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.
Four Reasons to Get a Divorce Lawyer
/7 Comments/in Advice, Legal Information /by huntsman_adminDeciding 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.
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.
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.
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
/2 Comments/in Legal Information /by huntsman_adminWhen 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
/0 Comments/in Legal Information /by huntsman_adminIn 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
/0 Comments/in Advice, Legal Information /by huntsman_adminDivorce 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
/0 Comments/in Legal Information /by huntsman_adminIn 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
/0 Comments/in Legal Information /by huntsman_adminA 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.
A LICENSE TO PARENT
/5 Comments/in Legal Information /by huntsman_adminIn 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”.
CHOOSE YOUR LAWYER WELL
/4 Comments/in Advice, Legal Information /by huntsman_adminIn 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:
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:
At THE HUNTSMAN FIRM, we strive to represent you well, effectively, and with full disclosure.
Don’t Let the Gray Put You in the Red
/1 Comment/in Advice, Legal Information /by huntsman_adminAccording to Constance Gustke of “Business Day” (NY Times, 28 June, 2014), “Gray” divorce is growing faster than any other demographic, some 800,000 by 2030.
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