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.
Custody Settlements for a Special Needs Child
/in Advice, Legal Information /by huntsman_adminRaising a child with special needs requires patience, love and of course, money. While raising children in 2016 is expensive by default (approximately $245,340 from birth until age 18} the cost of raising a special needs child can often quadruple those expenses. Doctors’ visits, hospitalization, medical equipment, therapy, special education, medications, caregivers– these costs add up to hundreds of thousands, and sometimes millions, of dollars. This financial stress often puts serious strain on a marriage and as a result, parents of special needs children have a higher divorce rate than the overall population.
Divorce is already a complicated situation when there are children involved. Adding a special needs child into the mix creates an even more delicate situation. Custody decisions must be made completely based upon what is best for the child, and there are various factors you should consider when faced with this choice.
Come to an agreement regarding the child’s needs
Parents often disagree about how to raise children and address their needs. With a special needs child, it is even more essential to come to an agreement quickly. Determine where the areas of disagreement are in order to properly address the future needs and care of the child as part of the divorce case.
Determine if the special needs child will require support after age 18
The severity of disabilities can vary greatly. When a case is extreme, there is no debate whether or not the child will need continuing support as an adult. Child support will be continued indefinitely in this case. However, you cannot always determine whether the child needs support beyond high school. If the court does not recognize the need for permanent support then the burden will be on the primary caregiver. When an adult disabled child needs support beyond the lives of their parents it increases expenses and creates unique challenges.
Create a parenting plan
Whichever party receives full custody is going to know more about the child’s disability. If you are sharing custody, it is vital to educate your ex-spouse on the daily care of your child. You need to spell out all the essential information: managing behaviors, monitoring food, adapting physical surroundings, medication schedules or the preferences of a nonverbal child.
Educate yourself on public benefits planning
Your child might be eligible for Supplemental Security Income (cash benefits for individuals with disabilities) so alimony and child support must be organized within your child’s benefit eligibility. A family law attorney will work with a special needs attorney and an experienced financial adviser to make sure you receive all of your child’s monetary entitlements. Child support payments can affect government benefit programs like SSI and Medicaid, so it’s critical to address these issues during the divorce process.
Additional Questions
There are several other questions you and your ex-spouse need to address when handling the custody of your special needs child. These questions include:
Deciding Who Gets Custody of Pets in a Divorce
/in Advice, Legal Information /by huntsman_adminWhen you think of custody in a divorce, it’s likely that children come to mind immediately, but what about pets? Nowadays, most people consider cats and dogs to be family members, rather than just another asset to divide up. We all love and care about our animals and don’t want to be without them, so how do we deal with custody? Since there is no actual law about pet custody in a divorce, this can be tricky, and the issue of pet custody can often cause almost as much drama and distress as custody of children.
Tips from Our Legal Experts
If you’re going through a divorce and you’re worried about losing custody of your furry loved one, here are a few realistic questions you should ask in order to make a wise decision:
Who is living in the family house?
If one of you is going to stay in the house your pet is used to, that might be a sign that they should have prominent custody. Pets, especially dogs, need space to run around and play. If one of you is moving to a small apartment, it is smarter and healthier for the dog to stay in a house with a backyard and space to be active.
Who spends the most time with the pets?
Consider who it is that takes the pet to the vet, who buys food and supplies, who takes the dog on a walk and who just generally spends the most time playing and caring for the pet. If one party is more involved with the animal than the other, it’s in the pet’s best interest for that person to receive full custody. It’s also normal for the ex-spouse who is awarded custody of children to receive custody of pets as well, since keeping family pets around establishes some normalcy for the children.
Whose lifestyle is more conducive to caring for a pet?
People who travel often for work or deal with a demanding job and long commute don’t have as much time to take care of their pets. If your lifestyle doesn’t have room for a pet, don’t risk neglecting your cat or dog and accept that your ex-spouse is a better caretaker for the animal.
What is your motivation for wanting the pet?
Think about it: Do you really want the pet or are you just trying to get custody out of resentment? While a cat or a dog is not the same as a child, they are still living things that deserve your affection and full commitment, so if you don’t really want the pet to live with you it is best that you don’t fight for custody.
Is a joint-custody situation possible?
In some cases, when both parties are equally dedicated, people can agree to joint custody over pets. This means that if you are the person with full custody and you go on a vacation or you’re unable to take care of the pet due to illness, you can rely on your ex-spouse as a pet-sitter. The situation ensures that your pet will always be taken care of by someone who loves them and never left alone for a long period of time.
Should I Opt for a Prenuptial Agreement?
/7 Comments/in Advice, Legal Information /by huntsman_adminWe 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
/0 Comments/in Advice, Legal Information /by huntsman_adminParenting 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:
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?
/16 Comments/in Advice, Legal Information /by huntsman_adminSo 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?
/1 Comment/in Legal Information /by huntsman_adminIn 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.
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.
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.
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.
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.
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.
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
/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
/3 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
/2 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.