working with a Divorce Attorney

If you are facing a divorce, you should work with a divorce attorney that will take a vested interest in your specific situation and advise you on what you might face in a divorce regarding property division, child support and custody, and alimony. They will be able to advise you on your options. A divorce attorney will provide support and guidance as you work towards ending your marriage.

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topratedutahlawyer · 2 years

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Salt Lake City DUI

A DUI is an acronym for Driving Under the Influence. This is generally assessed by using a breathalyzer test to find the blood alcohol content/blood alcohol concentration or BAC. The federal limit is 0.08 percent, but some states have stricter limits. For underage drivers, limits are typically set at 0.02 percent. However, many states have adopted zero-tolerance policies for underage drivers. Additionally, limits may also be lower for drivers operating a commercial vehicle. In some cases, a driver can receive a DUI without taking a breathalyzer test or even if a driver’s BAC is below the legal limit. In these cases, the charge is usually based on a field sobriety test or if the arresting officer witnessed weaving and other erratic driving. However, many states can also issue a DWI, which stands for Driving While Impaired. Typically, the purpose of using a DWI is to charge people who are impaired by substances other than alcohol. These substances can be both legal (like prescription or over-the-counter drugs) and illegal. Also, note that some states define DWI as Driving While Intoxicated; these charges are treated the same as a DUI. Typically, a DWI is more severe than a DUI, as it signals higher levels of intoxication. As such, a DWI will have harsher penalties. In some cases, a first-time offender may get a DWI downgraded to a DUI.

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Utah Drunk Driving Laws, Penalties, and Consequences

Utah officially uses the term “driving under the influence” (DUI) instead of “driving while intoxicated” (DWI). However, some people still use DWI and DUI interchangeably to refer to drunk or drugged driving. Utah’s DWI laws prohibit all motorists from operating a motor vehicle: • with a blood alcohol concentration (BAC) of .05% or more, or • while under the influence of drugs or alcohol. A driver is considered “under the influence” if incapable of safely operating a vehicle as the result of ingesting alcohol, drug or any other substance. Utah has a “not-a-drop” law that makes it illegal for motorists who are under the age of 21 years to drive with any detectable amount of alcohol in their system. Any charge of operating under the influence (DUI) is not limited to the use of alcohol. An individual, who is operating a motor vehicle under the influence of other drugs, including over-the-counter drugs, prescription drugs, and even illicit drugs, can be charged with this offense. If an individual is arrested for a DUI-type offense, the arresting officers have the responsibility to remove the individual from the situation and get them off the road. Typically, this means taking them into the police station, booking them, and then putting them in jail until they post bond. In many jurisdictions, individuals must also demonstrate a significant drop in their BAC in order for them to be released on their own recognizance after being arrested for a DUI or related offense. The actual amount of time an individual spends in jail is dependent on the situation, jurisdiction, etc.

How Long Does a DUI Stay on Your Record?

Once an individual is convicted of a DUI offense, there is a record of it somewhere. In many cases, individuals are required to report these offenses on job applications and for other purposes, such as when applying to the military, applying to certain colleges, etc. Insurance companies often investigate an individual’s driving record for as far back as 5-7 years, and when offenses are uncovered by insurance companies, they will tend to charge higher premiums for services or will not cover the individual. Individuals subject to background checks for employment or other purposes often experience a DUI resulting in complications for certain types of employment. Even though it may not appear in some types of background checks or searches years after an individual has committed the offense, there is always a record of it somewhere. Individuals who have multiple DUI convictions, who have seriously injured or killed someone while driving under the influence of alcohol, or who committed significant property damage while under the influence may have these convictions follow them around for the rest of their lives.

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Utah Blood Alcohol Concentration (BAC) Limits and Per Se DUIs

A drunk driving offense based on BAC (rather than the driver’s level of impairment) is called a “per se” DUI. The amount of alcohol a person must drink to exceed the legal limit depends on a variety of factors such as gender, body size, and number and strength of drinks. Take a look at our BAC table to get an idea of what your BAC might be at after a certain number of drinks. But remember the values are just estimates. Lots of factors that can affect BAC aren’t accounted for. It’s always best not to drive if you’ve been drinking.

DUI Arrest and Consequences Lawyer

No matter what the offense is called in your jurisdiction, if you are arrested for impaired driving, you will be facing serious consequences. If you are convicted or plead guilty, you will probably lose your driver’s license and pay fines and court fees. For a second offense, you may spend some time in jail. It is also likely that you will be placed on probation and be required to perform community service. To get your driver’s license back, you will probably have to attend defensive driving classes. In most states, you will probably undergo an evaluation of your drinking or substance use patterns as well. Based on the results of that evaluation, you may have to take part in a drug or alcohol treatment program. That program could range from attending a few support group meetings like Alcoholics Anonymous to entering a residential treatment facility.

After a DUI Conviction Attorney

When you get your driver’s license back, you will likely need SR-22 insurance. This could double or triple your premiums, depending on the laws in your state. On average, you can expect to pay higher premiums for three years. Depending on the state in which you reside, you may also be required to have an ignition interlock device installed on your vehicle, which makes it so you can’t start your car unless you blow into the device and it determines you have not been drinking alcohol. This requires that you pay for the device, its installation, and a monthly monitoring fee. If you get a DUI in Utah, you will have to appear before the Driver License Division. The DLD will grant you a hearing in which you can state your case within the first 10 days of having received your request. If you do not appear before the court within this time frame you will automatically lose your driving privileges for a period of no less than 90 days and up to several years.

Lawyer Pleading to Impaired Driving in Utah

After a DUI arrest in Utah, you may be able to enter a plea to the reduced charge of impaired driving, but only under the circumstances described here. In Utah, impaired driving is a class B misdemeanor punishable by up to six months in jail and a fine of up to $1000.00. If you are charged with driving under the influence (DUI) in Utah, you may be allowed to enter a plea to a reduced charge of impaired driving, but only under certain circumstances. Advantages of an Impaired Driving Plea If your license has not already been suspended by Utah’s Driver License Division, it will not get suspended. If your license has been suspended, the Driver License Division will reinstate your driver license before the 120 day suspension is over, but no sooner than 90 days after the date of arrest. And, unlike a DUI, there is no mandatory jail or fine with an impaired driving plea.

When Does A DUI Become A Felony Charge In Utah?

There are a couple of different ways a DUI can become a felony in the state of Utah. However, the most common way is when a driver has two prior DUI offenses and then gets a third offense within ten years. That third offense will be considered a felony. Another way is if a driver is involved in an accident and caused serious bodily injury to someone else, while driving under the influence. Then that serious bodily injury will bump the normally class B misdemeanor up to a third degree felony. A third way a DUI can becomes a felony in Utah is often overlooked and that is if someone already has a prior felony DUI. For example, there was a gentleman who had a felony DUI from when he was in his twenties. He was nearly 40 before he got another DUI and he could not understand why this one, his most recent, was charged as a felony DUI when his first had been over the ten years. That means once you get a felony DUI, every DUI after that is going to be a felony as well. Those are the main ways that we see felony DUI charges here in Utah. Many people don’t realize or remember they had these previous charges. DUI convictions from other states can be used to enhance a current DUI for sentencing purposes if it’s within the ten year period in Utah. Basically it says, “Statutes or ordinances in effect in other states which would constitute a violation under our law.” That’s pretty broad language to say out of state DUI charges and convictions, impaired driving convictions and driving with a measurable amount of controlled substance convictions can be used in Utah to enhance the current DUI. The prosecutors do have to go to some effort to find the prior conviction because they have to show a court record. What they would have to do is contact that court in the other state and wait for a response. In most cases, the other court will send them the information. However, it does happen where they do not respond at all or can’t find the file. When dealing with prior out of state DUI conviction, the prosecutor to get him the actual proof of conviction, which can sometimes be hard to find. Often the prosecutors will show a driving record that shows a prior conviction. However, when asked specifics on where, what and when, they don’t always know.

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Penalties For A First-Offense Dui In Utah

When a person is convicted of a crime, the sentencing judge will impose certain penalties. If the same person is later convicted for a second or third time, the penalties are likely to be much more severe. This is true of all criminal offenses, including DUI (driving under the influence), which is also called drunk driving or intoxicated driving. In Utah and every other state, the BAC (blood alcohol content) threshold for DUI charges is 0.05%. If a driver’s BAC is 0.08% or above, he or she can be charged with DUI. Keep in mind that for certain motorists, like commercial drivers and people under the legal drinking age, the BAC limit is lower. DUI can also be charged for driving under the influence of drugs, but in those situations, since BAC is irrelevant, charges are based on the signs of drug impairment, which officers known as D.R.E.s, or “Drug Recognition Experts,” are trained to detect. If the DUI involves narcotics, the driver can also be charged with drug crimes like possession of controlled substances. Under Utah Code § 41-6a-503, a first-offense DUI may be charged as a Class B misdemeanor, or a Class A misdemeanor, which is more serious. It depends on whether the DUI causes injury, and the age of any passengers who were in the vehicle. The penalties for a Class B misdemeanor normally include a fine of up to $1,000 and up to six months in jail, while the penalties for a Class A misdemeanor normally include a fine of up to $2,500 and up to one year in jail. However, the DUI sentencing matrix, which judges refer to when imposing DUI sentences, provides different penalties. The judge will order: • 48 hours in jail • Various fines and fees amounting to $1,370 • A 120-day suspension of your driver’s license • A screening, which may result in mandatory education and/or treatment The judge may order: • Supervised probation • Installation of an ignition interlock device, which will prevent your car from starting if alcohol is detected on your breath • Up to two years of additional driver’s license suspension How Intoxicated Driving Penalties Increase for Second and Third Offenses Utah Code § 41-6a-503 lumps first and second DUI offenses together, describing “A person who [commits DUI] for the first or second time…” before classifying the charges. This may lead one to believe that a person convicted of DUI for a second time will receive the same penalties as he or she would for a first offense. However, a look at the Utah DUI sentencing matrix tells a different story. For a second-offense DUI (within 10 years of the first offense), the judge will order: • 240 hours (10 days) in jail • Various fines and fees amounting to $1,560 • A two-year suspension of your driver’s license • A screening, which may result in mandatory education and/or treatment • Supervised probation Additionally, the judge may order: • Ignition interlock • Up to two years of additional driver’s license suspension If you are charged with DUI on a third occasion, you can expect the penalties to increase even more. A third-offense DUI is no longer a misdemeanor – it is a third degree felony, which is much more serious. If you are convicted of DUI in Utah for a third time, or felony DUI, the judge will order: • Up to five years in prison, or about 63 days in jail • Various fines and fees amounting to $2,890 (unless the defendant is sentenced to prison) • A two-year suspension of your driver’s license • Screening, assessment, and treatment for at least 240 hours (unless the defendant is sentenced to prison) • Supervised probation (unless the defendant is sentenced to prison) Additionally, the judge may order: • Ignition interlock • Electronic home confinement (“house arrest”) • Up to two years of additional driver’s license suspension

DUI Lawyer

When you need help to defend against a Salt Lake City Utah DUI charge, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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topratedutahlawyer · 2 years

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What Are Some Causes For Sole Custody To Become Necessary?

Whеn уоu аrе in the middle of a custody case due to divorce or having a child together, your lawyer hаѕ probably thrоwn аrоund and еxрlаinеd tеrmѕ likе “jоint сuѕtоdу” and “ѕоlе сuѕtоdу.” Anywhere in thе United Stаtеѕ, уоu соuld ѕее a custody ѕituаtiоn thаt iѕ еithеr joint or ѕоlе bаѕеd оn the bеѕt intеrеѕtѕ оf thе сhild, оn еithеr a legal оr рhуѕiсаl lеvеl. Wе will hеlр you undеrѕtаnd whаt ѕоlе сuѕtоdу iѕ, thе benefits, аnd whеthеr оr nоt you will bе аblе tо rеlосаtе under itѕ rulеѕ.

Undеrѕtаnding Sоlе Custody

If уоu are granted sole сuѕtоdу of уоur сhild thrоugh thе court, this mеаnѕ that you as thе раrеnt hаvе еxсluѕivе physical аnd lеgаl сuѕtоdiаl rightѕ. Thеѕе situations аrе seen аѕ “rаrе” аnd only hарреn whеn a раrеnt has been dееmеd unfit of having rеѕроnѕibilitу, ѕuсh as in situations where drug аddiсtiоn оr сhild abuse hаѕ taken рlасе. Even thоugh the other раrеnt dоеѕ not hаvе рhуѕiсаl оr lеgаl rights of thе сhild, they will ѕtill bе еntitlеd tо реriоdѕ оf visitation in mаnу cases. These viѕitѕ are often supervised duе tо the nаturе оf the parent’s реrѕоnаl issues. With ѕоlе lеgаl custody, one раrеnt hаѕ thе right tо mаkе mаjоr decisions on behalf of thе сhild. With ѕоlе рhуѕiсаl custody, thе сhild will be supervised when thеу meet with thе оthеr раrеnt.

There are many benefits оf ѕоlе сuѕtоdу. The main bеnеfit iѕ thе fасt thаt уоu dо not hаvе to соnѕult with thе оthеr parent to make important decisions about thе сhild’ѕ life. This inсludеѕ mаjоr dесiѕiоnѕ like еduсаtiоn, medical rеаѕоnѕ, аnd religious uрbringing. Hоwеvеr, уоu mау ԛuеѕtiоn whеthеr or not уоur сhild ѕhоuld still hаvе visitation with thе раrеnt, especially when аbuѕе has оссurrеd. Yоu will hаvе to ѕреаk tо thе court tо dеtеrminе whеthеr оr not it iѕ in thеir bеѕt interest.

If уоu hаvе ѕоlе сuѕtоdу, уоu mау wonder if уоu саn mоvе away from the оthеr раrеnt. This iѕ not always ѕо. Bесаuѕе mаnу раrеntѕ will rеtаin viѕitаtiоn rightѕ, you can оnlу relocate with the соurt’ѕ реrmiѕѕiоn. If thе other parent objects the relocation, the соurt has the right tо hear the саѕе and may iѕѕuе a tеmроrаrу оrdеr thаt ѕауѕ уоu cannot lеаvе in thе mеаntimе. Whilе уоur саѕе iѕ ongoing, уоu muѕt аbidе by this оrdеr. It is imроrtаnt to undеrѕtаnd ѕоlе custody when уоu are gоing thrоugh with your custody саѕе.

WHАT HАРРЕNЅ WHЕN YOU ONLУ AGRЕЕ ON SОMЕ ISSUES IN SЕTTLЕMЕNT?

What iѕ a divоrсе ѕеttlеmеnt? Thiѕ iѕ a ѕресiаl tуре of аgrееmеnt аvаilаblе in your divorce that iѕ made based on thе mаnу сirсumѕtаnсеѕ оf уоur саѕе. For instance, if you have iѕѕuеѕ tо ѕеttlе such аѕ аlimоnу аnd ѕераrаtiоn оf property among ѕроuѕеѕ, it will bе ѕеttlеd out оf court in nеgоtiаtiоnѕ that уоu make with one аnоthеr. You may find thеѕе аgrееmеntѕ thаt соvеr сhild ѕuрроrt, visitation, property matters, mоrtgаgе рауmеntѕ, аnd more in аn орtiоn оf unсоntеѕtеd divorce. Thоugh thеѕе agreements аrе nеvеr legally rеԛuirеd, thеу аrе ѕtill rесоmmеndеd bесаuѕе it decreases the numbеr оf аgrееmеntѕ thаt will need tо bе ѕеttlеd in court in frоnt of a judgе.

The divоrсе аgrееmеnt, rеmеmbеr, iѕ diffеrеnt frоm a ѕераrаtiоn аgrееmеnt. Sераrаtiоn аgrееmеntѕ, instead, аrе сrеаtеd bеtwееn twо реорlе whо аrе ѕtill married but аrе thinking about divоrсе. It helps thеm соmе uр with tеmроrаrу solutions to рrоblеmѕ likе whеrе оnе spouse will livе оr whо will hаvе сuѕtоdу.

When You Agree Onlу on Sоmе Issues

If you and your spouse саn only аgrее on some iѕѕuеѕ whеn уоu are аttеmрting to settle, thiѕ will be dееmеd a раrtiаl divorce ѕеttlеmеnt аgrееmеnt. Thе dосumеnt thаt will be fоrwаrdеd tо the соurt will only соntаin thе iѕѕuеѕ that hаvе bееn аgrееd upon. Thе rеѕt will have to be rеѕоlvеd during court with the hеlр of уоur аttоrnеуѕ аnd a judge.

Thеrе iѕ a chance thаt, еvеn with a раrtiаl аgrееmеnt, thе judgе will аррrоvе whаt thеу see in front оf thеm. They are uѕuаllу rеluсtаnt tо interfere with what уоu decide unlеѕѕ уоu did nоt асtuаllу еntеr into thе аgrееmеnt vоluntаrilу, уоu dо nоt undеrѕtаnd уоur rightѕ, оr уоu аrе giving uр уоur rightѕ with vеrу littlе in return over аnу iѕѕuеѕ. No matter whаt уоur саѕе, уоu ѕhоuld аlwауѕ hаvе a divоrсе аttоrnеу on уоur side to hеlр уоu.

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topratedutahlawyer · 2 years

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Same-Sex Marriage: A Historical Introduction

Within the already controversial realm of gay rights, one of the most controversial topics is same-sex marriage. After extensive litigation, the U.S. Supreme Court ruled that same-sex couples have a fundamental right to marry. As a result, same-sex couples have a legal right to marry and to have their legal marriages recognized in every state. Below you will find a historical introduction to same-sex marriage.

Civil Rights

For some, the idea that same-sex couples should have the same matrimonial benefits as heterosexual couples has been purely a question of civil rights. According to this argument, the constitutional concepts of Equal Protection and Due Process require that same-sex couples be treated no differently than heterosexual married couples. The Supreme Court largely adopted this position, alongside other arguments, when it issued its landmark Obergefell v. Hodges decision in June of 2015. The ruling explicitly states that same-sex couples have the right to marry and have their marriages recognized throughout the country on the basis of the Equal Protection and Due Process Clauses of the Constitution.

Moral Rights and Family Values

Others have seen same-sex marriage as a moral question, and concluded that such unions violate traditional Judeo-Christian ethical values. Another argument has been that it undermines family values: heterosexual marriage is founded upon the need to procreate, but procreation is biologically impossible for same-sex couples. To counter this argument, those in favor of same-sex marriages have noted that marriage has always been permitted for heterosexual couples who cannot or choose not to procreate. Many of these arguments and their rebuttals appear within the Obergefell decision, with the majority largely adopting the positions against the moral rights and family values positions.

Legal Benefits of Marriage Equality

The debate over gay marriage extended beyond the right to marry alone. Same-sex couples sought the same tax and estate advantages, the same rights to surviving children, the same community property rights, and the same health care benefits as heterosexual couples.

Although same-sex marriages have occurred privately for years, only recently has the issue been litigated. The Hawaii Supreme Court’s 1993 decision in Baehr v. Lewin marked the beginning of serious litigation on the topic. After a series of victories and defeats on both sides of the issue, the Supreme Court’s 2015 Obergefell ruling finally resolved the issue in favor of extending the right to marry, the recognition of same-sex marriage, and the attendant benefits to same-sex couples throughout the country.

Prop 8 and the Defense of Marriage Act (DOMA)

Prop 8 was a ballot proposition brought by opponents of same-sex marriage to prevent same-sex marriages in California. When Prop 8 passed its opponents filed a lawsuit complaining that the Proposition violated the Due Process and Equal Protection clauses of the Constitution. The private parties that supported the Proposition and got it on the ballot wanted to defend the law, but the State of California itself refused to do so. The U.S. Supreme Court ruled in Hollingsworth v. Perry that private parties lacked standing to defend a state constitutional amendment where the state itself refused to defend it. As a result, the case was dismissed for lack of standing. Prop 8 was consequently invalidated and many feel that the decision set the tone for subsequent decisions.

Similarly, significant portions of the Defense of Marriage Act (DOMA) were ruled unconstitutional by the U.S. Supreme Court in 2013’s United States v. Windsor. DOMA was signed into law by President Bill Clinton in 1996 and barred federal recognition of same-sex marriages for purposes of receiving tax, insurance, immigration and other benefits. The Court struck down the federal law, stating that it denies same-sex couples the “equal liberty” guaranteed by the Fifth Amendment. The decision extended the right to federal benefits to legally married same-sex couples.

Marriage Equality Under Obergefell

Finally, in 2015 the U.S. Supreme Court’s ruling in Obergefell v. Hodges made it clear that the denial of the right to marry, the refusal to recognize legal same-sex marriages entered into in another state, and the withholding of marriage-related benefits to same-sex married couples were violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. As a result of the decision same-sex marriage will be made available throughout the United States, the states must recognize the legal same-sex marriages of other states, and the rights and privileges of marriage must be extended to same-sex married couples. The decision effectively eliminates all legal distinctions between heterosexual and same-sex marriages at both the state and federal level nationwide.

Additional Resources

Here are a few websites that contain additional information regarding the struggle for and against same-sex marriage equality around the nation: • National Center for Lesbian Rights • Marriage Equality USA • Freedom to Marry • Yes on 8, Protect Marriage • National Organiza

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New Utah Lawyers May Be In For A Much Needed Break, Thanks To Some $2.2 Million In Donations

Being an attorney may seem like a glamorous profession, and it can be, but just like going after a medical degree, law school can be a formidable challenge. Even for the smartest aspiring attorneys, the grueling three years of coursework and interminable purchasing of case law books is enough to turn even the brightest and optimistic students into harrowed and overworked waifs of themselves. At least for a spell. After graduation, those who finish the gauntlet have a promising career of wealth and power ahead of them, right? Maybe not. One legal journal estimates that graduates will shoulder anywhere from $100,000 to $250,000 in student loan debt once they cross the stage with their J.D., a figure that can take decades of pinching pennies to come out from under. But prospective Utah lawyers have been given a gift of hope recently that may make the task a little less burdensome for some, according to the article in the Deseret News.

The University of Utah S. J. Quinney College of Law will boost its program for loan forgiveness, thanks to a $2.2 million gift “from the estate of the late Rita E. Fordham.” The widow of a former University of Utah professor of law, Ms. Fordham stipulated that some of the funds be used “to help law school graduates employed in the public and public interest sectors repay their student loans.” Not only is the University grateful, but young students with dreams of being Utah lawyers may now be able to indulge their fancies of working for the state a little more responsibly, financially.

The average state public defender salary in Utah begins at about $38,845 annually (about $2,450 a month, after taxes). If, like Salt Lake City-based attorney, new students graduate from the S.J. Quinney College of Law at the University of Utah, they’ll probably be facing payments of around $1,151 a month, unless they can secure extended or income-based repayments. Utah lawyers going into the public sector clearly don’t have quite the same motivation to take on all that debt with the promise of at least some loan-forgiveness program at the end of the tunnel.

But even with loan forgiveness programs promised after graduation, the incentive for the best and brightest of Utah’s law students to enter into the public domain doesn’t seem to be much. For most Utah lawyers, the uphill path to financial solvency after so much student debt comes only with private law firm affiliation. So who is in our courtrooms, prosecuting atrocities on behalf of the state or defending the hapless citizens who can’t afford counsel?

Hopefully, with Rita Fordham’s gift to the law school at the U, more of the most clever and driven Utah lawyers will be enticed to serve the public for reasons other than the purely noble cause. Addressing relevant contemporary public policy and legal issues in the state is something that is needed on an ongoing basis, and having the talent and clear-headed ambition to pursue justice within the state’s system is in the interest of the well-being of the state at large. Many thanks, indeed, Ms. Fordham.

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topratedutahlawyer · 2 years

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Lawyers In Utah All Too Aware Of Problematic “Diploma Mills” In the State

One great thing about the maturation of the Internet from its birth almost 75 years ago is the accessibility to information it has provided to nearly every corner of the globe. Recent advocates of online education have hailed the way that universities can upload lesson plans, class notes and lectures online, spreading the love of education and availability of information to millions. Online courses are cheaper for institutions to produce without the overhead of a physical space, and students can access course content from thousands of educators for affordable prices in places where there was previously no access for hundreds of miles. But there’s a darker side to the story as well. Lawyers in Utah point to the troubles that one woman encountered, experiencing fraudulent online courses, as explained in the local KUTV news article.

Michelle Ward’s online program was worthless— she spent $700 to complete six weeks’ worth of classes. Because of her rural and remote location in Price, Michelle’s options for obtaining certification for the job she wanted as a medical assistant were limited, and she chose an online program that promised an accredited certificate. When she went to a job interview after finishing the course, however, she found out the certificate was a fake, “and no one will let her take the exam” because the “school” she attended is not accredited by the right people.

St. Augustine School of Medical assistants has received several complaints, say lawyers in Utah who are familiar with the “diploma mill.” Some of the complaints have been filed with the Federal Trade Commission, who will sometimes go after such unregulated entities for “misrepresenting the validity, legitimacy, and usefulness of their so-called degrees.” But many estimate that the chance of prosecution by a federal or state agency is pretty slim for these guys.

One U.S. Representative, Tim Bishop, (D-New York) has been trying to get legislation passed against these diploma mills, but nothing has gained traction so far. “Credentials ought to mean something. When [a school] is competing with someone who has credentials that are meaningless, that’s not right,” he says.

But even some lawyers in Utah aren’t so sure whether creating more laws is the way to go. Harking back to the early days of the legal profession (when apprenticeship was a viable route to becoming an attorney for those living in remote and rural areas for lawyers like founding father John Adams) some wonder whether a six-week online “school” would be as effective as a six-week stint shadowing professionals in the field of any profession. An educational model that prioritizes and commoditizes information over experience can only take us so far.

Still, Michelle Ward feels cheated, both out of her hopes and her $700. Attorney and other lawyers in Utah point to the likelihood of such diploma mills continuing to run in full operation without significant legal opposition, which can be much more expensive than the $700 courses that many aspiring professionals save up for. Bottom line? Do as much as you can to protect yourself by researching online schools extensively before handing over the cash.

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topratedutahlawyer · 2 years

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The End Of Solving Trap Adapters

We’re often asked about using a solvent trap adapter as a substitute for buying a suppressor from a dealer. The person asking the question is often interested in avoiding the wait time on a Form 1 or Form 4 application and in saving the $200 tax involved with those applications. We advise folks that they should not even consider it without an approved Form 1 in hand, but would be better off looking at a good commercial silencer in the first place.

Those recommendations have been confirmed by the fact that the ATF took action on January 25th against SD Tactical out of Prescott, Arizona for marketing solvent trap adapter kits that buyers could convert into a suppressor buy drilling out the “freeze plugs” and the end cap. The ATF’s concern may have been that too many purchasers of these kits were not going through the formal Form 1 application process and were making contraband suppressors.

The problem may also have been compounded by the fact that SD Tactical is a Type 07/02 manufacturer and makes and sells commercial suppressors through the regular Form 4 process that use the same outer tube and internal parts that they were also marketing as “solvent traps” in an undrilled state. No other suppressor manufacturer is believed to sell their outer tube separately or baffles without a center hole drilled through it. It may also not have helped that they allegedly had made instructional videos of the company owner explaining exactly how to convert your solvent trap into a silencer, so it would appear very clear what the intended purpose of a “solvent trap” really was.

The ATF is reported to have told SD Tactical that they have two choices: stop marketing solvent trap adapters; or, face five years in prison. All in all, the incident makes it very clear that the ATF does not look kindly on these devices and the scary thing is that they now have the shipping records and order records of every person who has purchased such a device or kit from SD Tactical and could be looking into tracking those items down.

Clearly, this makes using such kits even more questionable and we would strongly recommend that you stay away from them. It’s not worth the risk of losing your firearm rights for the rest of your life or the large legal defense bill that could result. We would also advise those who have purchased such a kit to refrain posting anything incriminating on social media and to contact your attorney as to what you should do.

LGBT Adoptions are Legal in Utah

Exciting changes in Utah law make gay adoptions possible for married couples, and Alder Law in Salt Lake City has the knowledge, tenacity and experience to help families and children get all the legal rights they deserve. Our firm’s founder pioneered legal co-guardianships for a number of lesbian couples before gay marriage laws changed, and we have helped many same-sex couples with estate planning to protect their relationships and safeguard their assets. We’re committed to continuing our support for couples in Utah’s LGBT community.

In our work with co-guardianships, we have helped biological mothers and their female co-parents construct arrangements that allow the whole family to share insurance benefits, legal responsibilities and full custody rights. Now, full formal adoption is possible when lesbian and gay couples in situations such as this are married.

TYPES OF GAY ADOPTION ALLOWED IN UTAH

Much of our work has been with formalizing adoptions where one person is the biological parent, but we can also help couples who want to adopt in other situations, including: • Joint LGBT adoptions when neither parent is biologically related to the child • Infant adoptions • Step-parent adoptions • Gay adoptions for children conceived by artificial insemination or surrogate mothers • Foster care adoptions • International adoptions

WHEN IS LGBT ADOPTION ALLOWED?

In Utah, children up to the age of 18 are eligible for adoptions, and any couple who is legally married can apply. In some cases, single adults can also apply if they have a special relationship with the child such as a history of acting as a parent in a same-sex relationship. State law does not allow cohabiting couples who are unmarried to adopt, regardless of sexuality.

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Simplified Or Summary Probate For Small Estates

Generally, probate for large estates can take years, or even decades. However, for smaller estates, there’s a simplified version of the process – often called simplified probate or summary probate. Almost all states, with the exception of a few, allow this simplified probate procedure that saves money and time. Read on to learn about summary probate for small estates.

What Is Simplified or Summary Probate for Small Estates?

A simplified probate procedure, often called summary probate, is a simple probate proceeding that is available for small estates as defined by individual state laws. Different states have different definition of summary probate. Most states allow summary probate as long as the estate doesn’t exceed a certain limit. The amount of estate often refers to the dollar value of the property that’s in the estate, which varies by state. For example, California requires estates not to exceed $150,000 to qualify for summary probate by affidavit with a 40-day waiting period. As opposed to the regular probate process, summary probate typically won’t require a court hearing. Instead, beneficiaries can use simple methods to distribute the assets, as described below.

Determining the Estates Limit

The easiest way to determine the estate limit is to create a list of assets that pass to the heirs and beneficiaries by will. If there’s no will, the state intestate succession law will determine what types of assets are transferrable to the heirs. Then, add up those assets, and the total amount should not exceed the state limit on summary probate. Some types of assets, such as joint tenancy property, retirement benefits, and payable-on-death bank accounts, which don’t go through the regular probate, are not counted towards the summary probate estate.

Getting Started: Summary Probate Process

Although states may have different requirements for the summary probate process, there are common steps that most states require. The summary probate process starts when the executor or the surviving family member files a petition for summary probate. The petition should indicate the amount of the estate and a statement on how it meets the limit to qualify for summary probate under state law. If there’s a will related to the estate, the petition should also show that the will is valid.

Next, you will need to submit supporting documents to go along with the petition for summary probate. The court will require you to attach a copy of the will and a list of heirs and property assets. After the petition for summary probate is submitted, the summary probate process goes into a waiting period, which gives creditors an opportunity to file claim against the petitioner. This period for summary probate usually lasts a month or two, which is much shorter than the regular probate. Then, the estate must pay any outstanding taxes and debts. After that, the assets will be distributed to the appropriate heirs. Once final asset distributions are made, the estate is closed.

Uniform Probate Code on Simplified Probate

Many states have adopted the Uniform Probate Code (UPC), which includes provisions on the simplified probate process. Under the UPC, there are two different methods for simplified probate: (1) affidavit to collect the property and (2) summary administration. Some states have both methods and some states would only allow one of these procedures.

In the affidavit procedure, the beneficiaries can use a simple affidavit to claim the assets, regardless of the amount of estates. The beneficiaries must explicitly claim the title of the property and get the affidavit notarized. Then, all beneficiaries must sign the affidavit under oath. There must be no legal disputes regarding collection of the property. Otherwise, the probate court will need to hold a hearing to resolve the disputes. The summary administration refers to the procedure for small estates. As mentioned above, each state has its own estate limits that set the qualification for summary administration. If the estate is within that limit, the executor may distribute the assets to the entitled beneficiaries.

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topratedutahlawyer · 2 years

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Real Estate Salt Lake City

Are уоu in thе рrосеѕѕ оf buying оr selling rеаl еѕtаtе in Salt Lаkе Citу?

Dо уоu have ԛuеѕtiоnѕ оr соnсеrnѕ аbоut соntrасtѕ, ѕаlеѕ оr lеаѕе аgrееmеntѕ, titles, еаѕеmеntѕ оr liens?

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

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topratedutahlawyer · 2 years

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What To Do If You Are Damaged By Legal Malpractice

Lawyers are required to act in their clients’ best interests, a responsibility known as a fiduciary duty. When you are faced with a situation that forces you to hire a lawyer, you are already in a vulnerable position, and it is your attorneys’ responsibility to represent you or your business to the very best of their ability. When an attorney fails to do so, their negligence or misconduct can cost you valuable time and money. Should you become the victim of legal malpractice, it’s important to know that you can still get the justice you deserve.

WHAT IS LEGAL MALPRACTICE?

Attorneys are required to adhere to reasonable standards of conduct when representing clients. Attorney negligence and legal malpractice can occur in either a litigation or transactional context, and in all areas of the law, including personal injury, commercial litigation, land use, real estate, corporate, tax, probate and estate, and contract drafting.

For example, one vital requirement in any litigation is recognizing and adhering to the Statute of Limitations, and properly and promptly advising clients of their available legal options. Statutes of Limitations are the rules that govern how long you have to file a particular type of claim, and vary from case to case.

As long as a client secures attorney representation well within the Statute of Limitations period, it is then the attorney’s responsibility to file the lawsuit before the Statute of Limitations expires.

Lawyers are also expected to have a thorough knowledge of applicable state and federal laws, as well as knowledge of their clients’ specific legal options.

Many attorney malpractice cases arise due to drafting errors. Transactional attorneys are required to follow client instructions when drafting contracts; otherwise, the client could face otherwise unnecessary financial and legal consequences.

It’s also important for lawyers to be transparent with clients about their litigation experience. Attorneys taking cases in areas of the law where they do not have the requisite experience could lead to errors and negligence down the line.

Attorneys should also turn down cases that could create conflicts of interest. Clients are entitled to legal representation that is fully committed to achieving their preferred outcome.

HOW IS ATTORNEY NEGLIGENCE DETERMINED?

It is not necessary to prove malicious intent on the part of the attorney; simple negligence can constitute malpractice.

To understand what constitutes attorney negligence, it can be helpful to consider the parallel of medical malpractice, which is more widely known.

If a surgeon fails to properly scrub up before an operation and the patient contracts an infection as a direct result, it is not necessary to prove that the surgeon had malicious intent. What is relevant is that any physician that is exercising normal care would follow proper hygienic procedures before undertaking an operation.

The same concept applies to legal malpractice claims. It is possible that your lawyers, for example, failed to file your lawsuit within the Statute of Limitations due to carelessness and not because they specifically desired to sabotage your case. Still, attorneys are under the reasonable expectation that they are aware of Statute of Limitations. If your attorneys are not reasonably careful to make sure your claim is filed in a timely fashion, their actions may qualify as negligence.

Another important consideration is that attorneys usually have insurance to cover any claims made against them for their negligence. This insurance is intended to be available to compensate clients who are injured by their attorneys’ errors.

How can I prove that my attorney was negligent?

From the perspective of a judge, jury, or arbitration panel, it must be demonstrated that, were it not for your attorney’s actions, you would have reached a more favorable outcome in your dispute. In legal terminology, this is known as “but for” causation.

Demonstrating “but for” causation could involve proving that if your lawyer had exercised reasonable care in advising you or acting on your behalf, you would have avoided the harm that resulted.

Although it can be difficult to trust another attorney after you’ve been the victim of legal malpractice, it is important to seek qualified legal counsel to file a malpractice suit. Even if your original lawyer is in the wrong, the reality is they have legal experience that you do not, making it that much harder for you to prevail against them.

Choosing a lawyer who specializes in professional malpractice on a contingency-fee basis is one way to diminish the financial risks.

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topratedutahlawyer · 2 years

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What You Need To Know About Accounting Malpractice Lawsuits

Accountants are expected to follow standards of professional care and conduct in the course of providing professional services to their clients, such as tax preparation, business consulting, and asset management. When accountants do not uphold their professional responsibilities and their client suffers financial losses as a result, the client may be able to recover their losses by filing an accountant malpractice lawsuit.\

ACCOUNTANT STANDARDS OF PROFESSIONAL CONDUCT

Accountants are expected to abide by rules of professional conduct. These rules are published by the American Institute of Certified Public Accountants (AICPA) and are known as “Generally Accepted Accounting Principles” (GAAP). Utah also has laws concerning public accountancy, based in part on the standards set forth in GAAP. Under GAAP and state law, Utah accountants—whether they are engaged in audit, tax, consulting, or asset management services—are expected to follow professional standards that include: • Remaining free of conflicts of interest • Not knowingly misrepresenting facts • Only performing those services that can be completed with competence • Exercising due professional care • Obtaining sufficient data to afford a reasonable basis for conclusions or recommendations • Following the rules set forth by the Utah Board of Accountancy • Meeting licensing requirements (including continuing education) • Maintaining accountant-client communications confidentiality

Because many of these standards are very broad and could cover a wide variety of misconduct, you should discuss your particular circumstances with an experienced accounting malpractice attorney.

EXAMPLES OF ACCOUNTANT MALPRACTICE

Deviation from professional standards can lead to an accounting malpractice lawsuit. To have a case, however, you must have suffered financial losses from the alleged misconduct.

Common examples of accountant misconduct that can lead to a lawsuit include: • Making tax return errors or giving incorrect tax advice • Failure to recommend an audit • Failure to detect embezzlement or fraud during an audit • Preparing inaccurate business reports or manipulating financial statements • Inaccurately evaluating a financial transaction or statement • Keeping poor financial records • Committing inventory, accounts payable, or accounts receivable errors • Giving bad advice about an estate planning matter or an investment • Fraud, such as overbilling, embezzlement, license fraud, or conflicts of interest

Rising Lawsuit Costs Linked to Decrease in Tort Filings

An analysis of state court data by the Wall Street Journal challenges the notion that Americans are overly litigious and raises questions about prohibitive litigation costs.

According to WSJ, tort lawsuit filings (lawsuits for civil wrongs) declined more than 80% from 1993 to 2015. One of the main factors cited for the decline in tort filings is the high cost of bringing suits. Data from the National Center for State Courts shows that the median cost of civil cases is $43,000 – $122,000.

High lawsuit costs speak to another litigation trend: more clients saying they want some form of alternative fee arrangement such as contingency-fee litigation. But even as clients demand that law firms move away from the inefficient hourly billing model, most firms continue to use non-hourly billing on a very limited basis.

THE HIGH COST OF JUSTICE

In “We Won’t See You in Court,” the Wall Street Journal describes a “nationwide ebb in lawsuits” that contradicts the perception of Americans flooding the courts with claims.

WSJ’s analysis of data from the National Center for State Courts (NCSC) finds that tort cases declined from 16% of state court civil filings in 1993 to about 4% of filings in 2015—a difference of more than 1.7 million cases. But there was one notable exception to this downward trend. From 1993 to 2015 contract cases—which includes debt collection, foreclosure, landlord-tenant disputes, employment contracts, contracts for goods and services, and real estate transactions—increased from 18% of the civil docket to 51%.

Among the reasons cited in the article for the overall decrease in tort filings are pro-business tort reform efforts and the rising cost of filing lawsuits.

Judge Gregory Mize of the District of Columbia District Court is quoted as saying that, “People are just not filing cases like they used to. They are not seeking trials like they used to. It’s so expensive and time-consuming.” NCSC data on civil litigation costs confirms that justice is not cheap. In its study “Estimating the Cost of Civil Litigation” NCSC modeled the cost of civil cases using the time expended by attorneys to resolve typical torts, including professional malpractice, breach of contract, employment disputes, and real property disputes. Hourly billing rates reported by attorneys (which ranged from $150 – $600 per hour) were used along with attorney time expenditures to calculate civil litigation costs.

Importantly, NCSC found that, “for all case types, a trial is the single most time-intensive stage of litigation, encompassing between one-third and one-half of total litigation time in cases that progress all the way through trial.”

In many cases, a plaintiff can recover the full value of their claim only by going to trial. Opposing counsel is well aware of this, which is why they often try to reach a pretrial settlement or drag the case on as long as possible and drive up litigation costs to the point where the plaintiff—unable to continue paying a lawyer—is forced to accept a settlement.

LEGAL CLIENTS DEMANDING MORE ALTERNATIVE FEE ARRANGEMENTS

Legal consulting firm Altman Weil, Inc. performed a survey in 2015 that found “more and more clients are saying they want some form of alternative fee arrangements…but most law firms still don’t approach AFAs proactively.” While more than 93 percent of firms surveyed reported using some non-hourly based billing, more than half of the firms generated 1 to 10 percent of their fees from non-hourly billing. And 68% of firms offered AFAs only in response to client requests.

These trends are corroborated by a 2015 Claims Litigation Management Advisors study in which sixty-seven percent of litigation executives polled anticipated no change in the use of AFAs over the next five years.

A well-known problem with the hourly attorney fee model is that it can reward inefficiency and create a misalignment between the interests of attorneys and those of their clients. The contingency-fee model, on the other hand, aligns the interests of attorney and client and creates a shared goal for the case—maximizing the recovery.

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topratedutahlawyer · 2 years

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Utah Workers’ Compensation: The Important Distinction Between Accident And Disease

What is an industrial accident?

The answer to this question is of paramount importance to both employers and injured workers in Utah. The amount of benefits available to an injured worker, and potentially owed by an employer, are directly impacted by whether an industrial injury is classified as an “industrial accident” under the Utah Workers’ Compensation Act, or an “occupational disease” under the Utah Occupational Disease Act.

Utah workers’ compensation law is somewhat unique in that it allows for apportionment in occupational disease claims. Apportionment allows a court to identify all causes of a medical condition, and then adjust the benefits awarded to reflect only the percentage of the injury actually caused by the employment. This system ensures fairness as the worker is paid for the industrial portion of her injury, no matter how slight, and the employer is released from liability for any non-industrial causes of the worker’s condition.

In contrast, apportionment is not available in industrial accident claims. A worker injured by “accident” is awarded full benefits for her entire condition upon proving her claim—even if the industrial accident only slightly contributes to, or aggravates a primarily non-industrial injury. The tradeoff is that, unlike in occupational disease claims, the employment is not assumed to be a legal cause of the worker’s condition. Instead that causal connection must be proven by the worker, the failure of which completely bars an award of benefits.1 Historically, Utah courts drew a common-sense dividing line between the two types of claims. An “industrial accident” was logically defined as a distinct, injury-producing event at work (e.g., falling off a ladder). An “occupational disease” was considered a medical condition that developed gradually as a result of a worker’s exposure to the regular duties of employment (e.g., extensive use of a ladder every day for months or years, resulting in a damaged knee).2

Unfortunately, Utah courts have since departed from that common-sense distinction. In the 1940s, Utah passed an exceptionally restrictive statute that essentially limited occupational disease claims to only a few, specifically identified types of conditions. The courts reacted by steadily expanding the definition of “industrial accident” to cover those gradually developing conditions which fell outside the narrow coverage of the new occupational disease statute, but which also failed to meet the original definition of “industrial accident” due to their gradual onset. Unfortunately, this initially well intentioned expansion has proceeded unchecked for nearly 75 years, and has now far exceeded the bounds of necessity. The courts’ current interpretation of the law essentially allows all gradually developing conditions (even those arising over a period of years) to be claimed as “industrial accidents.” This unbridled expansion has essentially caused a de facto repeal of the Occupational Disease Act and its apportionment provision.

The Utah Legislature has, somewhat recently, indicated its desire to reverse this unnecessary judicial expansion. In 1991, a new Occupational Disease Act was enacted, eliminating the restrictions of the original Act, and expressly providing compensation for “all” injuries and conditions gradually caused by the duties of employment. However, in the 23 years since its enactment, the Utah appellate courts have not been presented with the opportunity to interpret the “new” statute and define its impact upon the current expanded interpretation of what constitutes an industrial accident. As a result, the lower courts have maintained the status quo, continuing to apply the judicially expanded interpretation of the now superseded Occupational Disease Act. Through a currently-pending appeal before the Utah Court of Appeals, our firm has provided the Court with the opportunity to interpret the new statute. In doing so, we have requested that the Court give force to the Legislature’s intent that there be a clear and logical distinction between “industrial accidents” and “occupational diseases.” In issuing this challenge to the Court, we acknowledge the general hesitance of appellate courts to overturn longstanding precedent. However, we are hopeful that the Court will see the overwhelming need for clarification and reform in this hotly contested area of law.

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topratedutahlawyer · 2 years

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Restoring Public Access To Public Waters

Utahns have a rich history of using their public waters (i.e., waters flowing in or impounded on rivers and streams) in place for a wide variety of purposes. Prior to the arrival of Mormon pioneers in 1847, Native Americans, mountain men and other intrepid souls fished Utah’s waters for sustenance and, at times, to avoid starvation. Consistent with the sentiments of Brigham Young and other early Utah leaders, these traditional uses of Utah’s rivers and streams continued following settlement and were even expanded to include commercial fishing and other commercial uses well into the twentieth century.

For example, from the 1860s well into the 1900s, several Utah rivers and streams served as highways of commerce to float forest products (e.g., railroad ties, saw timber, cord wood) from Utah’s mountains to mills and markets. Private sustenance and sport fishing of Utah’s public waters continues today, though severely impaired by limitations recently imposed by the State of Utah. And from territorial days through the present, Utah’s courts have recognized the public’s ownership of these waters, the public’s right to use these waters in place as it always has, and the State’s duty to protect and manage these waters and their uses in trust for the benefit of the public. Unfortunately, in 2010 the Utah Legislature passed the ill-named Public Waters Access Act (Act) making thousands of miles of Utah rivers and streams, including more than 2,700 miles of established fisheries, off limits to the public. RBMN’s Craig Coburn and two other attorneys from other firms are serving as pro bono counsel to the Utah Stream Access Coalition (USAC) in two lawsuits to restore and preserve public access to these public waters.

In one of those lawsuits, the court has agreed with USAC that the public’s ownership of the Provo River and Utah’s other rivers and streams and the public’s right to use these waters in place are protected by the Utah Constitution. The only question remaining in this case – and one likely to be answered by the trial court this fall – is whether the Act violates the State’s duty to protect and manage these waters and their use in trust for the benefit of the public.

In the second lawsuit, USAC has developed evidence regarding the commercial use of the Weber River from Holiday Park to Echo as a highway of commerce in the late 1800s and will ask the trial court to determine whether that evidence demonstrates that the Weber was ‘navigable’ at the time of statehood. If so, the State took title to the bed of the segment of the Weber River at issue at statehood in trust for the people and, as the public owns the water in the Weber, it has a right to use that water in place. And if the historical commercial use of the Weber establishes navigability, those same standards will apply to several other Utah rivers and streams.

Regardless of outcome, both cases are all but guaranteed to end up before the Utah Supreme Court. But though the road is hard and the outcome uncertain, USAC and its members and attorneys are committed to doing all they can to ensure that Utah’s rivers and streams – which the Utah Supreme Court once called ‘gifts of providence’ – are available to future generations to use and enjoy.

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topratedutahlawyer · 2 years

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Lgbt Adoptions In Utah

In 2014, same-sex marriage became legal in Utah, after nearly a year of court battles. This was a surprise to many Utahns, but not for Utah attorney. Our founder pioneered legal co-guardianships for same-sex couples in Utah long before same-sex marriage became legal in the Beehive state.

We are still strongly committed to same-sex couples in the state and we plan on continuing our support for the LGBT community. Since same-sex marriage adoption is relatively new in Utah, it is crucial to understand the laws surrounding adoption in Utah. If you are interested in same-sex marriage adoption, we can help. A Landmark Decision

In December 2013, the U.S. District Court for the District of Utah found the same-sex marriage ban, passed by voters in 2014, to be unconstitutional. This resulted in many other state same-sex marriage bans to be overturned in the following months.

It seemed as if Utah, one of the nation’s most conservative states, was paving the way for LGBT rights. On June 26, 2015, nearly a year and a half after Utah’s ban was overruled, the Supreme Court ruled in favor of same-sex marriage, making it legal nationwide.

Although same-sex couples are allowed to marry and adopt children, legal challenges still persist. In late 2015, Utah’s 7th District Court Juvenile Judge Scott Johansen ordered a foster child to be removed from the care of a same-sex couple. He said that he had research to back up the claim that children do better in heterosexual homes. Needless to say, his order was reversed soon after.

LGBT Adoption in Utah

While challenges to this law will surely persist, we are strongly committed to the LGBT community in Utah. Because of our commitment to this community, we believe it is our obligation to explain the laws surrounding LGBT adoption in Utah. The types of adoption that are legal in Utah regarding same-sex relationships are: • Foster care adoptions • International adoptions • Infant adoptions • Joint LGBT adoptions where neither parent is biologically related to the child • Step-parent adoption • Adoptions for children conceived via artificial insemination or surrogate mothers

As you can tell, these are the same types of adoptions available for heterosexual partners, making LGBT and heterosexual adoptions equal.

Utah Child Support Calculator

One of the most difficult parts of divorce is figuring out the amount of child support one parent should pay the other to help cover the costs of raising the child. Every situation is different and the amount varies accordingly, but it is always nice to have some type of guidance to help make the decision as simple and fair as possible. Luckily the Utah Department of Human Services has a tool called the Utah Child Support Calculator. This tool is designed to help you determine the amount of child support that should be required to be allocated from one parent to the other. While the calculator should be used merely as a guideline, it will help you get a better understanding of what would be a fair child support amount in any given situation.

THE CALCULATOR

Since the calculator is merely a guideline to be used to figure out a fair child support amount, it is not very long. It consists of 12 relatively simple questions, like mother’s and father’s monthly gross income and the number of children involved in the child support case, to estimate a fair amount. This is basic information that will be needed when it’s time to figure out the actual amount that should be allocated and to whom.

It’s important to remember that every child support case is different and the Utah Child Support Calculator is not 100% accurate but it is an excellent free tool that will help you get an approximate child support amount.

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topratedutahlawyer · 2 years

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The Future Of Option Practical Training Extensions For Non-U.S. Citizens Who Receive Degrees In The Fields Of Science, Technology, Engineering, Or Mathematics

One of the most enduring concerns about the current U.S. immigration law is the difficult and lengthy process qualified non-U.S. citizen workers face in obtaining work visas. In an attempt to provide a bridge between graduation and obtaining a work visa for qualified non-U.S. citizens who graduated from American institutions, the U.S. Department of Homeland Security (“DHS”) established the Optional Practical Training (“OPT”) program to allow foreign nationals who study at United States institutions of higher education on F-1 student visas to work in the United States for up to 12 months during and/or after their education. In 2008, DHS established a new policy allowing students who receive degrees in a science, technology, engineering, or mathematics (“STEM”) field to apply for a 17-month extension of OPT. This allowed non-U.S. citizen STEM workers to continue working in the United States for up to 29 months while waiting for an approved, longer term employment visa.

The OPT program was thrown into question when the Washington Alliance of Technology Workers (“WashTech”), a union representing U.S. citizen technology workers, filed a lawsuit against DHS, claiming that the OPT program circumvented labor rights protected by the H-1B visa program for temporary employment, and that the interim final rule that established the 17-month STEM extension program was procedurally invalid. On August 12, 2015, the U.S. District Court for the District of Columbia ruled that DHS did not follow proper notice-and-comment procedures for the April 2008 rule. Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, Civil Action No. 14-529, 2015 WL 5455331 (D.D.C. August 12, 2015). The court revoked the 17-month STEM extension program as of February 12, 2016, giving DHS time to propose and establish a new rule. A subsequent motion to dismiss filed by the government was granted in part and denied in part, narrowing WashTech’s claims to the 17-month STEM extension program rather than the OPT program as a whole.

On October 19, 2015, DHS published a proposed rule to replace the 17-month STEM extension. The proposed rule also increased the STEM extension from 17 months to 24 months. In other words, if approved, non-U.S. citizen STEM workers could have valid work authorization for a total of 36 months, or three years, after graduation from an American university or college. The proposed rule also contains provisions that would grant relief to workers who “run out” of OPT while an employment visa application is pending decision. Pursuant to the Administrative Procedure Act, DHS took public comment on the proposed rule until November 18, 2015. DHS is now working to turn the proposed rule into a final rule as soon as possible in an attempt to avoid any problematic gaps in work authorization.

The results of this litigation and rulemaking process has high stakes for thousands of non-U.S. citizen students, graduates, and their employers who rely on this work authorization. Should the current 17-month extension lapse on February 12 with no new final rule in place, STEM extension workers would need to immediately cease employment. If you are a non-U.S. citizen student or recent graduate, or are an employer utilizing temporary employment visas, please contact our office for advice on how to plan for potential changes in the Optional Practical Training.

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