Legal Separation or divorce can be such a traumatic time for a family, especially when children are involved. In an effort to help lessen this impact, both parents will want to consider what is best for their children and consider ways to help minimize change to the schedule, lifestyle, and habits. One consideration is child support. How is this calculated? Does Utah have a set structure? So, how is child support calculated? Child support is calculated using the gross monthly income of both parents and the number of overnights the child spends in each household. Both parents will need to provide proof of their income in order to accurately establish child support. This will come in the form of pay stubs and providing copies of income tax returns. Utah law does establish Child Support Guidelines to calculate a parent’s child support obligation. The guidelines have three components: • Base child support • Medical care • Child care expenses Utah also has a table that determines the total support obligation for the children, which is shared by the parents according to their incomes. The non-custodial parent pays child support to the custodial parent. Child support is calculated by a formula established by Utah Code §78b-12-301. • The number of overnights a child spends in each parent’s home will also affect child support. There are three basic possibilities: • The child spends at least 111 nights a year in the home of each parent. This is called joint physical custody. • The child spends over 225 nights a year in the home of one parent. This is called sole physical custody. • There are multiple children and some live with one parent and some live with the other parent. This is called split custody. There are many other factors and considerations regarding child support payments such as which parent is responsible for the child’s health insurance; which parent is able to claim the child as a dependent on this income tax return; and how child support payments are to be made. Utah Child Support & Overnight CalculationsUtah uses overnights, or where the children sleep, as the basis for figuring custody timeshare percentages used in its child support formula. Besides income, overnight totals are a key part of the Utah child support formula. Your overnights directly affect your child support, whether you pay or receive. Most overnight totals are estimates (and thus incorrect). Utah attorneys and judges often rely on overnight estimates, even if they are incorrect, because counting overnights is tedious and time consuming. Divorcing parents often rely on these estimates as well. Using estimates means your overnight totals are wrong when compared to your actual parenting time schedule. This means your child support amount will not be fair or exact. How to calculate overnights instead of relying on estimatesTo calculate overnights, the easiest and most accurate way is to use software. Without software, you’re forced to count each night for a whole year, which is error-prone when you include alternating holidays, summer break, and any changes to the schedule throughout the year. Using software, you can also tweak your schedule to see how even little changes affect your total overnights, and you can see how your overnights change each year due to holidays and other events. You can also track what actually happens, and show how many overnights you’ve actually received for any period of time. Historical information is a powerful tool when you request a child support modification or when you request more parenting time. Child support formulas in Utah are tied to sole or joint physical custody status. • Utah sole physical custody: The children reside with and are supervised by the residential parent, while the other parent is entitled to overnight visitations. In Utah, when the nonresidential parent has 110 or fewer overnights with the children, the family courts classify it as sole custody. Parenting time does not figure into the formula. • Utah joint physical custody: Each parent has significant periods of physical custody, which allows them frequent and continuing contact with their children. Utah requires that each parent host more than 110 overnights per year to qualify for joint physical custody. The number of overnights affects the amount of child support. Utah child support formulas and overnight totalsUtah family courts use different formulas for sole and joint custody child support amounts. • Sole physical custody: Utah family courts use a physical care method, which assigns a child support amount based on each parent’s income. The nonresidential parent pays child support to the residential parent. Parenting time does not factor into the formula. • Joint physical custody: Utah family courts use a formula that adjusts the amount of child support payment based on the number of overnights each parent has with the children. As the overnight totals increase, the amount of child support decreases. Examples of sole custody and Utah child supportLook at a sole custody scenario for a hypothetical child support case in Utah. Robert earns $4,000 per month, while Mary earns $2,400 per month. They have two children. Robert and Mary agree that he will have fewer than 110 overnights and he will be the nonresidential parent. See how the child support amount differs in these sole custody examples: Scenario #1: As the nonresidential parent, Robert will pay Mary $835 in child support. In Utah, the nonresidential parent pays child support to the residential parent, regardless of which parent earns more. If the custody was reversed, and Robert had sole physical custody of the children, Mary would pay a percentage of child support based on her income to Robert. Examples of joint custody and Utah child supportConsider the hypothetical joint custody case of Robert and Mary. Robert earns $4,000 per month, while Mary earns $2,400 per month. They have two children. See how the child support amounts change in these joint custody examples: Scenario #1: Robert hosts the children for 111 overnights, the minimum required to qualify for joint physical custody. He pays $831 in child support to Mary. Scenario #2: If Robert increases his overnights by two weeks to 125 per year, his child support amount lowers to $781 per month. Scenario #3: If Robert’s overnights are equal to Mary’s, with 182 overnights, his child support amount lowers to $179 per month. Scenario #4: If Robert’s overnights exceed Mary’s, such as 200 overnights, Mary pays him child support. In this case, Mary pays Robert $36 each month. In Utah joint custody cases, the nonresidential parent pays child support to the residential parent, based on a percentage of his or her income. Other factors in the Utah child support formulaUtah’s child support formula uses the following information to calculate your monthly amounts for joint custody child support: • Overnights: Unlike some states, Utah does not factor in daytime visitations into a child support formula—only overnights. The nonresidential parent must host the children for 111 overnights or more to qualify for joint custody. • Eligible children: Qualifying children in Utah must be under the age of 19 or still in high school. Disabled children who must remain with the residential parent may require child support past these limits. • Gross earnings: Gross earnings are established based on tax records and current pay stubs. Utah law requires the use of both parents’ incomes from the equivalent of one full-time job to determine a child support amount. How accurate child support helps your childrenPaying accurate child support helps your children in several ways, primarily because it ensures their financial needs are met. Here are some other reasons why accurate overnight numbers help you, the other parent and your children: • It provides a fair way to determine your child support amounts • It guarantees the child support amount reflects each parent’s responsibilities • It allows for modifications if your actual time and scheduled time are different • It is compliant with Utah law Your financial obligations to your children don’t end with divorce, so whether you are paying or receiving child support, you owe it to your children to pay or receive the proper amount. Utah parenting time percentages only count overnight visits. Child visitation during the day or into the evening does not affect child support amounts. When a Utah family court awards sole custody to the residential parent, the children will spend fewer than 110 overnights with the nonresidential parent. The number of overnights will have no impact on child support. When a Utah family court awards joint custody, the children spend at least 111 overnights and probably more outside the primary residence. As the scheduled overnights increase with the nonresidential parent, the child support amount slowly lowers. Most people use estimate to calculate overnights, which can lead to inaccurate numbers in the Utah child support formula, resulting in incorrect child support amounts. What Does Child Support Cover?Parents have not only a moral obligation to support their children, but also a legal one that is enforced by an important series of Utah laws. Child support Utah laws are based on the core idea that children are entitled to benefit from both parents regardless of whether those parents live together or not or even whether they are/were married or not. The exception to this is that, in Utah, stepparents have no legal obligation to support their ex-partners children during or after marriage (but all biological parents are). These laws encourage parents to work together in order to provide the best child support services that are in the interest of their children. The Reality of Calculating Child SupportWhen calculating Child Support, a very common misconception arises when couples think that the amount of child support that is paid can be manipulated or changed by changing the type of custody (from “sole custody” to “joint custody”). Another common misconception is that child support will change depending on the amount of days the child spends with each of the parents in a Joint Physical Custodial relationship. In neither case is Child Support changed. There is only one factor that will change the amount of child support paid and that is income of the parents. Let’s define some terms to make this easier to understand.1. Fathers and Mothers Monthly Gross Income: This is monthly gross income the father and Mother makes. This can be calculated by past performance using documents such as tax return or pay stubs. In the event that no documentation is available then the amount can be calculated on what the reasonable ability of the parent has to earn income. The following example shows a father’s income of 3500.00 and a mother’s income of 2500.00 for a total income of 6000.00. 2. Total Combined Child Support: After combining both parents income a calculation is completed using tables set by the state to determine the “Total Child Support” amount. This is the amount that the Law says you must use as support for your children. This amount is the same whether you agree to a sole custodial arrangement or a joint physical custodial arrangement. In this example the calculation came to 1400.00 3. Mothers and Fathers Separate Portion of Child Support: Of the Total Child Support amount, each parent is responsible for contributing their portion. The amount each parent pays is directly proportional to the amount of income that parent makes. In this example the father makes 59% of the total combined income and is required to pay 59% of the Total Child Support or 815.00. The mother makes 41% of the total combined income and is required to pay 41% of the Total Child Support or 582.00. 4. Direct vs. Indirect payment of Child Support: This is where most couples misunderstand how child support works. There are two ways your children will receive support for their needs from Mom and Dad. The first way is what we call Indirect Support. This is when a parent incurs an expense for basic needs of the child. This would include providing shelter in the form of a house payment or rent, gas for transportation, the purchase of food and clothing, haircuts and all other needs the child might have. The second way a child will receive support is what we call Direct Support. This is when a parent makes a direct cash payment to the other parent to help pay for all of the expenses for the child. This is an example of indirect child support expenses that might be incurred totaling $1400.00 To further illustrate we will compare the above family that has a sole custody arrangement and the same family with a joint physical custody arrangement. Sole Custody Example:Lets use the previous example. This mother and father have a combined income of 6000.00 with the father making 3500.00 and the mother making 2500.00. There are 3 kids and both parents have agreed to a sole custody arrangement with the mother. Both parents will be required to pay child support. The mother will be required to pay 582.00 in child support and the father will pay 812.00 (remember this was calculated using their incomes). Because the children will be spending most of the time with mom, naturally she will be incurring most of the day-to-day indirect expenses. Moms grocery bill will be higher, her utilities will be higher, her auto expenses will be higher even her housing expenses will be higher. It is easy to see how her 582.00 portion of child support will be eaten up quite quickly. This is when the direct support from Dad will be needed to help. Once again this is paid directly from Dad to Mom and Mom then applies that money in the areas it is needed. This same scenario can be used if we reverse the sole custody arrangement but instead Dad is the custodial parent. Dad would now use his portion of the child support of 812.00 for the indirect expenses, and mom would pay 582.00 in direct support directly to dad. Joint Physical CustodyNow lets assume that both parents agree that a joint custody arrangement will be the best for the children and that the children will spend 182 days with mom in a year and 183 days with dad. Now in this case as opposed to sole custody, dad is going to have the kids half of the year which means that his indirect expenses for the kids will go up and moms will go down compared to if she had sole custody. In this case using the joint income of 6000.00 (notice we still have a combined child support obligation of 1400.00-it has not changed from sole custody to joint custody) with mom earning 2500.00 per month and dad earning 3500.00 the amount of direct support will change. Who will pay the direct support (mom or dad) once again depends on the amount of days the kids spend with each parent and the amount of income. In this particular case, dad would be paying about 100.00 to mom. The bottom line is the same amount of total child support is paid from each parent no matter what type custody arrangement is chosen or how many days the children spend with either parent. Free Initial Consultation with LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
My Spouse Left The Statue With My Child, What Do I Do? Filing Your Tax Return During Divorce Proceedings In Utah How To Prepare Your Kids For Divorce What Types Of Spousal Support Am I Eligible For? Divorce Lawyer and Family Law Attorneys Ascent Law St. George Utah OfficeAscent Law Ogden Utah OfficeThe post How Is The Child Support Obligation Calculated? first appeared on Michael Anderson.via Michael Anderson https://www.ascentlawfirm.com/how-is-the-child-support-obligation-calculated/
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For most people, a bankruptcy lawyer is an indispensable part of filing for bankruptcy, going through bankruptcy proceedings and recovering after discharge is complete. A bankruptcy attorney has several functions throughout the process and can help a client determine the best courses of action. Bankruptcy is a very complex legal procedure, and bankruptcy courts are not tolerant of mistakes. Even slight mistakes may cause a judge to dismiss the case or cause the person filing to lose important assets, such as a home or car. Experienced attorneys make sure that no mistakes are made and clients’ assets are protected to the full extent of the law. Bankruptcy Attorneys Help You Understand What Bankruptcy IsOne of the most important functions of a bankruptcy attorney is explaining bankruptcy to clients. Before speaking to an attorney, most people have only a vague understanding of bankruptcy law. They know that it can help them erase debt, but they are not fully aware of the consequences and available options. Bankruptcy may not be the right decision in every situation. For some individuals, debt settlement may be more beneficial, and most bankruptcy lawyers can start such a program. Not everyone is aware that individuals have a choice of two different types of bankruptcy: chapter 7 and chapter 13. Both types have different sets of benefits, but one is almost always a better choice over the other when considering an individual’s specific situation. We even have zero down options. Chapter 7 BankruptcyChapter 7 bankruptcy is sometimes referred to as straight bankruptcy, but it is also known as liquidation bankruptcy. In chapter 7, the debtor agrees that his or her assets will be sold, and the proceeds will be split amongst the creditors. Certain personal assets are protected, such as a level of equity in a home, a personal vehicle and personal effects. Even if the value of the assets falls short of the money owed, the total debt is discharged. Chapter 7 bankruptcy usually only takes a few months, and it eliminates nearly all forms of unsecured debt. Chapter 13 BankruptcyChapter 13 bankruptcy is also known as debt adjustment bankruptcy. It is actually a form of debt consolidation mandated through the court. In chapter 13 bankruptcy, debts are consolidated and adjusted so that the debtor makes a single monthly payment for three to five years. At the end of the term, the debts are fully settled. This type of bankruptcy is very advantageous for those who have a steady income and assets they would like to protect. Explaining the Bankruptcy ProcessBankruptcy lawyers handle every phase of the bankruptcy process. In chapter 7 bankruptcy, the process begins with an approved class for credit counseling. An attorney will set up an appointment for this to be done. Once it is completed, it is time to prepare the petition and supporting documents. In some cases, the petition can be up to 60 pages in length. After the petition is filed, creditors are barred from contacting a debtor. If a creditor does contact the debtor, an attorney can usually prevent that specific creditor from doing so again. The next step in the process is the meeting of creditors with the trustee. The trustee is in charge of handling the details of the bankruptcy case. It is the trustee that usually makes the decisions in a bankruptcy case because the judge rarely goes against the trustee’s recommendations. If any creditors object to the debt discharge, an attorney can defend a debtor’s position. After the meeting of creditors is settled, the debtor must take a financial management course before the discharge is complete. Filing without an AttorneyFiling personal bankruptcy under Chapter 7 or Chapter 13 takes careful preparation and understanding of legal issues. Misunderstandings of the law or making mistakes in the process can affect your rights. Court employees and bankruptcy judges are prohibited by law from offering legal advice. The following is a list of ways your lawyer can help you with your case. Pro se litigants are expected to follow the rules and procedures in federal courts and should be familiar with the United States Bankruptcy Code the Federal Rules of Bankruptcy Procedure and the local rules of the court in which the case is filed. Local rules, along with other useful information, are posted on the court’s website and are available at the local court’s intake counter. Court employees and bankruptcy judges are prohibited by law from offering legal advice. Bankruptcy Forms are available to the public free of charge. • Use the forms that are numbered in the 100 series to file bankruptcy for individuals or married couples. Non-attorney Petition PreparersIf you file bankruptcy pro se, you may be offered services by non-attorney petition preparers. By law, preparers can only enter information into forms. They are prohibited from providing legal advice, explaining answers to legal questions, or assisting you in bankruptcy court. A petition preparer must sign all documents they prepare for you; print their name, address and social security on the documents; and provide you with a copy of all documents. They cannot sign documents on your behalf or receive payment for court fees. How Bankruptcy Works in UtahIn most respects, filing for bankruptcy in Utah isn’t any different than filing in another state. The bankruptcy process falls under federal law, not Utah state law, and it works by unwinding the contracts between you and your creditors—that’s what gives you a fresh start. But Utah’s laws come into play, too, in a significant way. They determine the property you can keep in your bankruptcy case. You’ll also need to know other filing information, which we explain after going over some basics. Choosing the Right Bankruptcy Chapter For You in UtahChapter 7 is often a bankruptcy filer’s first choice for several reasons. It’s quick—it only takes a few months to complete. And it’s cheap, you don’t pay anything to creditors. It works well for those of us whose property consists of the essential items needed to live and work. People with more assets could lose them, however, especially if they own unnecessary luxury items. Unlike Chapter 13, Chapter 7 doesn’t have a payment plan option for catching up on late mortgage or car payments. So you could lose your home or car if you’re behind when you file. By contrast, Chapter 13 filers must pay creditors some or all of what they owe using a three- to five-year repayment plan. But the payment plan allows Chapter 13 to offer benefits not available in Chapter 7. For instance, not only do you keep all of your property, but you can save your home from foreclosure or your car from repossession. If you need time to repay a debt you can’t discharge in bankruptcy, you can use this chapter to force a creditor into a payment plan. It can be expensive. Many people can’t afford the monthly payment. Will Filing Bankruptcy in Utah Erase My Debts?Bankruptcy wipes out many bills, like credit card balances, overdue utility payments, medical bills, personal loans, and more. You can even get rid of a mortgage or car payment if you’re willing to give up the house or car that secures the debt. (Putting property up as collateral creates a “secured debt”—if you don’t pay what you owe, the lender gets to take the property back.) But you can’t discharge all debts. Non-dischargeable debts, like domestic support arrearages and recent tax debt, won’t go away in bankruptcy, and student loans aren’t easy to wipe out (you’d have to win a separate lawsuit). You’ll want to be sure that bankruptcy will discharge (get rid of) enough bills to make it worth your while. Keeping Property When Filing Bankruptcy in UtahYou won’t lose everything in bankruptcy. You’ll use your state bankruptcy exemption laws to protect your property. We list the significant exemptions below, but first, understanding the following will help you maximize what you’ll keep in your case. • Exempt and nonexempt property. You can keep property protected by an exemption or “exempt” property. When a bankruptcy exemption doesn’t cover the property, you’ll either lose it in Chapter 7 or have to pay for it in the Chapter 13 repayment plan. Utah Motor Vehicle ExemptionYou can protect up to $3,000 of equity in a car, van, motorcycle, truck, SUV, or another motor vehicle. (Utah Code Ann. § 78B-5-506(3).) Other Utah Exemptions• Personal property. Animals, books, and musical instruments up to $1,000 total; artwork depicting or produced by a family member; bed, bedding, and carpets; burial plot; clothing (but not furs or jewelry); dining and kitchen tables and chairs up to $1,000 total; any three of the following firearms: shotgun, handgun, shoulder arm and 1,000 rounds of ammunition for each firearm; food to last one year; health aids; heirlooms up to $1,000 total; personal injury and wrongful death recoveries for you or someone you depended on; proceeds from sold, lost, or damaged exempt property; refrigerator, freezer, microwave, stove, sewing machine, washer, and dryer, sofas, chairs, and other furniture up to $1,000 total. • Pensions. ERISA-qualified benefits, IRAs, Roth IRA, if the benefits have accrued or the contributions were made at least one year before you filed for bankruptcy other pensions and annuities that you need for support • Public benefits. Crime victims’ compensation. general assistance occupational disease disability benefits; unemployment compensation, veteran’s benefit workers’ compensation • Tools of the trade. Tools, books, and implements used in your trade or profession up to $5,000. • Wages. Unpaid earnings due as of the bankruptcy filing. • Insurance. Disability, illness, medical, surgical, or hospital benefits fraternal benefit society benefits; life insurance policy cash surrender value, but not payments you’ve made on policy within the year before filing; life insurance proceeds if the beneficiary is the insured’s spouse or dependent and if the proceeds are needed for support • Miscellaneous. Alimony that you need for support. Preventing Bankruptcy Exemption ProblemsExempt your property carefully. The bankruptcy trustee—the court-appointed official assigned to manage your case will review the exemptions. A trustee who disagrees with your exemptions will likely try to resolve the issue informally. If unsuccessful, the trustee will file an objection with the bankruptcy court, and the judge will decide whether you can keep the property. Example. Mason owns a rare, classic car worth $15,000, but the state vehicle exemption doesn’t cover it entirely. Believing that the car qualifies as art—at least in his mind—Mason exempts it using his state’s unlimited artwork exemption. The trustee disagrees with Mason’s characterization and files an objection with the court. The judge will likely decide the vehicle doesn’t qualify as art. Purposefully making inaccurate statements could be considered fraudulent. Bankruptcy fraud is punishable by up to $250,000, 20 years in prison, or both. Qualifying for Bankruptcy in UtahIf you’ve never filed for bankruptcy before, you’ll meet the initial requirement. Otherwise, check whether enough time has passed to allow you to file again. The waiting period varies depending on the chapter previously filed and the chapter you plan to file. Learn more about multiple bankruptcy filings. You’ll also need to meet specific chapter qualifications.You’ll qualify for Chapter 7 bankruptcy if your family’s gross income is lower than the median income for the same size family in your state. Add all gross income earned during the last six months and multiply it by two. Compare the figure to the income charts on the U.S. Trustee’s website (select “Means Testing Information”). Want an easy way to do this online? Use the Quick Median Income Test. If you find that you make too much, you still might qualify after taking the second part of the “means test.” If, after subtracting expenses, you don’t have enough remaining to pay into a Chapter 13 plan, you’ll qualify for Chapter 7. Qualifying for Chapter 13 can be an expensive proposition because the extra benefits come at a hefty price, and many people can’t afford the monthly payment. To qualify, you’ll pay the larger of: • your priority nondischargeable debt Free Bankruptcy ConsultationIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
How Is Child Custody Determined? Is A Foreclosure Better Or A Short Sale? My Spouse Left The State With My Child, What Do I Do? What Types Of Spousal Support Am I Eligible For? Bankruptcy Lawyer in St. George UtahBankruptcy Lawyer in Ogden UtahThe post Bankruptcy Lawyers In UT first appeared on Michael Anderson.via Michael Anderson https://www.ascentlawfirm.com/bankruptcy-lawyers-in-ut/ Nominating a Power of Attorney is a crucial aspect to any Estate Plan. After all, this allows someone to make medical, financial, and other important life decisions on your behalf in the event you are unable to do so. It is important to choose someone you trust for the role, and for them to accept the responsibility. As you consider who to select, it can be helpful to understand the power of attorney rights and limitations. This will help illustrate exactly what your POA can and can’t do — which can help provide more context as you begin Estate Planning. Keep reading to learn more about the following: How Does Power of Attorney Work?Power of Attorney works by allowing someone to make important decisions on your behalf, should you become incapacitated or medically unable to do so. The purpose of officially nominating a POA is to ensure that someone can act on your behalf in a timely manner should they ever need to. Without a POA, your family will typically have to go to court to appoint a guardian to handle these duties. What Rights Does a Power of Attorney Have?A Power of Attorney, often referred to as the Agent, has the right to make important life decisions on behalf of the person who nominated them, referred to as the Principal. Here are just some of the power of attorney duties: Why Do Names Matter In Estate Planning?First and foremost, your name matters because you are the one creating the documents. If I have a power of attorney that says it was made by John Jones (instead of John Doe), that document simply won’t work the way I want it to. Names also matter because your estate planning documents generally list people (1) to make decisions for you during your lifetime, if you cannot, and (2) to receive your “stuff” after your death. That’s really the core of what estate planning means. Because there is nothing new under the sun, a lot of people have the same or similar names. How does this affect your estate plan? Attorneys often include additional information in estate planning documents to help identify the people named as your beneficiaries or representatives. For instance, your will might provide, “My house shall be distributed to my only daughter, Mary C. Doe.” Even if Mary changes her name, you can be pretty certain that your executor and the probate court will understand or be able to easily figure out who you are referring to, since she is your only daughter. That’s the main rule of thumb: As long as anyone can confidently identify the person named in your estate planning document, it is generally alright to leave the document the way it is. Think of it from a practical perspective. After all, estate planning documents are created to be used. What potential problems could someone have in using your estate plan? If a name change would not cause any problems, then you may not need to change anything. On the other hand, you want to make sure your estate planning documents work. If a name change could cause problems, delays, or other difficulties, a change can be a good idea. When You Should Consider Updating Your Estate Plan?I should go ahead and dispel a common myth: You do not need to amend your estate planning documents anytime something changes in your life. There are a lot of reasons why you should update your estate plan, but you should always talk with an attorney to see if a change is even necessary. That being said, name changes are a big deal. Here are a few scenarios in which it may be a good idea (or even necessary) to update your estate plan: Example 1. Let’s say your durable power of attorney appoints your daughter, Mary C. Doe, as your medical attorney-in-fact (i.e., the person who gets to make medical decisions for you). She then gets married and changes her name to Mary Doe Johnson (or Mary D. Johnson). The name change is reflected on her driver’s license and other forms of identification. If Mary needs to act as your attorney-in-fact (e.g., talk to your doctor, get copies of your medical records, and consent to a medical procedure), will your health care provider recognize her as the person granted that authority in your medical power of attorney? With medical professionals so concerned about privacy (as they should be), there is a good chance that such a different name could give them pause before talking with your daughter. After all, how do they know that Mary is who she claims she is? Mary might be able to sort things out — for instance, she could show her marriage license or court papers establishing her name change. But who keeps those documents on them all the time? And considering that a medical power of attorney is often used in connection with emergency situations, you want to work EXACTLY when you need it. No delays. So in this case, your daughter’s name change might make an estate planning update advisable, to help ensure there will be no problems identifying her. Example 2. Another situation in which you might want to update your estate planning documents is when your representative or beneficiary has a common (or, at least, not one-of-a-kind) name. This isn’t really due to name change but rather a fact of life. If your son is named John Smith, how do third parties (a bank, a hospital, a closing company, etc.) know that the John Smith standing in front of them trying to withdraw money from your bank account or trying to access your medical records is the same John Smith named in your documents? Again, you want your estate planning documents to work when they need to work. Amending your estate plan to include a relationship (“…my nephew, John Smith…”) or a birthday (“…my nephew, John Smith, born January 1, 1980…”) can help clear up any doubts the common name might raise. Remember earlier when I said that the key with names in estate planning documents is to make sure you provide sufficient clarity so that anyone can confidently identify the beneficiary or representative named? When it comes to common names, consider the opposite: If a third party might have any doubts that the person named in your estate planning document is the person try to use that document, you may want to update your estate plan to help minimize those concerns. If you are reading this article and thinking, “Hmm, my last will and testament might be a little vague. I think I’ll write a note on it that provides more information,” — STOP. Making notes, adding language, crossing out words, or making any other changes to might invalidate that estate planning document. Instead, as with all things legal advice, consult with a qualified estate planning attorney to make sure that any changes are made in the proper way. Amending a power of attorney (POA)If you decide that you want to make a change to your POA you will need to tell your estate attorney. The POA can only be amended by you, the granter, if you are capable of making and understanding this decision. Types of AmendmentsThere are 2 types of amendments; What Is A Simple Amendment?This covers straight forward administrative amendments, such as a change of name or an address. You will need to provide your attorney with written details of the change that is to be made. It is very important that our records are kept up to date and that you tell us if the granter or any attorney changes address. A form provided if it involves a change of address. The amendment will become effective on the date it’s registered by your attorney. What Is A Full Deed Of Amendment?A full deed of amendment covers situations where you, i.e. the granter, wish to add a joint or substitute attorney, or amend the terms of a particular power or add extra powers etc. A fee is charged for registering the amendment. You will need to inform your attorney about the amendment you want to make in the form of a ‘deed of amendment’. This document can be typed or handwritten. You should state clearly what is to be amended and sign and date the document. There is no set style for this notice. Please remember to specify which POA the amendment applies to. You should be aware that when the amendment is registered, that a copy of your deed of amendment will be attached to the new certificate of registration and copy of the initial POA document. Some amendments can be complicated to apply, however this will depend on the extent of the changes you wish to make. It is often easier and it costs the same, for the old POA to be revoked and a new POA registered in its place. Having a new POA may help to avoid any confusion or misinterpretation when an attorney is exercising their powers. Adding A New AttorneyIf new attorneys are being added, they will need to confirm in writing that they are willing to act. If they are given continuing powers i.e. financial related powers, they must also confirm they are not currently declared bankrupt. Substitute attorneys only need to provide confirmation when they become active. When Is An Amendment Not Suitable?If a POA has been terminated an amendment cannot be made. Situations where a POA is terminated include: What Happens if a Beneficiary Is in a Maiden Name?Individuals often draft their estate plans many years in advance. Wills, trusts, life insurance, retirement accounts, and other legal documents bear the names of beneficiaries, and it’s not unusual for these names to change between the drafting of a document and its enforcement. When a grantor dies, their legal documents might name individuals who have since married, divorced, or even been adopted, therefore having their maiden name changed. Wills and TrustsWills and trusts allow a grantor to name beneficiaries to receive assets after the grantor dies. The law recognizes that life circumstances, including marriage and divorce, result in the changing of maiden names, and the law aims to enforce the wishes of the deceased. If the identity of the intended beneficiary is clear, the law enforces the will or trust regardless of the party’s current name. Other Financial and Legal DocumentsSimilar to wills and trusts, other financial and legal documents naming beneficiaries seek to transfer the assets to the intended beneficiary upon the death of the original owner of the asset. Often, the document identifies how an individual with a changed named must prove their identity. Beneficiaries must provide the financial institution any documents required to receive the assets as intended. Remember, this process may be new to you, but financial institutions make these types of transfers every day. The institution has individuals whose job it is to make these transfers, not to question or fight an intended beneficiary. Methods of ProofWhen a beneficiary’s maiden name has changed, a marriage certificate or copy of a divorce decree is sufficient to show the name change and prove the party is actually the intended beneficiary. If those documents are not available for some reason, affidavits from disinterested third parties can prove the name change and that the individual is, in fact, the person named as the beneficiary. In a perfect world, every grantor updates their documents with correct names and addresses. Clarifying the name of the desired beneficiary avoids any possible confusion in the future. In fact, parties should periodically review any estate plan. Grantors should not treat estate plans as something forgotten once executed. However, the law recognizes that updating estate plans and other financial and legal documents is not something on the top of everyone’s to-do list. The law prefers to connect these dots easily and see that the intended beneficiary receives the assets left to them upon the death of the original owner. A beneficiary whose maiden name has changed can prove their identity by producing a marriage certificate, divorce decree, or affidavit. Once the court sees appropriate documentation, it can distribute the funds, property, or other assets to the desired beneficiary. Free Consultation For A Power of AttorneyIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Appeals And Motions To Modify Divorce Decree I Got A New Job, Can I Still File Bankruptcy? How Much Alimony Can I Expect To Pay? Discharging Student Loans In Bankruptcy If I Put My Child Up For Adoption, Can I Change My Mind Later? Ascent Law St. George Utah OfficeAscent Law Ogden Utah OfficeThe post Power of Attorney Inheritance and Name Change first appeared on Michael Anderson.via Michael Anderson https://www.ascentlawfirm.com/power-of-attorney-inheritance-and-name-change/ Many women considering adoption experience moments of doubt, wondering, “What if I change my mind? Can I give my baby up for adoption and get her back later? If I need to, how can I get my child back after adoption?” The quick answer is no – you can’t change your mind later. Make sure you call an Adoption Lawyer to discuss this to make sure because laws change all the time. Your adoption decision becomes permanent when: This also depends on what state live in. Once the revocation period passes, there is no way for you to reclaim your child or your parental rights. If you “give a child up” for adoption, you cannot try to get the child back later, in the best interest of the baby at the center of the adoption. That’s why it’s so important that you do not place your child for adoption until you are ready. However, you will have opportunities to change your mind and discontinue the adoption process at any other point during your pregnancy. Your adoption specialist will be by your side through every twist and turn of your adoption process. They will be there to answer your questions and counsel you through any uncertainty you might have so that you can be confident you are making the right decision for you and your baby, whether that be adoption or parenting. If you have any doubts at all, contact your specialist so that you can talk through what you’re feeling. It is important to understand that nothing you do or say during your pregnancy commits you to adoption. You can contact Utah Adoptions at any time to learn more about your unplanned pregnancy options, even if you are still unsure about adoption. When you call, you can get free information and support to help you better understand the adoption process, so you can decide whether this option is right for you. Then, if you decide you do want to move forward with adoption, our specialists can help you start the process. Even if, early on, you agree to put a baby up for adoption but change your mind later in your pregnancy or after birth, you can stop your adoption process any time before you complete the adoption paperwork. Remember, of your adoption plan. This means you get to make all the important decisions, like: Remember, your adoption decision only becomes final when you complete the paperwork after the birth of your baby. Until then, you have every right to change your mind and decide to parent your child. Agreed to Put a Baby Up for Adoption But Changed Your Mind After Delivery?Because choosing adoption is a big decision, many prospective birth mothers ask, “If I give my baby up for adoption, what time frame do I have to change my mind after I give birth?” This can be an emotionally challenging time for many prospective birth parents, but your adoption specialist will be there to help you through it. Randi, a birth mother who placed her daughter, Samantha, through an Adoption Agency, remembers how emotional this time was for her. She took her time before making her decision, using it as an opportunity to spend precious time with her baby. After your waiting period passes, you may sign the adoption paperwork whenever you are ready. Your adoption specialist or an adoption attorney will ensure you understand the legal consent process when it is time to sign these forms. During this time, you may have another important question: “How long after you give your child up for adoption do you have to get them back?” Your adoption attorney will answer this, but you can also find some information on this topic below. How to Get My Child Back After Adoption and Revoke My Consent?You are considering adoption because you love your baby and want to provide a stable home for him or her. However, some birth mothers experience feelings of doubt or regret after signing. While it is rare, some women even find themselves thinking, “I gave my baby up for adoption, and I want her back. Can you ‘unadopt’ a kid?”The short answer is no. “Honestly, just sit down and think about the best interest of your child,” she said. “You’re going to contemplate the decision a hundred times but, at the end of the day, you’re going to know what’s right for you and what’s right for your child. There may be a specific reason you are interested in revoking your consent. Many times, women wonder, “If the adoptive family breaks an open adoption contract, can I get my child back?” This is a complicated situation. In some states, an open adoption is legally enforceable with a post-adoption contact agreement. However, other states do not have laws in place to enforce post-placement contact. A court will not let you “adopt your child back” if this kind of situation occurs; they will just work to enforce the terms of your open adoption agreement. No matter your legal birth mother rights in open adoption, American Adoptions will continue to facilitate your relationship after placement and ensure your child’s adoptive parents are honoring their commitment to you. If you are considering withdrawing your consent, talk with your adoption specialist or legal counsel. They can help you determine whether you are just experiencing a normal moment of difficulty, or whether adoption truly is not the right choice for you. How Long After Adoption Can The Mother Change Her Mind?Because adoption laws are different in each state, the rights of the birth mother vary. But there are general guidelines that the states stick to in terms of parental rights. Read on to learn how long after adoption a mother can change her mind. Depending on the mother’s birth plan, the adoptive family may be at the hospital during or after the delivery. Whether the adoptive parents are present or not, they are not the child’s legal guardians until the mother signs the TPR. TPR stands for termination of parental rights. This document confirms that the mother is giving up her rights to be the parent of the child. Once the baby is born, there is a set period of time in which the mother must retain her parental rights. This period varies by state but generally falls between 48 and 72 hours. In Texas, birth mothers must keep their parental rights for 48 hours. After this, she can sign away the rights so the adoptive parents can become legal guardians. But during the period that the mother has her parental rights, she can change her mind about the adoption. Can You Get Your Child Back After Being Adopted?But what about the birth parent’s rights after the adoption is finalized? Can a biological parent regain custody after adoption? In some states, parental rights revocation is allowed. This means that the birth parents’ rights after adoption include the ability to take back consent. If the birth mom changes her mind after the adoption papers are signed, there may be a revocation period. During this time, the adoption has already been finalized, but the birth mother can still change her mind about the adoption. According to Adoption Act, an agency adoption can only be revoked if both parties agree. But there is an exception. “If the birth parent has specified an adoptive parent and that placement is not finalized; then the parent has 30 days to rescind.” Some states have shorter revocation periods like Kentucky (20 days). Other states do not allow for a revocation period unless there are special circumstances. In Utah, a direct placement adoption is revocable for ten days, but not in all cases. Be sure to look into the revocation period guidelines to understand birth parent’s rights in your state. In some cases, the revocation period is not within the birth parents’ rights after adoption. If the birth mother signed a Waiver of the Right to Revoke Consent, then she cannot get her child back after the adoption is complete. In some situations, the birth mother signs a document that specifies irrevocable consent, whether with the state or an adoption agency. This means that the birth mother cannot change her mind about the adoption. So, can you get your child back after being adopted? The answer depends on the time frame, the state laws and the type of agreement that the birth mother agrees to. In many cases, going back on the adoption is difficult or impossible. Can A Biological Parent Regain Custody After Adoption?No. Not usually. Very rare if ever. I’d say less than a 1% chance. A birth mother experiencing regret may wonder, “are adoptions final?” In most cases, the answer is yes. Adoption is a legal process that follows specific regulations from the state and government. Because the termination of parental rights is a legally binding document, regaining custody after adoption is extremely unlikely. Child welfare laws specify, “Adoption is meant to create a permanent and stable home for a child; therefore, a validly executed consent is intended to be final and irrevocable. As a result, the right of a birth parent to revoke consent is strictly limited.” So can you ever get your child back after being adopted? The revocation period mentioned above is the best option for regaining custody of an adopted child. If the period has passed, there is likely no legal option for reversing the adoption process. Laws on AdoptionAfter your baby is born, the amount of time you have to change your mind depends on which state you live in. Most states have a revocation period of at least a few days that will allow you time to reconsider. Typically, waiting periods range between 3 to 10 days after you sign the official paperwork. An adoption attorney can help you understand your rights, and make sure that you’re fully informed before you sign anything. Free Adoption ConsultationIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
What Are The Alternatives To Divorce Court? Appeals And Motions To Modify Divorce Decree Things A Divorce Lawyer Can’t Fix How Much Alimony Can I Expect To Pay? Ascent Law St. George Utah OfficeAscent Law Ogden Utah OfficeThe post If I Put My Child Up For Adoption Can I Change My Mind Later? first appeared on Michael Anderson.via Michael Anderson https://www.ascentlawfirm.com/if-i-put-my-child-up-for-adoption-can-i-change-my-mind-later/ Common methods for calculating spousal support typically take up to 40% of the paying spouse’s net income, which is calculated after child support. 50% of the recipient spouse’s net income is then subtracted from the total if he or she is working. Spousal support amounts should be agreed to by both parties and can be waived by the recipient spouse. When we talk about spousal maintenance, support, and alimony we are talking about the same thing. Although spousal support is not mandatory in most states, it can be mandated by a judge depending on certain conditions, in particular: How Long Have You Been Married?Unless there is a valid prenuptial agreement that provides a separate agreement for alimony, in a marriage of only few years, any kind of long duration alimony award would be highly unusual. In general, divorcing spouses can expect that alimony in a marriage of only a few years will be very limited, or not granted at all in the case of a brief marriage of two earners of around the same income level. The longer the marriage, the greater the spousal support. Courts generally look more seriously at cases of couples who have been together at least a decade. Although the exact formula varies state by state (and case by case), in many states the number of years alimony is required to be paid cannot exceed the number of years the couple was married for, in marriages under 20 years in duration. Do You Have a Variable Income?In some jobs, what you make in a year goes up and down. A contractor, for instance, might build a bunch of homes one year, but very few the next. If your income changes year to year, the courts will likely take a five-year average to figure out what you make and what you may owe. Does Your Spouse Work?If your spouse quit their job when you got married, some courts may require you to cover job retraining costs to help with re-entry into the workforce. This is called rehabilitative alimony. Even in a brief marriage, if your wife stepped back from a very competitive field to be a stay-at-home spouse, some kind of job retraining might be needed. Do You Have Young Kids?In a short marriage, a stay-at-home spouse’s “income” may be calculated as if she worked 40 hours a week at a minimum wage job. In other words, this is the minimum she could be expected to make if she had to go out and get a job due to the divorce. On the other hand, if you have super-young kids, the courts will take this into consideration as why a spouse is unable to get a basic job, and adjust the calculations accordingly. The reasoning: There is little reason for one spouse to go out and get a minimum wage job, only to then have to pay for a caretaker to watch the kids. Did You Lose Your Job?Let’s just get this out of the way: You cannot quit your job, move back in with your mom, and claim zero income. Nor can you decide to “retire” at the age of 40 and hope the courts reconsider the monthly alimony. However, if the paying spouse loses his job or sees a decline in his business, he can go to court to file for a modification of his alimony obligation based on changed financial circumstances. Finally, although the most common set-up has one spouse forking over money to the other in the form of monthly checks, it is possible to negotiate other types of payment. For instance, you might offer to buy your ex out of her half of the house or consider a redistribution of material goods like the family cars and maybe the private jet. Sometimes, these arrangements allow for a cleaner break, and that’s good for the whole family. If One Spouse Will Face Hardships Without Financial SupportCourt ordered spousal support is enforced if there is sufficient need to maintain his or her standard of living. The courts recognize both husband and wife are entitled to live at the level they enjoyed during marriage. It’s important to keep track of alimony as there are implications to be aware of when filing taxes after divorce. When isn’t Spousal Support Considered?The presiding judge is unlikely to force alimony under the following conditions: How to Negotiate a Fair Alimony Settlement with Your SpouseWhen it comes to alimony settlements, you only appear in front of a judge if you and your spouse can’t reach an agreement. You should give negotiation a try as it’s a lot less expensive than going to divorce court, and you won’t be leaving important decisions about your life to the judge. You can work with your divorce lawyer to help you understand the factors that the judge would consider before you start negotiating with your spouse about alimony. Today, Ascent Law shares general ways to negotiate a fair alimony settlement with your spouse. Start With Your NeedsTo negotiate a fair alimony settlement, focus on your needs first. Look at the difference between your expenses and your income this will guide how much alimony support to ask for. You’ll be required to prepare a monthly income and expense disclosure so it’s a great place to start. Understand Your Spouse’s ResourcesAll assets and income need to be considered for both parties and all information should be disclosed in the forms that you’re both required to fill out. If financial information is missing then your lawyer can use discovery methods to get the additional information that’s needed. Be Flexible & Look for a Win-WinDon’t draw a line in the sand when it comes to negotiations. Look for the win-win solution, whether there’s an equitable distribution or not. If you come to the alimony settlement table and are unwilling to negotiate, you can quickly create a stalemate. This only leads to increased tensions and a (costly) drawn-out divorce case. Take Control Of Your Own EmotionsThroughout the divorce process, you have to keep your emotions in check. Alimony negotiations are hard enough as it is, so you don’t want the other party to take advantage of your emotional state. Losing control of your emotions may also lead to the breakdown in alimony settlement negotiations altogether. Contact A Divorce LawyerNegotiating alimony may be difficult and you should hire an attorney who understands the process and will work to get the amount you deserve. We don’t recommend that you try to settle alimony payments yourself, or risk being disappointed with the outcome. Why Gross Income Is Used to Calculate AlimonyWhen a couple divorces, several things need to be considered. If the couple are raising minor children, they need to decide on custody arrangements and child support payments. The assets acquired during the marriage need to be divided between the two spouses. In some divorces, one spouse pays alimony to the other. The court uses the paying spouse’s gross income to calculate the amount of alimony payments. Tips For AlimonyGross income is used as a standard of measure for alimony payments due to the fact that an individual could manipulate the basis for alimony payments through excessive deductions. This, in turn, would create an artificially lowered net income. Evaluating Gross IncomeGross income refers to the total income earned by an individual. This includes wages, self-employment income or investment earnings. Any deductions from gross income, such as taxes, insurance or retirement contributions are used to calculate the net income. Gross income remains unchanged. Assessing Standard of LivingThroughout the marriage, the couple experienced a particular standard of living. Divorce leaves the nonworking spouse with little income to maintain that standard of living. Alimony serves to help the spouse maintain a comparable standard of living. Alimony calculation uses gross income because this represents the standard of living the parties lived prior to the divorce. Identifying Optional DeductionsThe alimony calculation uses gross income because many deductions from gross pay are optional. Retirement contributions, savings plans or stock purchase plans all represent deductions employees make from gross income. The individual decides whether to make these deductions and how much to deduct. These deductions are optional and the employee could potentially manipulate the income amount by deducing the entire amount. The court calculates alimony using gross income to prevent the individual from manipulating the basis for the alimony payments. Additionally, if a paying spouse’s taxes or benefits change and more is taken out, the receiving spouse won’t be penalized for something that is outside her control. Tax Liability TransfersThe tax liability for the alimony payment transfers to the recipient. The taxable income of the payer decreases by the amount of alimony paid. The court uses gross income to calculate the alimony payment because this correlates with the income measurement used for the tax calculation. How a Judge Decides the Alimony AmountIn comparison to child custody cases—in which judges must decide which parent a child is going to live with deciding on an alimony amount is a piece of cake. Every state has a law dictating what factors must be considered in setting alimony. Basically, in setting the amount of alimony to be paid, courts look at: As is frequently the case, if there isn’t enough money to make it possible for the parties to reestablish something close to their marital standard of living, then most judges will look for a way to make the divorcing parties share the financial pain equally. Example: Here’s how the math works out in a typical alimony case. Imagine that a husband who files for divorce earns $5,000 a month. His wife stays at home with three young children and earns no income. Under their state’s formula, she’s entitled to $1,650 child support per month. But say she convinces the judge that her total rock bottom needs, including a house payment, are $2,300. If the judge is convinced her budget is solid and that her husband can afford it, she would be awarded $650 in spousal support: $2,300 minus $1,650. Are Savings Included in a Standard of Living?In many states, the law specifies that in setting alimony, the judge should consider how much support it would take each party “to maintain the standard of living established during the marriage.” This can raise questions about how a court should set and evaluate a particular standard within the “standard of living.” For example, consider the married couple who agreed that it was important to put a generous slice of their income in a savings account. Now that they are getting divorced, should that practice be considered a part of their standard of living? The bottom line: The courts in your state may or may not have taken a stand on this and many similar questions. There is plenty of room for disagreement. Find out your state’s position, either through a lawyer or on your own. Depending on what you find, it may be a good idea to retain an experienced family law specialist to represent you. Free Consultation About AlimonyIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
How Does Child Support Get Paid If My Ex Goes To Jail? What Are The Alternatives To Divorce Court? Financial Planning For Beginners Dismissal After Passing Chapter 7 Means Test Appeals And Motions To Modify Divorce Decree Ascent Law St. George Utah OfficeAscent Law Ogden Utah OfficeThe post How Much Alimony Can I Expect To Pay? first appeared on Michael Anderson.via Michael Anderson https://www.ascentlawfirm.com/how-much-alimony-can-i-expect-to-pay/ The appeals process is expensive and may not provide the results you are seeking. However, a modification is far less expensive and is the best way to change certain aspects of the divorce decree — including property division, spousal support (alimony), child support, child custody arrangements, and visitation. A request for a change is made by filing a “motion to modify” the divorce decree or judgment. This motion is usually filed with the same court where the divorce judgment was issued. Many states provide forms, check with your local state and county courts to see if they are available. Modifying divorce decree can be done, but it is difficult. Courts assume that the original arrangements were correct and they are reluctant to make changes. However, they will if it is in the best interest of the child and there are changed circumstance that make a change necessary. Who May Appeal a Divorce Decree?A divorce decree refers to the court’s final ruling and judgment order. Depending on the state, a divorce decree may also be called a final order or a final judgment. This order is what makes the termination of a marriage official. Each divorce decree will be different based on the needs of each divorcing couple, but the general purpose of the decree is to summarize the rights and duties of each party in connection with the divorce. The divorce decree contains specific conclusions for issues such as property distribution, child custody and support, and alimony payments. Divorce decrees are important due to the fact that the divorce process is not complete until one is issued. As such, the party’s status as married or divorced will not be finalized until the divorce decree is completed and issued. Divorce proceedings that are not yet completed may have effects on different areas of life. Some examples of this may include: • Debt; In some cases, a divorce decree will outline other provisions. Examples of such provisions may include the debts that the parties have incurred over the course of their marriage, as well as their financial responsibilities after the divorce. A record of the final decree of divorce is maintained in the vital records office of the courthouse in the county in which the divorce occurred. These may be obtained if an extra copy is needed. Appealing a divorce judgment is an action in which one party, subject to a final divorce decree, seeks to change or correct that final judgment. Any party to the divorce may appeal the decree, so long as doing so is not prohibited by state statute. Depending on the state, both parties can file an appeal to the decree at the same time. Because the appellate system provides much deference to the original judge. However, it is not impossible. If both spouses agree to the terms of the settlement, the final settlement cannot be overturned on appeal unless there were issues regarding how the agreement came about. What Are Valid Grounds for Appealing a Divorce Decree?There are many reasons to contest a divorce, although not all are legally valid. The most common claim for appealing a divorce decree is that the court made some sort of mistake regarding the law in the final judgment. The party filing the appeal must show that the judge made an error or mistake in applying or interpreting the law regarding the circumstances of the case. Generally speaking, a party cannot simply challenge facts that were already established over the course of the original proceeding. If the facts have been established at the lower court, the appellate court will accept those as the facts of the case, unless something about those facts reflects the mistake that the court made when applying the law. An example of this would be if the court concluded that one spouse’s income was $50,000 a year. This fact could not be contested on appeal, unless it can be proven that the court applied the wrong legal standard for calculating income. If the fact is the result of the wrong legal standard being applied, then this could be possibly challenged on appeal. Other common grounds that could support an appeal of the divorce decree might include: Instances of fraud committed by the opposing party in connection with the court proceedings; Hidden assets or concealment of other important information by the other party; and Discovery of new facts that could not otherwise be discovered during the original proceedings. While these are all legitimate instances in which an appeal might stand, the appeal is most likely to be successful if it is based on an error in law committed by the court. It is important to note that there are numerous different circumstances in which one party may seek to modify a divorce decree. After a divorce becomes final whether through settlement agreement or after a court decision — either spouse may still have an opportunity to challenge certain decisions made by the court. One or both spouses can seek to appeal or modify their divorce decree. The following is an overview of the appeals and modification processes. How a Divorce Appeal WorksAppealing your divorce is not a second shot at the divorce trial. You are not allowed to present new evidence such as witnesses or documents—to the court of appeals. Instead, the court will consider only the record of evidence that was presented to the trial court and the legal arguments you and your appeals attorney make. If you failed to present evidence at the trial in the lower court, you will not be able to present it to the appeals court. 1. Decide What to AppealBefore heading to court, you will need to decide whether to appeal all or part of your divorce judgment. Most of the time, you can’t use an appeal to reverse the entire divorce—rather, you would use an appeal to challenge certain terms of the divorce. For example, you might want to appeal only the part of the divorce decree dealing with property division, or maybe you want to appeal both property division and alimony (spousal support). Overturning a trial judge’s decision doesn’t come easily: Courts generally grant appeals only when you can demonstrate that the trial court • Abused its discretion, for example by obviously ignoring evidence, or You might also be successful in your appeal if you can show that • You’ve uncovered new facts that you couldn’t have known about or discovered during the divorce proceedings Most of the time, it’s not enough to show that you didn’t know about some fact or asset during the divorce proceedings. You must also show that had the trial court known of it, it would have had a “material” effect on the outcome—in other words, that the outcome probably would’ve been different. For example, if you find out after the divorce decree is entered that your ex-spouse lied about having an affair, this fact (although maddening) probably wouldn’t have had an effect on the judge’s decision—especially if your divorce was “no fault.” If the court of appeals agrees that the new fact is material, it might remand your case so the trial court can consider the new information. For most people, consulting with an attorney before filing a divorce appeal is well worth the effort: If you do not have legal grounds (reason) for your appeal, you will waste a lot of time, money, and effort. A lawyer who specializes in divorce can give you an honest evaluation of your case and chances of success in an appeal. 2. File a Notice of AppealTo officially begin your appeal, you will need to file a “notice of appeal.” The notice of appeal lets the courts, your ex-spouse, and any lawyers involved know that you’re appealing. Many states require you to file the notice of appeal in both the trial court and the court of appeals. Most appeals courts have very firm deadlines by which you must file your notice of appeal. Often, these deadlines are short—for example, your court might require you to file a notice of appeal within 30 days of when the judge signed your divorce decree. After filing the notice, you will need to serve copies of it on your ex-spouse (or your ex’s lawyers, if any). If you don’t follow the procedural rules, the court might dismiss your appeal and not allow you to refile. 3. Prepare the RecordThe next step in the appeal process is for you and your lawyer to prepare the “record of appeal.” This usually includes the: Trial transcript. The trial transcript is a word-for-word written version of what was said during the divorce trial. You will need to pay for a copy of the transcript, which can be expensive. You can’t include any new evidence in the record of appeal that you had access to or knew of at trial but did not present to the trial court. 4. Draft and File the Appellate BriefPerhaps the most labor-intensive aspect of a divorce appeal is creating the appellate brief. A “brief” is a written document that lays out the writer’s legal arguments and support for the arguments. Every court of appeals has its own detailed instructions on how to format appellate briefs. For example, many courts require briefs to be written in large, double-spaced font, and include an appendix so the court can refer to the different sections of the brief. Most also require you to attach copies of any laws and court cases cited. Drafting appellate briefs is so complex that many attorneys won’t write them—rather, they will refer clients out to attorneys who specialize in appeals and appellate brief writing. Both spouses must submit a brief to the court. After the briefs are submitted, the court will either notify the parties of a date for oral arguments or issue a decision. 5. Attend the Oral ArgumentIn most state courts of appeal, a panel of judges (usually three) decides the outcome of each case. Many courts of appeals offer the opportunity for the parties to orally present their arguments to the panel of judges in a process called “oral argument.” Some courts schedule all appeals cases for oral argument. Others schedule oral argument only when a party requests it or when the judges believe it would be helpful in making their decision. If you think that you would like to have an oral argument, make sure you find out the process for securing a time and date. The court usually caps the amount of time for each party’s oral argument at 15 minutes or less. The court might allow the parties to reserve a portion of their time to respond to the other side’s argument, and judges often ask the participants questions. The whole process usually takes less than an hour. After the parties finish their oral arguments, the judges close the hearing and take the case under advisement—meaning they will not issue an immediate decision. 6. Receive the Court’s DecisionIn general, appellate courts issue their decisions anywhere from 30 to 90 days after the conclusion of oral arguments. The court’s decision will do one of the following: Affirm the trial court’s order. A decision affirming the trial court means that the appeal was unsuccessful and the trial court’s order remains binding as written. Reverse the trial court’s order. When an appeals court reverses the trial court’s order, the appeal has been successful. The appeals court’s decision will specify what will happen next—for example, whether the case is remanded (see below) to the trial court or a new or modified order is entered. Modify the trial court’s order. In cases where the appeals court believes the trial court made an error, the appeals court might issue an amended judgment of divorce or otherwise modify the trial court’s order so that it is in keeping with the law. Most appeals courts send their decisions electronically—either you or your attorney (along with your ex-spouse’s attorney) will receive a notification to log on to the court’s filing system to read the decision. Review it carefully to see if you need to take further action. Are There Different Kinds of Appeals for Divorce Decrees?There are different kinds of appeals for divorce decrees. Many of them are only granted according to the judge’s discretion. Some ways that you can challenge the decree include: Appeal: This is the standard process for challenging a divorce decree, and is also one of the most time-consuming. Generally speaking, you have thirty days in which to file an appeal after the final judgment has been issued. The appeal must be based on the court’s mistake of law; in general, no new facts can be introduced on appeal. The appellate process maintains strict procedures and deadlines about filing the notice of appeal. Failure to follow your state and county procedures, or missing that deadline, may forfeit your right to appeal; Motion for Rehearing: A motion for rehearing is a highly specific type of procedure that must be filed almost immediately after the judgment is issued. You do not have an absolute right to have the case reheard, as the request must be granted by the judge; and Motion for Relief from Judgment: A motion for relief from judgment is only granted in limited circumstances. An example of such circumstances would be if the other party committed fraud or concealed assets. Generally speaking, this motion may be granted only in cases in which something serious has occurred that affects the fairness of the decree. The motion for relief from judgment generally has a longer deadline for filing than that of the motion for rehearing. If you wish to appeal your divorce decree, it is imperative that you pay attention to the deadlines. All of these potential procedures have very strict deadlines. In some cases, this deadline is ten days or less after the final judgment is issued. Missing the deadline may mean that you miss your chance to appeal the decree. Every case is different, of course; however, the appeal process is not generally a quick one. Sometimes the appeal can take as long as two years. This is especially true when the case is “remanded” to a lower court. What this means is that the case is sent back to the lower court to reconsider the issues. The appeal process can also be expensive, and may not provide the results you are seeking. The chances of winning a divorce appeal are low. If you wish to appeal your divorce decree, you may want to take into consideration how the overall length of the process will affect other important life decisions. Free Initial Consultation with LawyerIt’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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