Should I Opt for a Prenuptial Agreement?

We often associate prenuptial agreements with the short-lived marriages of Hollywood stars, but nowadays many “regular” couples are choosing to sign prenuptial agreements. In 2013, 1,600 members of the American Academy of Matrimonial Lawyers were surveyed and 63 percent reported an increase in prenuptial agreements over the course of three years.

The Pros of a Prenuptial Agreement

Though, a prenup is not the most romantic thing in the world, this document can protect both parties in the event of a divorce, or the death of a spouse. Prenuptial agreements can prevent nasty, expensive court battles and protect each spouse’s premarital assets from being claimed by the other spouse. It was also protects the income and assets that are acquired during the course of the marriage. Without prenuptial agreements, a party may have to pay child support or alimony, but a prenuptial agreement can establish an agreed amount or eliminate it completely from becoming a cause for litigation in the future.

A prenuptial agreement can, of course, be difficult emotionally. However, it is nowhere near as emotionally corrosive as the pain that can be caused by an ugly divorce, especially when there are children involved. Enduring this emotional discomfort early on can prevent years of devastating later on. Prenuptial agreements have been suggested to strengthen a marriage, since it allows each spouse to become aware of where they stand financially. This benefits an individual by providing them with some protection against the unknown of the future. The rights of children from the marriage or relationship can be protected through a prenuptial agreement, and you can even decide how to handle individual financial debts like student loans or credit card bills.

The Cons of a Prenuptial Agreement

In a first marriage, a prenuptial can create permanent friction between spouses and families. Some prenuptial agreements are unnecessary, too broad and mean-spirited, often welcoming marital selfishness and creating a destructive atmosphere. Prenuptial agreements often occur on an uneven playing field, where one spouse has significantly more money or assets than the other. This can lead one spouse to feel selfish and unkind and the other to feel like the victim of an unfair agreement.

The initial prenuptial agreements can be harsh, most state the each party’s past and future assets and income belong to the party alone, except for intentional joint property. This agreement has no inheritance requirement if the couple is still married when one partner dies and there is also often an alimony waiver. Furthermore, a prenuptial agreement can increase the belief that you and your spouse aren’t fully committed to making the marriage work even when things get difficult.

Do I Need a Prenuptial Agreement?

Approximately 75 percent of American marriages end in divorce, so a prenuptial agreement is a realistic decision to make rather than a romantic one. If you want to protect your assets and finances and avoid heartbreak, grief and stress, a prenuptial agreement is an extremely wise decision to make. Keep in mind that both parties must voluntarily enter into the agreement in order for it to be valid and that no prenuptial agreement can violate criminal law or public policy.

Tips for Ex-Spouses on Successfully Co-Parenting Children

Parenting your children with an ex-spouse is a challenge that involves open communication with someone you don’t get along with, and in some cases, someone you can hardly stand to be in the same room with. Even if this is the case, your children haven’t done anything wrong and they deserve to be cared for by both of their parents in equal measure.

Fortunately the legal team at The Huntsman Firm has some advice for divorced parents on how to successfully co-parent their children without argument or drama:

    • Establish a business-like relationship with your ex
    • Give your ex the benefit of the doubt
    • Do not discuss disputes or speak ill of the other parent around your children
    • Respect the other parent ‘s privacy and don’t tap your children for information about their household, life, friends, income, etc.
    • Both spouses need to acknowledge their children’s sadness, confusion, guilt and feelings of abandonment and talk to them about those feelings
    • Make sure your children know that they are not guilty of anything and both parents love them equally
    • Bury the hatchet, stop being defensive and call a truce
    • Remain a good example for your kids
    • Don’t hesitate to seek professional therapy
    • Keep open communication open with your children

Separate Feelings from Behavior

Being hurt and angry in a divorce is natural, but these feelings shouldn’t dictate your behavior. If you’re upset, don’t vent to your children. Talk to a friend, therapist or another family member if you need to get something off your chest. Always keep your child’s best interests at heart and this might help you keep calm and resist becoming overwhelmed by anger. You can also breathe deeply, practice meditation and exercise to remain stable and collected.

It’s also essential to never, ever put your children into the middle of the situation. Your resentment and bitterness towards an ex is natural, but you need to keep those feelings distanced from your children. Children should never be used as messengers or placed in a mediator position.

Why Hire a Lawyer for an Amicable Divorce?

Handshake man - women

So you are considering a divorce. But you also realize that this is an amicable situation. So why is it necessary to involve lawyers if both parties agree to the terms and conditions of the divorce?

The fact of the matter is, divorces are not usually so cut and dry. And these are the type of things that you will really want to read the small print. Lawyers study for years to be able to understand the wording and significance of different agreements and while you may not want to get anyone else involved, you will most likely be saving yourself future pain and frustration.

Like in most big decisions, you’re agreeing to the terms have some big consequences. You will need the help of someone who can advocate for you for custody rights, the division of property and assets, and other issues. Especially if either party wants to file a modification later on. In that case, you will want to have someone on your side who is familiar with your experience.

Though you may consider the divorce amicable, if it turns out to be not-as-amicable as you thought later on, you are taking some risks. The simple truth of the matter is that in order to protect yourself from being taken advantage of, you need the help of experts. Come to the Huntsman Firm and protect your future.

What is Custody?

In a divorce between two individuals who have children, custody will be determined. In Utah divorce law, there are two types of custodies. Physical and Legal.

Custody can be difficult, but is the result of what is in the child's best interest

Physical Custody

Utah defines physical custody as “where the children live”. This means essentially which parent they spend the majority of their time with, and most “overnights”. There are three distinctions of physical custody.

  1. Sole physical custody

This does not mean one parent has the child or children 100% of the time. In Utah, if you are awarded sole physical custody, you will have the them for at 255 “overnights”. This means that the other parent will still be able to have 110 “overnights” with them as well.

  1. Joint physical custody

Each parent will have the child in their home for at least 111 “overnights” every year. This usually requires that both parents live in close proximity to each other and are able to have an open communication with each other.

  1. Split physical custody

Although rare, split custody is when the court splits children up to live with different parents. For example if a couple gets divorced and they have two kids, one will go with person A, and the other will go with person B. This doesn’t mean the kids will never see each other, it just means they have different permanent addresses.

 

Legal Custody

This type of custody refers to who has the right to make important decisions about the child. Until children are 18 years of age and considered legally adults, there will be plenty of things that need to be addressed by the legal guardian with legal custody. There are two distinct types of legal custody, and they function similarly to physical custody.

  1. Sole legal custody

Sole legal custody is essentially what it sounds like. The court may award sole legal custody to a parent meaning that one parent will be completely responsible for decisions on behalf of the child, and the other parent must defer to them.

  1. Joint legal custody

In this situation, parents must share the right to legal custody. The caveat being that a judge may give one parent the right to make specific decisions for the child, but grant the other parent the right of being the primary caregiver of the child.

This decision will be made by a judge in the best interests of the child.

 

Four Reasons to Get a Divorce Lawyer

Relying on a professional attorney is a necessity

  1. Divorce is stressful enough

Deciding to handle your divorce yourself is a decision bound to bring you unnecessary stress. Not only do you have to deal with the emotional trauma you or your children experience, but you also have to think unemotionally and make sure you are getting a fair deal in the actual divorce. Let a lawyer deal with the legal headaches that come with divorce. They will try to make your experience as pain-free as possible so you can focus more on the important things like taking care of your family.

 

  1. Lawyers are experts

Imagine you are in a plane with your pilot friend who wanted to show off his new flying skills. Suddenly he faints and you are the one in charge of flying the plane. Who would you want to be talking you through landing the plane on the radio? A pilot of course. In the same way, lawyers who have studied and prepared to advocate for years are the people you want giving you advice and guidance. They know the ins and outs of the law and will help you to understand the sensitive issues of your divorce from beginning to end.

 

  1. Little mistakes can have big consequences

If you handle your divorce on your own, there are quite a few risks you are taking. For example, If you accidentally overvalue or undervalue an asset when dividing up property, you may have just unwittingly scheduled more court time in the future to take care of it. Since divorce is a legal agreement, you have to be exact on everything and when you are going through a divorce, there is so much stress attached to it that you might miss little mistakes that will cause you more problems later.

 

  1. Lawyers move the process along.

Going back to lawyers being experts at the law, there is a huge amount of paperwork associated with divorce and you may not understand all of it or be able to fill it all out correctly because of the turmoil caused by the divorce–and life in general. If you accidentally fill something out incorrectly, you will most likely have to extend the courtroom time and allow the divorce process to drag on. Let the experts handle it to insure that your divorce moves as fast as possible.

How Debt is Divided Up

 

When thinking about how to divide assets and property, it is easy to overlook debt, and how it will be divided between the individuals.

If both parties in the divorce are able to come to an agreement about how they will split their debt, the court will usually honor that agreement. However, if they cannot come to agreement about how to divide it, the judge will determine how it is to be divided.

Equitable division

When debt is equitably divided, the judge considers all aspects of the debt, of the divorce, of each individual and their circumstances. It is important to know that debts will most likely not be split down the middle if the judge is the one who has to divide it; it is equitable, not equal. For example, if the item or service is used exclusively by one person, generally, the other will not be forced to pay the debt for it.

Debts entered into during marriage

All debt entered into after the marriage is usually deemed marital debt. The house, a boat, or a car are all things that may have debt attributed to them, and will often  be split between the two parties. However, there are some exceptions. For example, if you and your spouse bought a boat together during marriage, and then you kept it for yourself afterward, you would also be primarily responsible for the debt associated with the boat.  Medical expenses on behalf of any minor children will also be split between the couple.  If one party keeps an item with debt, such as a vehicle with a payment, then both asset and debt may be awarded accordingly.  Parties need to remember that there is usually no benefit without the accompanying burden, and visa-versa.

Debts entered into before marriage, and personal debts

Any debts either party entered into before marriage will generally stay with the individual whose debt it is, so long as it has not been commingled. The same may also apply to debts entered into for solely one person, especially if it is not used as a marital asset. For example, if (while married) you went into debt to buy an expensive personal computer for your own private use, you will likely hold onto that debt upon divorce. Proving this can be difficult sometimes, because it is not always completely clear who had sole use of a product or service.

Legal issues are not  simple.  There is not an easy, bright-line on every issue, espite what a relative or bar-buddy may tell you.  You should get excellent  representation, and you will  at the Huntsman Firm.

 

Contested and Uncontested Divorce

Courtroom One Gavel

In Utah, there are two types of divorce; contested and uncontested. Both may be settled outside of court, and both may require the Court’s intervention.

Contested Divorce

This method is best for those not able or willing to come to some kind of amicable agreement over things like child custody, alimony, and property. It is also used when a petitioner wants a divorce because of some fault their spouse has, or when only one party wants to pursue a divorce. Contested divorces more often go to trial and both parties will be compelled to make a case in front of a judge in that case. Even “no-fault” divorces may end up being contested if the parties cannot come to agreement on the terms of the divorce.

There are some advantages to a contested divorce over an uncontested divorce. For example, if all of the terms of a divorce petition are backed and supported by fact and by applicable law, a party may do better asking a judge to rule than trying to compromise against unreasonable demands. A party who believes their spouse has undisclosed assets or is hiding drug, alcohol, or abuse issues can invoke the process of formal discovery. A trial with rules of evidence—admissible, relevant, credible facts—established–may be the best policy in the long run.

Uncontested Divorce

Negotiations usually occur outside of court in an uncontested divorce. This is often the best option when the divorce is mutual and both sides are able to amicably agree on all important matters such as child custody, parent time, alimony, debt, child support, property division, and other issues. The only time they usually require a court’s attention is for a final approval from the judge.

This approach is usually much faster because there are few, if any, recurring court appearances and usually no lengthy process of legal discovery or preparation for trial. Most uncontested divorces can be completed within the 90 day waiting period from the date the petition for divorce is filed. It can also be much cheaper for both parties than a contested divorce—but beware! Don’t just agree to any old terms with the hope it will all “work out.” It usually doesn’t. Don’t agree to vague terms such as “parent time as the parties agree”.

Mediation can be less emotionally and physically taxing as well, since it is done outside of court in an positive environment, and both parties may come to amicable agreement over important issues. It is often easier on couples with children as well. One of the biggest advantages of an uncontested or mediated divorce is that it puts you in control of your divorce, rather than being subject to the rulings of a judge. It will be better in the long run, as you will be less likely to file a petition for modification later on. Mediation is required in all contested cases. It may be used if a case is only contested in one area, for example.

If you have any questions regarding contested and uncontested divorce, or any other questions about family law in general, don’t hesitate to call the  Huntsman Firm at (435) 628-2846.

 

 

Before Filing for Divorce

Divorce can be an emotionally and physically draining process that lasts for a long time, and can be costly. Before you choose to follow through with a divorce, consider the following.

Divorce is an event that takes place between a petitioner and a respondent. Some common issues that may need to be dealt with in court are child custody, child support, parent time (parental rights), alimony (also known as spousal support), and division of debt, property, and any retirement or pension benefits.

Before filing for divorce:

Select an attorney who is in good standing with the Bar, and whose practice is dedicated to Family Law. Avoid “self-help” schemes. These will cause you untold sorrow later. Avoid the “cheap” or cut-rate lawyers or anyone who guarantees a certain outcome. No responsible lawyer can guarantee any outcome or do a responsible job fora flat fee of any kind. Insist that your lawyer carry errors and omissions coverage (i.e., “malpractice insurance”). Avoid like the plague any who do not.

Be guided by reason and good sense. Good luck whomever you choose.

How Property is Divided in a Divorce

In any divorce, both parties have property that must be divided. In Utah, the general rule for dividing property is equitable, not necessarily equal. There are two types of properties, both of which are divisible in some way: marital property and separate property.

Marital Property

This is property that belongs to the marriage, or in other words, the property that belongs to both parties essentially. This includes things like income earned after marriage, and any property acquired after the marriage. Property that is used to support the marriage in someway that started out as individual property of one party can also be classified as marital property.

Separate Property

This is property that wholly belongs to one party or the other. This can be anything that belonged to one party before marriage, or something that belonged to one party and kept separate throughout the course of the marriage. This can even include things like inheritances given to only one person, or gifts given exclusively to one person.

The most common property divided during a divorce are the home, jewelry, vehicles, and other personal property. Other property can include intangible financial items like income, shares in stocks, and retirement benefits. An important note is that any debt incurred by both parties during the duration of the marriage must also be divided. Marital property must be divided, and separate property will be retained by the respective party.

Utah judges have the benefit of considering several factors in deciding how the property will be divided. These factors considered are the length of the marriage, how the property was attained, the future of each person (who will be raising the children, where they will be living, etc.) and the background of both parties (education level and money earning potential) to name a few. Therefore, the property division may be unequal, but it will be equitable.

If you have any questions on the division of property or anything related to family law, or divorce law in general, don’t hesitate to call the Huntsman Firm at (435) 628-2846.

 

MODIFICATION OF ORDER

A Court enters an Order, sometimes called a “Decree”, after a trial or settlement. The terms of that Order become the law of the case. Property settlement, debt allocation, child custody, parent-time, child support, alimony, and other aspects of a divorcing party’s duties to each other and to the Court are thus established until further order of the Court.

But life goes on. Situations change. Employment, health, relocation, drug or alcohol abuse, incarceration, and many other factors may suggest a need for a new, more workable court order. Sometimes  an existing decree or order simply becomes unworkable or impractical.

There are two ways to modify a court order. One is by stipulation, or agreement. A proposed order filed with the stipulation must show the required basis for modification.

The other is by petition and, if necessary, trial.

In either case the petitioner must prove that there have been substantial and material changes in the lives of a party or children of the parties since the last order, and that a modification would be an improvement for and in the best interests of the children. Do not misuse the legal system by filing orders to show cause or protective orders just for the purpose of trying to obtain a modification.