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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.

 

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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.

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A LICENSE TO PARENT

In our society, we need a license to drive a car on a public street. We need a license to practice law or medicine, to be a professional contractor, electrician or plumber, to hunt deer or to fish a public stream. Even a dog or cat needs a license to survive these days. You need a license to marry.

But you do not need a license to have or raise our precious children.

The law generally assumes that children born into a valid marriage “belong” to the parties to that marriage. Custody, parent time and related legal rights between lawfully married parents generally do not need to be proven, unless there is a divorce or legal separation.

If you choose to sire, conceive, bear, and raise up these treasures, do it right. Love them. Take quality time with them, and lots of it. Choose their other parent with care before creating this important life. Be kind to the other parent.

Kids are damaged when parents fight. It’s not about you. It’s about them. And they know when there is undue stress or abuse of any kind in the home. They rarely, if ever, recover from it.

Children are your trust. Their needs must come before your own, despite the noise you may hear from “modern” counselors of the joys of a self-centered life.

For a better marriage, or when serious strains appear, good professional counseling from a clinical psychologist or a licensed therapist is often helpful. But if all fails, hire a good lawyer to protect yourself and your children.

See our blog “Choose Your Lawyer Well”.

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CHOOSE YOUR LAWYER WELL

In the old days, we duked out our differences. Then we hired surrogates to fight for us—Knights on white horses, perhaps. Now we hire lawyers as our surrogates.

If you are establishing parental rights, getting a divorce, seeking a modification, defending or enforcing a protective order, you will do better if you retain a competent lawyer to represent you. Downloading forms from the internet does not substitute for experienced, knowledge-based advocacy. Neither does following the “advice” of relatives, bar buddies, well-meaning friends, or other amateurs.

Here are  eight questions you should always ask a prospective lawyer before you entrust one with what is valuable to you:

  1. Are you licensed and in good standing with the state bar?
  2. Do you have any history of discipline by any state bar?
  3. Did you graduate from an accredited law school? Where?
  4. Do you carry errors and omissions (i.e. malpractice) insurance? For how much?
  5. What is your hourly rate, initial retainer, and how do you determine billings?
  6. Will you respond to my reasonable inquiries within one business day or as soon thereafter as is possible if it is impossible or impractical to so respond?
  7. Do you focus on family law, or are you a “jack of all trades”?
  8. How long have you been practicing law? How much of that time has been devoted exclusively or primarily to family law?

With these questions you can usually separate the good attorneys from the hustlers before you lose a deposit or get your case so screwed up that it will cost you extra even to get back to square one, if that is even possible.

Always:

  1. Hire an attorney with no bar discipline record.
  2. Hire an attorney who refuses to guarantee a specific outcome. Those “guarantees” don’t exist.
  3. Hire a properly licensed attorney who focuses solely on family law.
  4. Hire an attorney with at least 10 years experience in the practice of family law.
  5. Hire an attorney who is responsible enough to maintain a solid errors and omissions policy.
  6. Insist on a written contract of retention with clear and understandable terms. Don’t ever fall for the old “Give me a thousand dollars and I’ll do your case” ploy. Too often the $1,000 disappears and your case stagnates.
  7. Insist on one business day or less for response to your inquiries, and copies of everything generated or received in your case.

At THE HUNTSMAN FIRM, we strive to represent you well, effectively, and with full disclosure.