Stopping Foreclosure In Utah

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Utah Bankruptcy

11 Sunday Dec 2022

Posted by Bankruptcy Lawyer West Jordan Utah in Utah Bankruptcy

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What is Bankruptcy?

Bankruptcy is a legal way to get rid of most of your current debt, stop harassment from creditors, and start fresh. It is a federal court process by which you can discharge some of your debt because you are unable to repay those debts. There are usually two ways bankruptcy is declared:

 You file for bankruptcy
 Your creditors ask the court to declare you bankrupt

Bankruptcy usually takes two forms: Chapter 7 and Chapter 13.

Chapter 7 Bankruptcy

Chapter 7 Bankruptcy, otherwise known as “straight bankruptcy” or “liquidation,” allows the debtor to sell their non-exempt assets to pay off their debts; after that, the debtor will be free from all dischargeable debts.

There are specific eligibility requirements that you must meet to qualify for Chapter 7 bankruptcy. Some of the scenarios where you wouldn’t be eligible for Chapter 7 include when:

 Your income is too high (this is determined using the “means test”): In such cases, your case may be filed under chapter 13 bankruptcy
 You have the ability to repay your debt
 You dismissed a bankruptcy case within the past 180 days
 You previously filed for bankruptcy and the time frame to file another bankruptcy case has not passed
 You attempted to defraud creditors

Under Chapters 7, 11, 12, and 13 of the U.S. Bankruptcy Code, some or all of your existing debt can be discharged. A “discharge” means you are not personally liable for the money and do not need to pay it back. The creditor you owe, such as a hospital or credit card company, cannot call you or take collection actions against you once the debt is permanently discharged.

Note: Most people will file a Chapter 7 bankruptcy to remove credit card debt and seek debt relief. Some debts may have a bankruptcy discharge but you might have to keep personal liability for other debts.

Debt Discharge Comes After Selling Off Assets

Chapter 7 bankruptcy often involves the liquidation (or selling off) of assets in order to pay past debts. Only after this process is completed can you have qualifying debts discharged. Some property is protected from liquidation by federal or state bankruptcy exemptions. In fact, many people who file for Chapter 7 can keep a majority of their property. It will be up to your attorney and bankruptcy trustee to decide what you can keep, what deals you can make with the creditor, and what you need to give up in your bankruptcy case.

Once assets are liquidated, the courts tend to discharge debts right away. In the whole Chapter 7 bankruptcy process, this happens about four months after you first file in bankruptcy court. Keep in mind you need to complete educational classes on debt management in between filing and receiving the discharge, or the judge may dent your debt discharge.

What Happens After a Chapter 7 Bankruptcy?

Those who pursue a Chapter 7 bankruptcy should be aware of some potential problems or concerns. Many forms of debt cannot be discharged under Chapter 7 bankruptcy, including:

 Government-funded student loans
 Some forms of tax debt
 Federal tax liens
 Child support
 Alimony or spousal support
 Debts for personal injury or death arising from a motor vehicle accident
 Fines and penalties for violating the law
 Certain tax-advantaged retirement plans
 Cooperative housing fees

Potential applicants for Chapter 7 bankruptcy should be aware that even private student loans are rarely discharged without a special showing of undue hardship. This can be hard to prove but can happen if you become permanently disabled and cannot work.

Property That Can Be Taken Before a Discharge

Bankruptcy is intended to help you get relief from the burden of debt, so removing all of your property would be counterproductive, as you would need to rebuy a car or other items.

Property that is considered necessary for modern life may be exempt from creditors taking it back. But, you may need to petition a judge to stop them.

Some examples of the property a creditor might try to take back include:
 Motor vehicles or a second vehicle
 A second home or vacation home
 Expensive clothing
 Household furniture
 Jewelry
 Tools used in your work
 Musical instruments (unless you can prove you are a professional musician)
 Cash, bank accounts, stocks, bonds, and other investments
 Pensions
 A portion of the equity in your home
 A portion of earned but unpaid wages
 Public benefits that have accumulated in a bank account
 Damages awarded for personal injury
 Family heirlooms

While this list looks scary, it is important to remember that creditors can try to take these items, but they generally will not succeed. Much of this property is protected by Utah’s exemptions or wildcard exemptions, as it is essential for work or daily life.

A creditor will receive a notice saying your debts have been discharged. They can try reaffirming these items or sue you for debt if they do not agree with the discharge.
Once the discharge of debt is in place, things are considered final. A creditor cannot sue you, try to take your property, or harass you.

How to Get a Debt Discharge

Filing for bankruptcy is not an easy decision to make, but sometimes it’s necessary. You can start the process by asking an attorney what property is excluded in a Chapter 7 bankruptcy, and what could be included. They can tell you what a creditor might come after and how to legally and effectively stop them.

Chapter 13 Bankruptcy

Chapter 13 Bankruptcy requires you to make a repayment plan to pay creditors over a period of three to five years. This method is usually used if your income exceeds the limits set for Chapter 7 bankruptcy.

You also need to show you comply with the eligibility requirements before you can file Chapter 13. These include:

 You are not a business organization
 You took credit counseling
 You have not dismissed a Chapter 13 case within the past 180 days
 You have not filed for a Chapter 13 within the past two years

Use Reaffirmation to Stop Creditors Taking Your Property

Some creditors can keep their rights over your property even following a discharge. One way this can happen is through what is called a “lien.” A creditor can use a lien to enforce payment or take back the property.
For example, let’s say you keep certain secured property, such as your car. Your creditor may seek to reaffirm the debt with a lien. This “reaffirmation” takes place if you and the creditor agree:
 You will remain liable for this debt
 You will pay back some or all of a debt
 You pay even though the debt would be discharged in bankruptcy

The creditor will not repossess the property as long as you continue to pay the debt
Reaffirmation must occur before the order of discharged debt is entered. If you want to keep a car or other property, you need to discuss this with the creditor early on. Your attorney can handle this for you and try to negotiate a fair payment schedule.

Solving Bankruptcy Problems

Following a bankruptcy, you may need to correct any inaccurate reports from former creditors. To do this, you will need to engage in a process with the credit bureau.

This can entail contacting former creditors for verification of the satisfaction of debts. Even when these issues are resolved, those who have completed a bankruptcy can still expect to:
 Pay higher credit rates
 Have higher down payments
 Need to produce a co-signer when attempting to secure new credit

These complications are not the end of the world. They may require using a mortgage broker when seeking to purchase a house.

Even though it may be counterintuitive, there are benefits to bankruptcy when you have debts that you can’t pay. You will get a clean slate, and most negative outcomes will fade from your record within a few years. But whether or not you should file for bankruptcy is heavily dependent on an individual’s specific circumstances.

For this reason, it can be very beneficial to speak with a bankruptcy attorney in Utah who can explain the benefits and downsides to filing for bankruptcy in your particular situation.

Filing for bankruptcy is a complicated, emotional process. It takes more work and time than most people realize, but it can also be the right solution for significant debt issues.

The Honest Benefits of Bankruptcy

Consult with a bankruptcy attorney or educate yourself on your options — you may find that filing for bankruptcy could help you out of a difficult financial bind.

Most filers find that bankruptcy eases stress by stopping:

 Collections agency calls or harassment
 Debt lawsuits from creditors
 Wage garnishment (creditors taking money from your paycheck)
 Foreclosure (unless the property has already sold)
 Repossession of some property (in Chapter 13)
 Bankruptcy will also:
 Get rid of many debts (in Chapter 7)
 Protect some property from being sold (depending on exemptions in your state)
 Put an end to growing debt and give you a fresh start to turn things around

Is Bankruptcy a Good Idea for You?

The decision to file for bankruptcy is a serious one. There are several considerations worth examining closely before getting started:

 The impact on your future ability to access credit, lenders, or low interest rates
 The impact on your credit report
 Whether you could lose assets (if you file for Chapter 7)
 The differences in the time and expense associated with each form of bankruptcy
 Whether you are eligible for certain forms of bankruptcy
 Whether you can retain specific valuable assets from repossessions (many states have exemptions)

Considering other impacts can be critical in deciding whether to file for bankruptcy or which form is a better option. Some bankruptcies may:

 Fail to discharge credit card debts
 Impact your pension plans or other assets
 Create financial issues for co-signers
 Stop foreclosure
 Feel like a significant invasion of your personal privacy with the bankruptcy court and working with your bankruptcy trustee

Any of these concerns may impact the desirability of the relief provided. However, none of these reasons are worse than staying in overwhelming debt or making your financial situation worse. Sometimes, you simply need debt help and cannot get there alone. Bankruptcy will give you a fresh start, and you can work towards the financial situation you want.

Despite what many think, filing for bankruptcy is not the end of the world. It can actually be the fresh start you have been looking for. The laws of bankruptcy were drafted with the purpose of giving people a second chance, and not to punish them.

But that doesn’t mean you should file for bankruptcy at the first sign of financial distress. Declaring bankruptcy will have short- and long-term consequences and should only be done as a last resort. So, when should you file for bankruptcy?

Before You File, Evaluate Your Situation

When should I file for bankruptcy? This is a question most people under financial distress ask. You should probably consider other options before going this route. These options include:

 Getting credit counseling
 Trying to negotiate your debt or make a payment plan with your creditor
 Sticking to a budget

If, however, other options don’t seem feasible, filing for bankruptcy may give you the ability to get a fresh start.

Declaring Bankruptcy Will Affect Your Credit Score

In exchange for discharging your debt, filing bankruptcy shows everyone that you may be a credit risk, which will be reflected in your credit score. Thus, getting a loan, a mortgage, or a credit card may be very difficult after declaring bankruptcy.

You should note bankruptcy filed under Chapter 7 will remain on your record for 10 years. If you filed under Chapter 13, it would stay on your credit report for 7 years. After that, it is erased.

Your Co-Signers May Be Required to Pay Your Debts

Co-signers are people who agree to pay your debt if you are somehow unable/unwilling to pay the debt. If you file a Chapter 7 bankruptcy, your creditors are allowed to go after the co-signer even if your bankruptcy case is successful.

Under Chapter 13, your creditors can’t go after your co-signer as long as you make your regular payments per your agreement.

Filing for Bankruptcy during a Pandemic

Filing for bankruptcy during a pandemic or other national emergency may be challenging, as operational hours for courts may change. So, first, make sure your local bankruptcy court is open and taking cases before you file. You should also expect a delay in the processing of your case.

The Federal Government May Intervene

Under rare situations, the federal government may pass laws that could affect your bankruptcy case during a pandemic. For instance, the federal government passed a stimulus bill in response to the COVID-19 pandemic.

Under this stimulus bill, several temporary changes were made to the bankruptcy code. Some of these changes include:

Previously, the debt limit to be eligible to file for bankruptcy under the Small Business Reorganization Act (SBRA) was $2,725,625. Under this stimulus bill, the debt limit was increased to $7.5 million for a period of one year.

The bill also changed the definition of “income” for Chapter 7 and 13 bankruptcy filers. Accordingly, payments received from the federal government that are related to COVID-19 are not considered income for purposes of bankruptcy.

People with federal student loans can, without penalty, defer their payments for six months through September 30, 2020.

People who already filed a Chapter 13 and are under a repayment plan can make modifications if they can show “material financial hardship” because of the pandemic. The modifications include an extension of payments for seven years.

If your debts have become unmanageable or you’re facing foreclosure on your home, you might be thinking about declaring bankruptcy. While bankruptcy may be the only way out for some people, it also has serious consequences that are worth considering before you make any decisions. For example, bankruptcy will remain on your credit report for either seven or 10 years, depending on the type of bankruptcy. That can make it difficult to obtain a credit card, car loan, or mortgage in the future. It could also mean higher insurance rates and even affect your ability to get a job or rent an apartment.
The following are interesting things to know about filing bankruptcy. The decision to file bankruptcy can be tough so here are things you need to consider or know about before you make that decision:
• Deadlines: Deadlines are critical in bankruptcy court. The rules in bankruptcy are very complex, can be technical, and all case deadlines must be met. Failing to file the appropriate forms or documentation on time may result in your case being dismissed or delayed.
• You need to qualify to file for bankruptcy: Many people who would have qualified for a Chapter 7 discharge before the 2005 changes must now use Chapter 13 instead, which involve repayment of some of your debts. This is determined using the Means Test.
• Repayment Plans: In a Chapter 13 bankruptcy case a repayment plan that must be filed with the court. The court has a process that will determine exactly what income and expenses you have, and then calculate the reasonable expenses and monthly repayment amount for your case. In Utah this plan must be submitted to the court and confirmed.
• DIY Bankruptcy: Representing yourself in bankruptcy can be a huge mistake. The laws and the corresponding rules in bankruptcy can be very confusing, and many common errors could cost you a chance at a new financial start. An experienced attorney can help you determine the right laws to help you, represent you at the hearings and the meetings with creditors, and get most of the time save you money in the end.
• Focused Court: The Bankruptcy Court is a federal court which exclusively deals with bankruptcy cases. These courts are located around the United States, and they only handle bankruptcy cases and matters related to this legal area. You reside in an area that is served by a bankruptcy court.
• You get your own Trustee: The Department of Justice and the Bankruptcy Court in Utah will appoint a trustee in your case. This trustee will be responsible for overseeing your specific case and ensuring that all of the documentation is filed. The trustee is not in favor of either the consumer or creditors, but is an officer of the court instead.
• Get the best attorney: Choosing the right attorney that you can afford to represent you in bankruptcy court is very important and can affect the outcome of your case. You want a lawyer who will aggressively defend you and work hard to overcome any objections that may be presented by your creditors or the trustee. Experience is also very important, so you want an attorney who is very knowledgeable in bankruptcy law and that has been in the game for a long time.
• Your goal is a discharge: Another interesting things to know about filing bankruptcy is that a bankruptcy discharge is an order issued by the bankruptcy court stating which of your debts are forgiven. Usually this will include most unsecured debts that have not been repaid are eliminated in the process unless you have reaffirmed your obligation.
Utah Chapter 7 Bankruptcy or Utah Chapter 13 Bankruptcy
There are several situations where a Chapter 13 is preferable to a Chapter 7. A Chapter 13 bankruptcy is the only choice if you are behind on your mortgage or business payments and you want to keep your property, either in Utah or another state, at the end of the bankruptcy process. A chapter 13 bankruptcy allows you to make up their overdue payments over time and to reinstate the original mortgage agreement. In general, if you have valuable property not covered by your Utah bankruptcy exemptions that you want to keep, a chapter 13 filing may be a better option. Also, people file Chapter 13 bankruptcy because they have too much income to file a Chapter 7 bankruptcy or have the kind of debt that is non- dischargeable in a Chapter 7 (e.g. certain taxes). However, for the vast majority of Utah residents who simply want to eliminate their heavy debt burden without paying any of it back, Chapter 7 provides the most attractive choice.

Advantages to a Utah Chapter 7 filing:
• You receive a complete fresh start. After the bankruptcy is discharged the only debts you owe will be for secured assets on which you choose to sign a “Reaffirmation Agreement.”
• You have immediate protection against creditor’s collection efforts and wage garnishment on the date of filing.
• Wages you earn and property you acquire (except for inheritances) after the bankruptcy filing date are yours, not the creditors or bankruptcy court.
• There is no minimum amount of debt required.
• Your case is often over and completely discharged in about 3-6 months.
Disadvantages to a Utah Chapter 7 filing
• You lose your non-exempt property which is sold by the trustee. If you want to keep a secured asset, such as a car or home, and it is not completely covered by your Utah bankruptcy exemptions then Chapter 7 is not an option.
• If facing foreclosure on your home, the automatic stay created by your Chapter 7 filing only serves as a temporary defense against foreclosure.
• Co-signors of a loan can be stuck with your debt unless they also file for bankruptcy protection.
• If you filed a prior case and received a discharge of your debts, you can only file a second Chapter 7 bankruptcy case eight years after you filed the first case.
Advantages to a Utah Chapter 13 payment plan:
• If you choose and you can afford the payment plan, you can keep all your property, exempt and non-exempt.
• While debts are not canceled as in a Chapter 7 discharge they can be reduced under a Chapter 13 payment plan.
• You have immediate protection against creditor’s collection efforts and wage garnishment.
• More debts are considered to be dischargeable (including debt you incurred on the basis of fraud and credit card charges for luxury items immediately prior to filing).
• If the Chapter 13 plan provides for full payment, any co-signers are immune from the creditor’s efforts.
• You have protection against foreclosure on your home by your lender as long as you meet the terms of the plan.
• You have more time to pay debts that can’t be discharged by either chapter (like taxes or back child support).
• You can file a Chapter 13 at any time.
• You can file repeatedly.
• You can separate your creditors by class where different classes of creditors receive different percentages of payment. This enables you to treat debts where there is a co-debtor involved on a different basis than debts incurred on your own.
Disadvantages to a Utah Chapter 13 payment plan:
• You create a payment plan where you use your post bankruptcy income. This ties up your cash over the Chapter 13 plan period.
• Legal fees are higher since a Chapter 13 filing is more complex.
• Your plan and therefore your debt will last for 3 to five years.
• You are involved in the bankruptcy court process for the term of the 3-5 year plan.
• Stockbrokers and commodity brokers cannot file a Chapter 13 bankruptcy petition.
Filing for Bankruptcy without an Attorney
You are not required to have an attorney to file for bankruptcy. In some simple Chapter 7 cases, you can file on your own (it’s called filing “pro se,” meaning that you represent yourself) if you are willing to put in some time and research. However, in many cases, it’s a good idea to have a bankruptcy attorney. The importance of an attorney depends on the complexity of your case and whether you are filing a Chapter 7 or Chapter 13 bankruptcy.

When Is it Feasible to File Without an Attorney?

What Is a Priority Debt?
Bankruptcy is an excellent tool that helps many people overwhelmed with debt get back on their feet. But it might not discharge (get rid of) everything that you owe. Priority debts get paid first if money is available to pay creditors. More importantly, they’re non-dischargeable—they don’t go away in bankruptcy.
Debts that you’ll remain responsible for include (many, but not all of these debts are priority in nature):
• child support, spousal support, or another domestic support obligation
• fines, penalties, and restitution imposed as punishment for violating the law
• some taxes
• intoxicated driving debts
• homeowners’ association dues assessed after filing for bankruptcy
• retirement plan loans
• money borrowed to pay off non-dischargeable tax debt (for instance, the credit card debt incurred after using your account to pay a tax bill), and
• debts determined non-dischargeable in a previous bankruptcy.
A student loan won’t get wiped out either unless you can prove to the court that it would be a hardship to make you pay it. Most people are unable to meet the standard, however. It can be costly to file and litigate the lawsuit necessary to prove the case, as well. Additionally, any creditor can file a non-dischargeability complaint asking the court to determine that a debt shouldn’t be discharged in your case. To win, the creditor will need to prove that one of a variety of situations exists.
• You committed fraud (for instance, you wrote a bad check or lied about your income on a credit application).
• You charged a luxury item less than 90 days before you filed for bankruptcy.
• You intentionally harmed someone or damaged their property.
• You embezzled funds or stole money.
• You failed to list all creditors in your bankruptcy petition.
If you suspect that you might have non-dischargeable debts, or that a creditor might file a lawsuit against you, it’s probably not a good idea to represent yourself. Instead, consider speaking with a bankruptcy attorney. The lawyer can consult with you about the status of your debt and whether proceeding forward is in your best interests. However, keep in mind that even the simplest Chapter 7 requires you to fill out extensive paperwork, gather financial documentation, research bankruptcy and exemption laws, and follow the local rules and procedures.

When Is it a Bad Idea to File Bankruptcy Without an Attorney?

There are many reasons to file a Chapter 13 bankruptcy instead of a Chapter 7 bankruptcy. You may want to file a Chapter 13 bankruptcy because you wish to catch up on mortgage arrears, get rid of your second mortgage, cram down (reduce) your car loans, or pay back non-dischargeable priority debts, such as back taxes or support arrears. Or maybe you make too much money to qualify for a Chapter 7 bankruptcy. No matter what your reason is, most Chapter 13 cases are too difficult to file on your own. Chapter 13 bankruptcies are a lot more complicated than Chapter 7s. In addition to filling out the official bankruptcy forms (and perhaps some local forms), you must also design a proposed repayment plan, something that is very difficult to do without the expensive software that most attorneys use. Also, certain actions such as stripping your second mortgage or cramming down a car loan will usually require filing additional bankruptcy motions and paperwork with the court. As a result, even some attorneys will limit their bankruptcy practice to Chapter 7 cases because they feel they are not qualified to handle a Chapter 13. In fact, an overwhelming majority of Chapter 13 cases filed without an attorney get dismissed by the court. So if you are planning to file a Chapter 13, it is a good idea to hire a qualified attorney.

If You Have a Complicated Chapter 7 Case

Certain Chapter 7 cases are more complicated than others. Your Chapter 7 will usually be more complex if you own a business, have income above the median level of your state, have a significant amount of assets, or have creditors who can make claims against you based on fraud. If any of the above applies to you, you risk having your case dismissed, your assets being taken and sold, or facing a lawsuit in your bankruptcy to determine that certain debts should not be discharged. In that case, it is advisable to hire an attorney to handle your bankruptcy.

If You Are Not Comfortable Doing it on Your Own

If you have a simple Chapter 7 case, bankruptcy can be an intimidating and time-consuming process. You will need to accurately fill out many forms, research the law, and attend hearings. If you are not comfortable with any aspect of the bankruptcy process, you should consider hiring an attorney who will prepare the forms, attend the hearings with you, and guide you through the process.

Filing for Bankruptcy in Utah

Are you a resident of Utah and thinking of filing for Chapter 7 or Chapter 13 bankruptcy? If so, you will have to participate in credit counseling before you file, complete the bankruptcy petition and other required forms, and file those forms in the Utah bankruptcy court. After filing, you must complete debtor counseling before receiving your discharge. Although most of the bankruptcy process is governed by federal law, there is some Utah-specific information you will need to know before filing.

Pre-Bankruptcy Credit Counseling and Pre-Discharge Debtor Education in Utah

In order to qualify for Chapter 7 or Chapter 13 bankruptcy, you must show that you received credit counseling from an agency approved by the U.S. Trustee in Utah within the six month period before you file for bankruptcy. You’ll also have to take a debtor education course before you get a bankruptcy discharge.

Utah Bankruptcy Exemptions

Utah has a set of bankruptcy exemptions which help determine what property you get to keep in Chapter 7 bankruptcy and play a role in how much you repay unsecured creditors in Chapter 13 bankruptcy. Some states allow debtors to choose between the state exemption system and a set of federal bankruptcy exemptions but Utah is not one of them. In Utah, you must use the state exemptions–the federal bankruptcy exemptions aren’t available.

Completing the Bankruptcy Forms in Utah

When you file for Chapter 7 or Chapter 13 bankruptcy, you must complete a bankruptcy petition, a number of schedules containing detailed information about your finances, and several other forms, including a lengthy form known as the “means test” (for Chapter 7) and a similar form for Chapter 13.

Finding Means Test Information for Utah

When you file for bankruptcy in Utah, you must compare your income to the median income for a household of your size in Utah. If your income is less than the median, you will be eligible to file for Chapter 7 and, if you choose to file for Chapter 13, you can use a three-year repayment plan (rather than five years). This is called the means test. If your income is above Utah’s median income, you still might qualify for Chapter 7, but you’ll have to provide detailed information about your expenses and payments on secured debts in order to find out. Most Chapter 13 filers also have to provide this information.

Speak to an Attorney Before You File for Bankruptcy

If you are considering filing for bankruptcy, it is very important you have all the information you need, especially since bankruptcy laws tend to be detailed and complicated. Speaking to a bankruptcy attorney in Utah is the best way to ensure your rights are protected.

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Family Law Attorney In Utah

10 Saturday Dec 2022

Posted by Bankruptcy Lawyer West Jordan Utah in Family Law Attorney In Utah

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How Do I Collect Child Support From An Out Of State Non Custodial Parent?

Domestic Violence

Domestic violence used to be a secret to be “kept in the family” or swept under the rug. But it’s now more prevalent in news and media than ever before. As a result, a lot of people are thinking about what constitutes domestic violence. Why do people stay in abusive relationships? How can family and friends help a loved one leave an abusive partner?

Domestic Violence, Legally Defined

Domestic abuse is a top public health concern. Homicide by an intimate partner is one of the leading pregnancy-associated causes of death, according to research. And yet many people do not understand the scope of abusive behavior. Early in their intimate relationship, victims may not realize they are experiencing domestic violence. They fail to take action and then it escalates.

The National Domestic Violence Hotline defines domestic abuse as “a pattern of abusive behaviors used by one person to gain or maintain control over another person in an intimate relationship.”

The victim is often a spouse (male or female). But they can also be a dating partner, a child or parent, a family member, or a roommate. It is a person with whom the abuser is in close proximity.

Most people think of domestic abuse as battering or assault, but there are several types of abuse:

 Physical abuse is most likely to be seen by coworkers or health care providers. Victims often find ways to hide the evidence of the abuser’s violent behavior. But physical violence can lead to physical injury requiring medical care.

 Sexual abuse may not be understood by the victim as abuse until it becomes sexual violence. Non-consensual sex, even within marriage, is sexual assault. Young people, in particular, need to be educated about dating violence.

 Emotional abuse causes the victim to feel intense emotional distress. The abuser may verbally demean and socially humiliate their victim. They may engage in name-calling. Emotional abuse damages the victim’s self-esteem and sense of self-worth. Stalking, harassment, and threats are forms of emotional abuse; They are designed to instill fear in the victim.

 Psychological abuse is controlling behavior that damages the victim’s mental health. They may think they are going crazy. They may develop post-traumatic stress disorder (PTSD).

 Economic abuse or financial abuse is an extension of the abuser’s need for control. They may prevent a spouse from earning money or from having access to money. An abuser may steal money from an elder parent with whom they live.

Punishing Domestic Violence

While law enforcement once turned a blind eye to intimate partner violence, state laws now require an arrest and mandate penalties. Restraining orders are easier to get, at least initially. And federal and state laws are in place to prevent abusers from owning guns.

Survivors of domestic violence can sue their abusers in civil court to recover damages for their injuries.

Unfortunately, these remedies are only available after the abusive behavior or physical violence has already occurred.

Preventing Domestic Violence

Domestic abuse nonprofits and governmental agencies exist in every state. They provide information and training on how to identify the warning signs of abuse. They provide practical resources to help survivors of domestic violence create a safety plan to exit dangerous relationships. They provide referrals for safe places to shelter and offer victim hotlines in a variety of languages. And they undertake legal advocacy.

Help is a phone call away. But as many victims know, that phone call and those first steps can be extremely dangerous. Their lives are often at stake. If the U.S. wants to end the scourge of family violence, it needs to provide human services resources and physical and financial support to help victims break free once and for all.

Stopping Domestic Violence

There are a number of ways victims and other witnesses can stop domestic violence, which is defined as a violent act committed by one family or household member against another. For example, an abused spouse may petition a judge to issue an “ex parte” (or restraining) order against the abuser. In any event, victims should understand that they have options to living in an abusive household.

We can all take steps to stop domestic violence. If you or a loved one are trying to leave an abusive relationship, it’s important to remember that it’s the abuser who needs to change. However, your abuser may be unable or unwilling change and you should never have to endure abuse from anyone. Your number one priority should be safety for you and your loved ones.

Thinking of leaving an abusive relationship. Where to start?

First, plan for your safety. Contact the National Domestic Violence Hotline at 1-800-799-7233 or your local domestic violence outreach organization to learn more about how to create a safety plan or to discuss how to approach a friend about your concerns for his or her relationship. In addition, you or your loved one may want to attend a domestic violence support group.

Not feeling safe at home. Where to go?

If you need to immediately leave a home you share with your abuser, you can call a local domestic violence agency. They can give you information about how to enter the local domestic violence shelter or confidential motel voucher program. Shelters are frequently full and you may have to leave your area to find a safe, confidential shelter. If your abuser has not been trying to find you or is highly unlikely to try to find you, you may consider leaving to a regular, homeless women’s shelter.

Left the abuser. What can you do to stop him or her from coming after you?

A great legal option that can help to stop domestic violence is a protection order, which is a court order that says your abuser cannot come within a certain number of feet of you, your home, your car, your work, or your school. This doesn’t prevent an abuser from stalking or attacking you, but it does allow you to call the police for assistance if he or she violates the order.

How can you stop domestic violence? What can you do?

The best answer to the question of how to stop domestic violence, and the only way to permanently do so, is to end the cycles of control and abuse in relationships. This involves teaching children to respect their romantic partners by demonstrating respectful, healthy relationships with our spouses and partners.

We can also take more concrete steps in our daily lives to help achieve that goal, including:
 Calling the police if you see or hear evidence of domestic violence.
 Speaking out publicly against domestic violence (for example, if you hear a joke about beating your spouse, let that person know you aren’t okay with that kind of humor).
 Referring your neighbor, co-worker, friend, or family member to a domestic violence outreach organization if you suspect they are being abused.
 Considering reaching out to your neighbor, co-worker, friend, or family member that you believe is being abusive by talking to them about your concerns.
 Educating others on domestic violence by inviting a speaker from your local domestic violence organization to present at your religious or professional organization, civic or volunteer group, workplace, or school.
 Encouraging your neighborhood watch or block association to watch for domestic violence as well as burglaries and other crimes.
 Donating to domestic violence counseling programs and shelters.
 Being especially vigilant about domestic violence during the stressful holiday season.

Filing a Domestic Violence Lawsuit

Most acts of domestic violence result not only in criminal liability, but also civil liability for the perpetrator. This means that if you’re a victim of domestic violence, it’s possible to sue your abuser in civil court for your injuries under tort law.

Tort law provides civil legal remedies for people who are injured in some way by another, usually in the form of financial damages or injunctive relief (the court ordering someone to do or not do certain acts).

Criminal Proceedings Do Not Bar a Victim from Suing in Civil Court

A common misconception is that once a person has been tried for something in criminal court, he or she cannot be tried in civil court for that same claim. This isn’t true. Take the Goldman v. Simpson case, for example. O.J. Simpson was acquitted in criminal court for the murder of Ron Goldman, but Goldman’s parents sued Simpson for money damages in civil court and prevailed.

Just because your abuser has been tried in criminal court or you have obtained a restraining order against him or her does not mean you cannot sue your abuser in civil court. The concept of double jeopardy does not apply to civil cases, but only when there are multiple criminal prosecutions for the same crime.

Suing a Family Member

Traditionally, courts would not allow family members to sue each other for torts. This law was based on concerns about breaking down the family unit. Today, most state courts have moved away from this, reasoning that if family members have torts claims against each other, the family unit is probably already broken down, and those injured parties should have their day in court.

As it stands, Louisiana is the only state in the U.S. that still bars spouses from suing each other, except in certain circumstances. However, spouses can generally sue each other for intentional torts. An intentional tort refers to a deliberate action that causes harm to another person. Since many forms of domestic violence constitute intentional torts, such as battery, assault, and psychological abuse, these acts could constitute claims for a lawsuit even in a jurisdiction that would normally bar suits between family members. Another tort claim, the intentional infliction of emotional distress, may also be available if the abuser was stalking, threatening, or destroying property.

Things to Consider Before Filing a Domestic Violence Lawsuit

Often, victims of domestic violence have been robbed of their sense of control and of their emotional outlet. Suing your abuser can give them a sense of control and emotional relief. The types of damages potentially available to domestic violence victims include:
 Lost wages
 Medical expenses
 Pain and suffering
 Punitive damages (only available in some states)

Keep in mind that a great deal of stress is involved in any lawsuit. Lawsuits involving family members can be even more stressful because of the strain placed on family ties. It is often hard enough for victims to even make a police report or file for a restraining order against their abusers. Taking the abuser to court may be just as difficult. However, once victims realize their position, they may be ready to fight back. The act of taking their abuser to court may act as a form of closure for victims—a way to leave the past behind and start fresh.

Litigation can be very expensive. However, courts can force the abuser to pay your fees. Although unusual in these types of cases, attorneys sometimes work on a contingency basis in lawsuits involving money damages. If an attorney agrees to represent you under this fee arrangement, you won’t pay unless you win the case. To put it bluntly, when considering whether to file a domestic violence lawsuit, it matters whether your abuser has money or assets available to pay damages.

Orders of Protection and Restraining Orders

Survivors of domestic violence have several civil and criminal protection or restraining order options to protect themselves from further abuse. Although these orders won’t necessarily stop an abuser from stalking or hurting a victim, they permit the victim to call the police and have the abuser arrested if the order is violated.

Emergency Protection Orders

In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is required (or requested) to leave the home. Often, this person is the abuser, although the police can be mistaken about who the aggressor is. In about one-third of states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident.

In some states, the police can give the victim an Emergency Protection Order (EPO), which is a short-term protection order typically given to a victim by the police or magistrate when his or her abuser is arrested for domestic violence. An EPO is generally for limited period, such as three or seven days, which allows the victim time to request a longer-term protection order.

Protection Orders

All 50 states and the District of Columbia have statutes for some form of protection order. However, states call this protection order different things. For example, Illinois, New York and Texas call them protection orders or orders of protection, whereas California calls the same thing a restraining order, and Florida calls it an injunction for protection against domestic violence, it is simply known as a Protection Order in Utah.

A protection order is different from an EPO because it’s longer term, typically for one to five years, and in extreme circumstances, for up to a lifetime. A victim can renew the protection order if the victim still feels threatened by his or her abuser.

A protection order may include many different provisions, including:

No Contact Provision: Prohibiting the abuser from calling, texting, emailing, stalking, attacking, hitting, or disturbing the victim.

Peaceful Contact Provision: Permitting the abuser to peacefully communicate with the victim for limited reasons, including care and transfer for visitation of their child.

Stay Away Provision: Ordering the abuser to stay at least a certain number of yards or feet away from the victim, his or her home, job, school, and car. The stay-away distance can vary by state, judge or the lethality of the situation, but is often at least 100 yards or 300 feet.

Move Out Provision: Requiring the abuser to move out of a home shared with the victim.

Firearms Provision: Requiring the abuser to surrender any guns he or she possesses (about 2/3rds of states) and/or prohibiting the abuser from purchasing a firearm.

Counseling Provision: Ordering the abuser to attend counseling, such as batterer’s intervention or anger management.

Protection orders may include children, other family members, roommates, or current romantic partners of the victim. This means the same no contact and stay away rules apply to the other listed individuals, even if the direct harm was to the victim. Some states even allow pets to be protected by the same order, as abusers may harm pets to torment their victims.

Some states include as part of the protection order visitation and custody for children of the victim and abuser. These are generally temporary and can be modified by divorce or other future family court orders.

In order to obtain a protection order, you need to file the required legal papers with your local court, and follow your state law to present evidence at your hearing and to serve your abuser. The police can sometimes serve the papers for you.

Restraining Orders

A restraining order is an order requiring parties to a lawsuit to do or not do certain things. It may be part of a family law case, such as a divorce, or other civil case. Although this isn’t the same as a “domestic violence restraining order,” which is summarized above, domestic violence can be a factor in the underlying family law case.

Restraining orders may be requested “ex parte” meaning that one party asks the court to do something without telling the other party. If the restraining order is granted ex parte, then the other party is later permitted a hearing to present his or her side of the story. This is often the process for protection orders as well. Since restraining orders also vary by state, it’s important to consult with an attorney familiar with the law where you live. If a criminal case is pending, the district attorney may request or the judge may order a protection order for the victim of the crime.

Violation of Protection Orders

Violation of a protection order can be treated in one of three ways: as a felony, misdemeanor, or contempt of court. Felony charges are typically reserved for either repeat or serious violations. Sometimes violations are considered both contempt of court and a new domestic violence charge. In many states, police policy is to arrest violators of these orders automatically.

Enforcing Orders of Protection in Different States

Domestic violence survivors may move as part of a plan to keep them safe from a former abuser. The Full Faith & Credit Clause of the Constitution and federal law require valid protection orders to be enforced where it’s issued and in all other U.S. states and territories as well. Therefore, if an abuser stalks a victim in his or her new state of residency, the police must uphold the protection order from another state.

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Estate Probate Attorney

09 Friday Dec 2022

Posted by Bankruptcy Lawyer West Jordan Utah in Estate Probate Attorney

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Who is a probate attorney?

Jimi Hendrix, the legendary guitarist, died without a will in 1970, leaving behind an estate that’s currently valued at more than $160 million. And now, more than five decades later, the bitter battle over its control rages on.

This is a prime example of what could go wrong when people die intestate – or without a will. It leaves your loved ones vulnerable, and more often than not, you’ll have all sorts of people coming out of the woodwork to claim a stake.

You don’t have to be a wealthy celebrity to have a will. If you have any assets that matter a great deal to you, it’s always better to decide while you’re still alive who should get them. If you don’t, then a probate lawyer would have to step in after your death to help your surviving beneficiaries get their share of your estate.

So, what is a probate lawyer, and what can they do for you? Here’s everything you need to know.

What does probate mean?

Probate is a legal term that refers to the process of proving a will. It means making sure that the deceased’s estate is distributed fairly among the rightful heirs, whether or not there was a will left behind.
If there was no will left behind, the process must go through probate court to decide how the assets will be distributed among the deceased’s loved ones. For smaller estates, the probate process doesn’t usually take long. The matter can be concluded in a matter of weeks.

However, probate for bigger estates can take several years, especially when individuals with legitimate claims to the property and assets file petitions in court to contest the will. So, as you can expect, this could end up dragging out the process even longer.

What does a probate lawyer do?

Probate lawyers wear many hats. The exact role they play in a probate process ultimately depends on whether or not the decedent had drafted a will before their death. Here’s what a probate lawyer does in both instances.

The role of a probate attorney when there’s a will

If an individual dies testate or with a legal will, the concerned parties may retain a probate lawyer in an advisory role to offer guidance to the concerned parties. These include the beneficiaries or the estate executor.

For instance, the attorney may inspect the will to check that it wasn’t created under duress or in a way that would contravene the interests and wishes of the person. This is particularly important if the decedent was elderly and suffered from dementia.

The role of a probate attorney when there’s no will

If an individual dies intestate, the decedent’s estate is distributed among the rightful beneficiaries according to the intestacy laws in the state where the property is located. Although these laws vary widely, in most states, the surviving spouse receives all the property.

In such instances, a probate attorney may be hired to help the estate administrator – who plays a similar role to the executor – in the distribution of the assets according to the state laws.

Keep in mind that regardless of what the deceased’s wishes were or the needs of the family members, the probate lawyer can only act within the confines of the state’s intestacy laws.

If one of the deceased’s relatives wants to become the estate’s administrator, the probate lawyer can help file renunciations with the probate court from all the other relatives. A renunciation is a legal statement from all the other beneficiaries renouncing their right to administer the decedent’s estate.

Other roles of a probate lawyer

Aside from that, a probate attorney also helps the administrator/executor to:
 Settle the deceased’s bills and debts
 Collect and manage life insurance proceeds
 Determine whether the estate owes any taxes
 Find and secure all the deceased’s assets
 Get the decedent’s assets appraised
 Manage the estate’s checkbook

Keep in mind that wills and estate planning generally fall within the same area of law. However, there’s a distinct difference between a probate attorney and an estate planning lawyer.

The former works with living clients on how their estates should be administered when they die, while the latter deals with the estate administration process after the individual dies.

So, what percentage does a lawyer get for settling an estate? The answer to this varies widely and will likely depend on the complexity involved in the probate process.

One lawyer may charge you a flat fee while another may prefer to bill you by the hour. However, most charge a percentage of the estate’s value. This could be anywhere between 10 and 40 percent of the settlement amount.

When does an estate have to be probated?

Contrary to what you might believe, not every estate has to go through the probate process. It is only required when there are no other means through which the decedent’s property can be transferred to the estate heirs.

If the individual had taken steps to distribute the assets before death, the estate doesn’t need to be probated. For instance, life insurance policies and retirement accounts usually have a designated beneficiary. These go directly to them on the death of the principal, subsequently by-passing the probate process.

The same goes for bank accounts with a TOD (transfer on death) or POD (payable on death) beneficiary designation and jointly owned assets with survivorship rights. In the latter, the surviving owner automatically inherits the deceased’s share of the property or asset.

In case you’re wondering how to avoid probate, here are three easy steps you can take:
 Name beneficiaries on all the accounts that you own. These include bank, brokerage, retirement accounts, and life insurance policies, and pension plans.
 Create a trust that leaves your assets and property to your beneficiaries upon your death. This allows for asset distribution without getting the courts involved.
 Hold your property jointly with your spouse or partner. That way, ownership automatically passes to them upon your demise.

Things to do before you hire a probate lawyer

Funeral expenses. Sorting through personal possessions. Emotional healing.

Life after the death of a loved one comes with a certain set of challenges. But haggling over property or money shouldn’t be one of them.

According to Forbes, over $30 trillion will be inherited in the next 30 years. And given the money-motivated culture we live in, its no wonder children and grandchildren all have their hands out — waiting for a piece of the estate pie.

Hiring a probate attorney can help avoid many of the issues associated with probating a will. It also gives ailing family members a sense of peace in their final days.

Here are the things to do when hiring a probate attorney and how it might help salvage family ties.

Choose An Estate Planning And Probate Attorney Based On Your Situation

No two wills or estates are exactly the same. Everyone’s wishes are different. And everyone places value on different things. Some people leave property, money, and other valuables to family and friends. While others have more specific requests. Depending on your age, you may need to choose legal guardians for your children in your will.

Find an estate planning and probate attorney that specializes in your type of estate planning. Some lawyers are highly skilled in handling large sums of money or real estate. If you own a family home or business, this type of estate planning and probate lawyer is best.

Many people make the mistake of hiring an attorney who does estate planning and probate “on the side”. Avoid this whenever possible. After all, you wouldn’t hire a dentist who performs cosmetic surgery on the weekends. And you shouldn’t hire an attorney who just dabbles in estate planning. Find a probate attorney experienced in your type of circumstance.

Are They Sympathetic To Your Needs?

Like any other business, an estate planning and probate attorney is providing a service that you’re paying for. But probating a will is about more than just the money side of things.

Find an attorney who is sympathetic, available, and compassionate. If you’re dealing with a probate attorney, it means you’re also dealing with the loss of a loved one.

Emotions are running high. You need a probate attorney who can patiently answer your countless questions without annoyance. Signs that your probate lawyer may not be the best-fit include:
 Unanswered phone calls and questions
 Making rushed decisions
 Not explaining the details of the process
 Unavailable
 Insensitive to your situation
 A quality probate attorney will exhibit the following characteristics:
 Sympathetic to your needs and your recent loss
 Explains the probate process in detail
 Available to answer questions
 Doesn’t take sides in the probate process
 Forthcoming with all information

Use your gut instinct when choosing an estate probate attorney. While getting through the probate process should be swift and smooth, it shouldn’t be rushed. Don’t be afraid to interview several lawyers before making a final decision.

Collect All Necessary Paperwork

The probate process doesn’t fall squarely on the shoulders of the attorney. You need to bring important and necessary information to the table. The more organized and prepared you are, the smoother the process will go.

This holds true for both before and after the probate process.

If you’ve been named the executor of the will and are entering the probate process, bring these documents to your first meeting:

 Copies of the death certificate
 Last will and testament and any codicils
 Bank statements and other financial documents
 A list of your loved one’s assets
 A list of the names, addresses, and contact information for individuals named in the will

You may not have all of this information readily available for your first meeting, and that’s okay. But the more information you can collect, the fewer questions your probate lawyer will have.

Be Realistic About Potential Family Resistance

Family drama is all too common during the probate process. Even the most detailed wills are questioned and picked apart based on greed or entitlement.

Do you have a strained relationship with your siblings? Did your loved one leave all of their most valued possessions to a single family member? If you sense there’s trouble ahead when it comes to carrying out your loved one’s wishes, you’re probably right. Sharing this information with the probate attorney is essential.

While you can’t prevent family members from contesting the will, knowing you may meet resistance can help both you and the probate lawyer prepare. You can collect additional documents that support what’s already outlined in the will.

The executor of the will (if it’s you) is responsible for distributing property, money, and assets according to the wishes of the deceased. But they’re also responsible for paying off any debts and creditors of the deceased. This can be a stressful position.

Being named as the executor means the deceased trusted you with carrying out their final wishes. But don’t be surprised if this puts you in a compromising position with other family members.

Understand What Probate Is And If You Can Avoid It

Most people believe that probate is inevitable following the death of a loved one. But this isn’t always the case. Probate is the legal distribution and transfer of assets following someone’s death. And is often used when a person owns property or real estate only listed in their name.

Even if their will leaves the property to a family member, legal steps are required to carry out this inheritance. Probate is common when handling large, complex estates that include property, large sums of money, or multiple assets.

If your loved one created a simple will leaving mostly possessions to family and friends, probate may not be necessary. Avoiding probate means the following:
 The ability to keep the proceedings private and out of the court system
 Less legal fees and taxes
 A more speedy and less complex settlement of the will
 A reputable attorney will advise you on whether or not the will in question needs to be probated.
 Handle Your Loved One’s Estate With Ease
 Handling the death of a loved one is difficult in and of itself. When you add carrying out their final wishes to the mix, it can be emotionally draining.

Hiring a probate attorney can help ease your mind during this difficult time. Finding the right lawyer means the difference between easy probate and a long, drawn-out process.

If you’re sold on the idea of hiring a probate attorney to help you through the Will or probate process, but you’re not sure how to go about hiring the best attorney these are some great tips to follow when hiring a probate lawyer that will ensure that you find the best probate lawyer for you. Ask the right questions. Once you have a few free consultations set up, you want to ask the right questions during these consultations, to make sure that you fully understand the attorney’s qualifications. Ask questions such as:

Do you have any client testimonials?

What would you do in certain situation?

What do you charge?

Check out the reputation. Client testimonials are great ways to get a feel for customer satisfaction, but they’re not the only way. Sometimes, lawyers will only show you the best reviews that they get, not necessarily the reviews that give the most accurate picture of customer satisfaction. For this reason, you should consider asking friends or coworkers for suggestions of probate lawyers that they have used in the past. This feedback will probably be honest and it will come from people that you can trust.

Finding the right probate lawyer can be a difficult process, but it doesn’t have to be! If you follow these tips, you will be able to find the right lawyer for you!

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Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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08 Thursday Dec 2022

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A good probate lawyer is a resource for executors. They can guide you through the process step by step and give you documents that you can sign. In addition to assisting with the estate’s administration, a probate lawyer can assist you in paying your debts. If your loved one didn’t have any savings or investments, your probate lawyer can help you sell the assets to pay off the outstanding debts. In addition to assisting you with the administration of the estate, a probate lawyer can also prepare income tax returns and determine the inheritance taxes for your loved one. In addition to handling the estate’s checking account, a probate lawyer can collect the proceeds of a life insurance policy.

Probate lawyers are also able to help you with other estate-related matters. The probate process can take years to complete, so you may want to hire a lawyer who has years of experience. This is especially true for larger estates with large assets. However, this is an additional cost you can avoid if you have the money to pay a probate attorney. It is not recommended that you hire a lawyer for every small matter, but it is a good idea to make sure that you’re getting the right help to avoid any unforeseen delays.

Probate lawyers are an essential part of any estate administration. Not only do they help you prepare a will, but they also handle all the legal proceedings. They will make sure that the deceased person’s wishes are followed and their heirs are properly compensated. This is why a probate lawyer can be a great asset. A probate lawyer can help you with many types of estates, and they can help you with any kind of probate case.

While hiring a probate attorney can be expensive, it’s well worth the expense. It can be difficult to know whether or not to hire a lawyer who only charges a nominal fee. A probate attorney can help you to avoid the additional costs of a lawyer and the time. There are also several benefits of hiring a probate attorney. You will have the ability to get an efficient and inexpensive probate service. Most attorneys specialize in this area.

A probate attorney can handle a variety of tasks, including paying debts and preparing income tax returns. A probate attorney can also help you determine the applicable estate taxes and pay them on your behalf. Finally, a pro will make sure that the executors follow all the instructions of the will. If the executors are not willing to do so, a probate attorney can be a great asset to the estate.

Intestate individuals will often leave a will that isn’t valid. A probate attorney can examine this will to ensure that the will was created under duress or was in the best interests of the decedent. A probate attorney can also check the will to make sure that the decedent’s wishes were carried out. A probate attorney may even help the executors of an estate if the surviving spouse is unable to perform the task.

The probate attorney will help you transfer assets to beneficiaries. Using a probate attorney will ensure that the assets are distributed according to the will. A probate lawyer will be able to handle the details of the will and state laws. They will also help you close the probate if a will contest is filed. In addition to ensuring that the will is valid, a probate attorney will also help you deal with creditors and contesting it.

Nobody wants to call a probate lawyer. People only call when they are dealing with the loss of a family member and need help through the process. In the blink of an eye, a decedent’s assets can be heisted, pillaged, squandered, or frozen. Probate attorneys help to execute the deceased’s estate plan or intestacy laws so that this doesn’t happen.

But how do you choose the right probate attorney? Probating an estate is a process governed by many legal and family-level processes. When hiring a probate lawyer, there is no science or art apart from asking the right questions.

In cases in which probate is required, the executor of the estate or the next of kin cannot take the actions necessary to administer the estate without the authority granted by the probate court.

Probate is a complicated process that requires executors to prepare forms, meet deadlines, keep records, generate reports, submit filings to the court, and serve notices to creditors, heirs and local newspapers.

A Probate Attorney Will Prevent Personal Liability For Your Actions As Executor

Personal liability can arise in a probate situation if the executor makes an error in marshaling assets, generating reports, paying creditors and heirs in the wrong order or the wrong amounts, failing to obtain court authority before taking certain actions, or failing to give notice to the proper individuals in the proper manner.

The Probate Process Will Be Completed More quickly With An Attorney

The process can be extended by as much as several years if the executor does not prepare each form correctly the first time and give proper notice to all necessary parties, obtain the necessary signatures of heirs and interested creditors, and file the appropriate documents before each deadline passes.

A Probate Attorney Will Save Time For The Executor

Even if you hire an attorney, much of your valuable time will be dedicated to gathering and liquidating the estate’s assets, keeping records, paying bills, and making lists of creditors. Having to learn the law and local court procedure and generate inventories, accounting, and reports in a form that will be accepted by the court may make an already difficult task insurmountable.

A Probate Attorney Will Minimize The Potential For Disputes

Potential for expensive and time consuming probate litigation is significantly diminished if the probate estate in question is handled effectively, quickly, and efficiently by a professional.

If the estate is being handled in an unprofessional manner, creditors and heirs are more likely to be involved.

Hiring A Probate Attorney Will Minimize Stress On The Family

The net effect of speeding up the probate process, reducing the amount of time that the executor must personally dedicate to the case, and heading off any disputes in a professional manner is to minimize the amount of stress that the family of the deceased must deal with at a time when emotions are already high.

Families can be torn apart when money enters the equation.

If the executor is seen as acting in his or her own best interest at the expense of the heirs,
or as failing to competently handle the estate, this can cause interpersonal problems with loved ones.

Hiring an attorney will place a third party between the executor and the heirs and will allow the executor to focus on spending time and energy on his or her family.

I believe that there are essential questions to ask an attorney before hiring them to represent you:

What is the focus area of your practice?

Whether you are the decedent’s heir, beneficiary, or executor, you need to work with a probate attorney with real experience and expertise in the field. Specialty in estate planning and probate handling is a strong suit that’ll help streamline the process.

What is the job as a probate attorney?

 Estate management and distribution,
 Tax planning, and
 Conflict-free Will execution.

Have you executed a will before?

An estate planning attorney may yet have zero experience in will execution. Ensure to get a positive answer before signing them on.

My loved one died without a will.

Do I need a probate case?

Probate happens whether or not there is a will. The work of the probate lawyer will be a little different in each case.

Takeaway:
 If the deceased had a Will, the executor should adhere to it.
 If there is no will, intestacy laws apply.
 In both cases, legal counsel streamlines the process.

How do you charge for your services?

Attorneys don’t list fees on their sites, so seek clarity before on this matter before you hire. Sometimes they use standard fees or hourly rates. Get the answers in advance to avoid unexpected expenses and nasty surprises after the probate process.

How long does probate take?

The answer to this depends on the size of the estate. Smaller estates can take a few months, while larger estates can take up to a year or more to probate. As one of the questions to ask an attorney, this probe helps weigh their field expertise.

What can I expect during probate?

Assuming you have no legal background, you’ll depend on the attorney to be transparent and proactively communicate through the process. This question helps to evaluate whether they are committed to transparency.

What are the duties of an executor?

If you are an executor named by the decedent or appointed yourself as so in a situation of intestacy, the probate attorney should help you understand your functions. They should help you manage assets, pay taxes and debts, and distribute funds to heirs and beneficiaries.

How do we handle creditors?

Another question that might help this meeting is how to deal with outstanding debts or financial obligations. When executing a will or intestacy requirements, all estate creditors are entitled to reimbursement from the estate’s proceeds. Your probate lawyer should draw up a plan for attaining liquidity and paying creditors.

What do I do if someone is mishandling the assets?

Soon after a donor’s death, beneficiaries, heirs, or even executors can mismanage the estate. A probate attorney should provide legal assistance to stop, remove these persons, or get compensation for the wasted finances.

Do you have expertise in estate planning?

If the deceased left a pour-over Will, it means that the assets mentioned be put in a trust. A probate attorney with estate planning or trust administration skills can be of great assistance.
How do I avoid probate?

When planning your estate, it’s important to remember that not all assets go through probate when you die. An estate planning attorney can help to create a will and plan your estate with strategies such as joint tenancy and trusts.

How do I reduce probate costs?

Probate cost reduction strategies should be top among the questions to ask a probate lawyer. If they know their job and are experienced in it, they should develop testator strategies such as paying debts and funeral planning.

How do you avoid probate disputes?

As a will executor or self-appointed estate executor, your job will not necessarily be a smooth sail. You may come face to face with angry beneficiaries and family members. A probate lawyer should be a fair arbitrator.

Which court handles probate? How do I start the process?

The sooner you start and get done with the process, the better. The process begins when you file a petition in the county where the deceased last lived. Finding the best probate lawyer makes the process much less stressful.

What do I do if challenges arise during the probate process?

Because probate cases involve the division of family finances, problems sometimes arise with this process. There may be allegations of undue influence or coercion that should be resolved before the final distribution.

Creditors can make claims that the executor does not believe he or she is eligible. Measurement problems may arise. Your attorney can review the legal issues surrounding your case and provide you with legal advice.

How can you be of assistance to a will executor?

A probate lawyer should work with executors throughout the process. He/she submit the will for probate, make filings for court proceedings, issue notices to heirs, beneficiaries, relatives, and creditors as stipulated by the law, and help executor in Inventorying probate assets.

How do I deal with insurance?

Your lawyer should help you claim if your deceased loved one had a life insurance plan. Sometimes the proceeds are paid directly to beneficiaries, but other times, they are paid to the estate probated.

How can a probate lawyer help the family?

A probate lawyer can help to dispute a will if you suspect its authenticity. They can help, via the courts, remove a will executor who is biased or mismanages the estate.

Have you handled a case like mine, and what did you experience?

Sometimes the will has very ambiguous clauses or gifts that can trigger intestacy. Jurisdiction problems, Will challenges, and a beneficiary’s death are also other issues that can complicate probate. The best probate attorney should have experience in these matters.

Need a Second Opinion?

There are times when you need a second opinion from another attorney. If you are currently in litigation, consider the following:
 Why is this taking so long?
 Is it your lawyer?
 Do you wish your attorney was more like your opposing counsel?
 Why is this costing so much?
 When will this be over?
 When should you settle and for how much?

If you have questions that your attorney is not answering, or the litigation has taken unexpected twists and turns, you should seek a second opinion.

What is the cost of a second opinion?

While many individuals ask for a second opinion after receiving a medical diagnosis, these same individuals feel hesitant to do so in a legal case. However, individuals are usually entitled to seek the advice of an attorney of their choice in order to receive a second opinion or other legal counsel.

Public Policy Considerations

An important public policy is to allow individuals to be able to have access to legal resources that they trust. This includes hiring an attorney whom the client trusts. Another important public policy consideration is being able to freely enter into a contract. Therefore, clients who retain the services of an attorney are usually entitled to ask someone else for a second opinion.

Reasons to Ask for a Second Opinion

There are several reasons why a client may seek a second opinion. For example, a client may feel confused about a particular legal issue. He or she may not fully understand the rights that he or she has in a particular situation. The client might want to learn about alternative options to the recommendation by his or her primary attorney. Getting a second opinion often allows a client to make decisions from a more informed standpoint.

Benefits of Seeking a Second Opinion

A client who seeks an opinion from another attorney may more thoroughly understand an issue after he or she receives the second opinion. The opinion may be confirmed by another legal professional, providing the client with greater confidence in the decision. Alternatively, the second opinion may result in the client wanting to go in another direction. If a law firm does not have sufficient resources, it may skimp on more expensive charges, such as hiring expert witnesses. However, a lawyer who offers a second opinion may explain whether such expenses are worth the cost or will make a significant difference in the case. Getting a second opinion on a case involving money damages for a settlement can also help the client learn if his or her expectations are in line with the reality of such cases.

While clients generally have the right to seek another opinion, there may be certain situations in which their lawyer is not providing the proper representation to the client. In these situations, it is often best that the client learn this information as soon as possible in order to make a change in counsel before too much damage is done.

For example, if the lawyer is giving the impression that he or she is too busy by not returning phone calls, providing rushed answers that do not take into account individual facts and details or always referring the client to someone else, the lawyer may not be prioritizing the case. If the lawyer does not have very much experience in the subject matter or has not conducted enough research to fully understand the legal issues, he or she may not be able to provide competent legal representation.

Another warning sign is if the lawyer has not filed a complaint, answer of important motions. Filing deadlines are strictly adhered to and a lapse can result in damage to the client’s case. Another red flag is if the attorney is pushing the client to a decision because that is the fastest way out, such as pleading guilty or accepting a settlement if these are not in the best interests of the client.

Precautions

Clients are quite often stuck with the representations that their lawyers make on behalf of their clients. Losing the case and then claiming inadequate counsel may not successfully reverse the course of action. A lawyer can impact a person’s freedom, finances, job, family and other important aspects of a person’s life, so it is important that the client is able to trust the lawyer.

In small areas, it is important that the client clearly determine any conflicts of interest before providing confidential information to another lawyer. In this way, he or she can avoid revealing information to a lawyer who may represent an adverse party.

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8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
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If I Adopt My Wife’s Child Will We Still Get Child Support?

How Do I Collect Child Support From An Out Of State Non Custodial?

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8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
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How Do I Collect Child Support From An Out Of State Non-Custodial Parent?

07 Wednesday Dec 2022

Posted by Bankruptcy Lawyer West Jordan Utah in How Do I Collect Child Support From An Out Of State Non-Custodial Parent?

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How Do I Collect Child Support From An Out Of State Non-Custodial Parent?

If a non-custodial parent moves out of state, or already lives out of state, rest assured you can still get the child support your children need. Having one parent live in a different state can make the process trickier, but there are ways to find your ex and make sure they pay child support. Family court orders are enforceable across state borders, so it does not matter where a parent lives. Child support services can help you, and family court judges can hold your ex in contempt of court or enforce any existing child support order. If there is not already a court order in place, then you need to file with the state you live in now before seeking child support from someone out of state.

First Steps To Enforcing Child Support Payments

No matter where the custodial parent lives, they have many options for going about this process. This can be an easy process or a difficult one, depending on whether your ex is cooperating or trying to hide.
Your first steps may include:
• Finding out the other parent’s current address from relatives or friends
• Hiring a private investigator
• Using locator resources from your local child support office

These would all be viable options if your ex did not tell you where they were moving. Under the Uniform Interstate Family Support Act (UIFSA), sometimes called “Interstate Action,” states must help you find your ex for missing child support. This act also prevents multiple states from ordering child support and helps you find the other parent if they move away.

Child Support State Services: The Basics

You can choose to work with your local Child Support Enforcement Agency (CSEA) or directly with your state. Generally, you should pick one of these options and not both, so there are not duplicate cases in progress. In some states, you may need to start the process with your CSEA, and they will refer it to the state.

It is essential to know that the state you live in is the “initiating state,” and they will contact the “responding state” as the case progresses. You do not need to contact the state your ex moved to — only the state or CSEA office in the state you live in.

Using Parent Locator Services

Every state has a parent locator services. The local child support offices have access to resources such as:
• Federal new hire data
• State new hire data
• Driver’s license change of address information
• Unemployment insurance information
• Worker’s compensation filing
• Criminal and civil court records
• Credit bureau data
• Bureau of Motor Vehicles or DMV information
• Public assistance applications (such as applying for food stamps)

Essentially, if your ex tries to work, get a place to live, use a credit card, or apply for government assistance, agencies can find them. Once the other parent’s address is found, the courts have a way to contact them, and the enforcement of child support can begin.

Using Your Ex’s New Job for Child Support Payments

An easy way to enforce child support orders when the other parent is out of state is to garnish wages. You can have the courts send a garnishment order directly to the other parent’s employer, and the child support will come straight out of their paycheck.

Under federal law, all employers must honor child support garnishment orders from other states. Your ex’s employer can’t refuse to garnish an employee’s wages for child support just because the garnishment order comes from another state.

Uniform Interstate Family Support Act (UIFSA)

Every state has passed some version of the UIFSA. This law is designed specifically to enforce child support orders from one state against a parent who lives in another state. Filing a claim under UIFSA usually involves hiring an attorney or working with your local child support office. It enables you to contact relevant people in the other parent’s state to enforce your child support order, such as:
• The state’s local courts
• Child support agencies
• The other parent’s attorney

The courts and authorities in the other state must enforce your child support order — just as if it was created in that state. This can take time, so it is helpful to start the process right away. It can take months or over a year to get child support cases to court when legal action is needed.

Pressing Charges for Unpaid Child Support

Many states also have criminal laws that address unpaid child support orders. If a parent refuses to pay child support as ordered, you can take action. However, if they cannot pay because of financial issues, there are other paths to take that do not involve criminal charges. You or an attorney can contact your local prosecutor’s or district attorney’s office. They can file criminal “nonsupport” charges against the other parent, even if they live in another state.

Extraditing a Parent Back to Your State

In some cases, your state can “extradite” or bring the other parent back to your state, but only if they are charged with a child support crime.

The felony nonsupport charges vary state by state, and can result in:
• Arrest
• Jail or prison time
• Home detention or house arrest
• Probation

The process will involve steps to find the parent and use strategies to get your children’s support money. Rest assured that crossing state lines will not stop your ex from paying the child support your family needs.

Understanding Child Custody Laws in Utah

Some parents who file for divorce may seek full custody of their children. While Utah laws do not recognize or use the term “full custody,” parents can file a petition for “sole legal/physical custody.” Here’s what you need to know about gaining sole legal/physical custody of your children in Utah.

What is Sole Legal & Sole Physical Custody?

Sole legal custody means the custodial parent is the primary decision-maker regarding the well-being of the child. With sole physical custody, the minor children will live with the custodial parent more than 255 overnights each year. The non-custodial parent will be permitted to spend time with minor children as per an agreement between both parents. In the case where parents disagree on a parent-time schedule, one will be ordered by the court.

A parent-time schedule is the minimum amount of time the non-custodial parent is entitled. The non-custodial parent will be responsible for making decisions during the time they are with the child.

How is Sole Legal Custody Determined?

This is generally the arrangement parents strive for when they seek “full custody.” There are many types of child custody arrangements, and there several factors that the courts will examine when making a custody decision.
• The moral and financial conduct of each parent
• The child’s relationship with each parent
• Each parent’s capability and desire to care for the children
• Each parent’s willingness to allow continuous and frequent contact with the children
• The children’s relationship with extended family members and the significant impact on their best interests.

In child custody cases, the courts will also consider any evidence of domestic violence, neglect, and physical, sexual, or emotional abuse that involves the child, parent, or other household members of the parent.

Filing for Sole Legal Custody

First, every child custody case must start with a court-filed petition and state your case as to why you should be granted sole legal custody. Filing for custody is complex, and the laws can be challenging to understand without legal assistance. Having an experienced lawyer on your side can help you make the right decisions regarding your children’s best interests.

Utah Child Custody Laws

There are more children of separated or divorced parents in the United States today than ever before. With all of the emotion involved in a separation or divorce, parents sometimes fail to consider their children’s desires when making custody decisions. However, under Utah custody laws judges often consider an older child’s preference when determining custody.

Physical and Legal Custody in Utah

Parents can work out their own custody arrangements or go to Utah family court and have a judge decide their case. In either situation, a custody order must address both physical and legal custody and meets a child’s needs.

“Physical custody” is where the child lives. A parent with physical custody primarily lives with the child. Parents can share physical custody (called “joint physical custody”) or one parent may have “sole” or “primary” physical custody.

Your custody order will dictate how much time each parent spends with the child. Parents with joint physical custody will spend substantial, but not necessarily equal amounts of time with the child. The parent who spends the most time with the child is typically designated as the “custodial parent”. The other parent is called the “noncustodial parent.”

“Legal custody” refers to a parent’s right to make major educational, medical, religious, legal, or cultural decisions on the child’s behalf. Like physical custody, parents can share legal custody or one parent may have sole decision-making power over the child. In situations where parents share legal custody, the custodial parent will still have the final say on decisions where the parents can’t agree.

Establishing Visitation Schedules

Under Utah custody laws, your custody order must set forth a visitation schedule covering weekly, monthly, holiday, and summer visits. Both parents are entitled to regular time with their child and neither parent can prevent visits. Even in cases where a parent has struggled with substance abuse or physical violence, a judge may award that parent visitation – usually supervised.

A noncustodial parent without joint custody is entitled to minimum visitation under Utah’s custody laws. Generally, this equates to one weeknight per week with the child and overnight visits every other weekend. A judge can award a parent additional visitation time, but not less. The Utah Courts website provides more information on child custody and parent-time in Utah.

In limited circumstances where a child’s safety and well-being at issue, a judge may grant one parent only supervised visits. Supervised visits take place at a designated location or agency. A parent will be required to have his or her visits supervised until a judge can be sure a child is safe in that parent’s care.

In situations where parents share legal custody, the custodial parent will still have the final say on decisions where the parents can’t agree.

Best Interests of the Child Factors in Utah

Utah courts decide child custody whenever parents can’t come to an agreement on their own. Yet even in cases where parents agree on custody and visitation, a judge will review a custody agreement to ensure it serves a child’s best interests. Utah family courts must consider several factors when deciding child custody in Utah, including:
• the child’s physical and emotional needs
• the child’s relationship with each parent
• the distance between the parents’ residences
• each parent’s physical and mental health
• the child’s ties to the community, sibling relationships, and relationships with extended family members
• each parent’s willingness to encourage a relationship between the child and the other parent
• either parent’s history of domestic violence
• the child’s preference if of a sufficient age and maturity, and
• any other factor the court deems relevant to custody.

When Will the Utah Family Court Consider a Child’s Preference?

A child’s preference is one of several factors a judge will weigh in a Utah custody case. The child’s age and maturity matters. Specifically, a judge will give more weight to an older child’s preference, such as a child over 14. Generally, a judge won’t give much consideration to a child’s wishes if the child is under 10. In one Utah family court case, an 11-year old boy stated a preference to live with his father, but the judge said that an 11-year old shouldn’t have control over where he lives.

Judges will also look at the reasons a child prefers to live with one parent over the other. In one case, a father with custody of two boys moved them from their hometown and away from their school, friends, and other family members. The children wanted to live with their mother to be close to friends and family, and to continue going to the school they knew. The court found that these were valid reasons to want to live with their mother and gave the children’s preferences significant weight in the custody decision.

On the other hand, if a child’s reasons for wanting to live one parent are immature, for example, because one parent is laxer with discipline or gives them lavish gifts, the judge won’t give the child’s preference much weight.

Keep in mind that even if a child has a strong custodial preference, it won’t be the controlling factor in a court’s decision. A judge can always overrule a child’s preference if it’s in the child’s best interest to live with the non-preferred parent.

Judges will also watch to see if parents have coached their children. In one case, a judge questioned the children and discovered that their mother had told them to lie about her boyfriend’s overnight visits in their home. The mother’s coaching was a major factor in the judge’s decision to transfer custody to the father.

Do Children Have to Testify About Their Custodial Preferences in Court?

In Utah, children can’t testify in court unless there are extenuating circumstances, and there’s no other way to obtain their testimony. Instead, judges usually interview children in court chambers to determine their custodial preferences. Normally, the court will ask the parents for permission to interview a child, but parental consent isn’t necessary if the judge decides that an interview is the only way to figure out the child’s custodial desires. Parents can’t attend the in-chambers interview. The judge may or may not allow the parent’s attorneys to be present. Often, a court reporter will record the interview.

Courts can determine a child’s preference in other ways as well. In one case, the judge deciding custody considered letters written by two boys to their mom, stating that they wanted to live with her. Courts may also allow custody evaluators or mental health professionals to testify about what children have told them regarding their custodial preferences.

When Can I Modify Child Custody in Utah?

Life is full of changes, and after a few years your custody order may need an adjustment. Utah custody laws allow either parent to file a custody modification request if there’s been a material change in circumstances affecting the child or parents or more than 3 years have passed since entry of the previous custody order. In either situation, the parent requesting a custody change must show that the modification would serve the child’s best interests.

When considering whether a modification is appropriate, a judge will consider the same best interests’ factors as listed above. A judge will hold a court hearing to consider all the evidence. A child’s needs—not a parent’s wishes—will determine the outcome of your case. For example, a parent’s desire to relocate for a new job might not be enough to justify a change in custody. However, a custodial parents’ medical crisis might warrant switching custody to the other parent. The interplay of numerous factors will determine the outcome of your custody case. If you still have questions after reading this article, you should seek out a local family law attorney for advice.

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Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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Absolute Divorce VS. Limited Divorce

28 Monday Nov 2022

Posted by Bankruptcy Lawyer West Jordan Utah in Absolute Divorce VS. Limited Divorce

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Do I Qualify For Alimony?

What To Do When Your Divorce Has Turned Ugly — Absolute Divorce VS. Limited Divorce

When a marriage is over, the most common path people take is to file for a divorce to end things permanently. But in some cases, couples aren’t quite ready to take that final step. In many states, the law provides an alternative—a middle ground so to speak. When people talk about divorce, an absolute divorce is usually what they’re referring to. It’s called “absolute” because it’s the type of divorce that ends the marriage once and for all. In most states, the laws simply refer to “divorce” or “dissolution of marriage.”

In an absolute divorce, the court (or the couple’s marital settlement agreement) will address all of the legal issues involved in ending the marriage, such as alimony, child support, child custody, and property division. Once the court has issued a judgment (or “decree”) of absolute divorce, the spouses no longer have any of the rights or privileges that arose when they got married. These include things like the ability to file a joint income tax return, the right to automatically inherit a share of each other’s estate, and the chance to obtain insurance benefits through the other spouse’s employer. In order to obtain an absolute divorce, you must meet your state’s residency requirements, and you must have “grounds” (acceptable legal reasons) for ending the marriage.

The laws in some states use different terms including “dissolution of marriage” and “absolute divorce”—to mean basically the same thing as plain old divorce: a legal proceeding that will permanently end a marriage, along with all of the rights and privileges that come with marriage. Once a judge finalizes an absolute divorce, both spouses are free to remarry.

You might also hear the terms “contested divorce” and “uncontested divorce.” These don’t refer to the effect of divorce—the legal end of the marriage—but rather to the process of getting there. In an uncontested divorce, the spouses have worked out a settlement agreement on the issues in their divorce rather than having a judge make the decisions for them. The agreement must at least include provisions for dividing the couple’s property and debts, alimony, and if they have minor children—custody, parenting arrangements, and child support. Without an agreement, couples will need to go through the process of getting a contested divorce which can be expensive, time consuming, and stressful. If you want the advantages of an uncontested divorce but are having trouble resolving your differences, divorce mediation could help you work through the stumbling blocks and come up with solutions.

What Are Requirements for Absolute Divorce?

Although the laws on divorce are quite different from state to state, there are basically three sets of requirements for getting a divorce: residency requirements, having an acceptable reason for divorce, and going through the proper legal steps.

Residency Requirements for Absolute Divorce

State laws have residency requirements for divorce to prevent people from filing for divorce in a state where they haven’t been living, just so they can take advantage of the laws in that state. These requirements also make it more likely that the legal proceedings will be in courts that are accessible to both spouses. Depending on the state, the amount of time you must have lived there before filing for divorce typically ranges from three months (in Colorado) to six months (in California, Utah Texas, and Florida). In some states, the residency requirement depends on the circumstances, including where you were married and where the reason for your divorce happened.

Grounds for Absolute Divorce

Whenever you file for divorce, you must state the reason you want to end your marriage and that reason must be one of the grounds for divorce allowed in your state. Historically, these grounds were based on a spouse’s misconduct (or fault), like adultery or desertion. But all state laws now include some variation of no-fault divorce, such an “irreconcilable differences,” “irretrievable breakdown of the marriage,” or separation for a certain amount of time. And several states allow only no-fault divorce grounds. If you want a divorce for a no-fault reason, you generally only have to check the appropriate box on your divorce papers, without providing proof. But some states (like Wisconsin) will require that you testify under oath about the breakdown in your marriage, and if your spouse disagrees, you might have to meet further requirements, such as a lengthy separation, before you can get divorced.

Legal Steps for Getting an Absolute Divorce

The divorce process involves a number of legal steps, starting with filing the initial divorce papers (usually a petition or complaint, along with various other forms) and paying a filing fee. If you have a lawyer, your attorney will take care of all the paperwork and filing for you. But depending on your situation particularly if you have an uncontested divorce you might be able to handle it by yourself, or you can get help with the paperwork from an online divorce service.

Generally, the spouse who starts the process will have to serve the divorce documents on the other spouse, who will have a certain amount of time to file an answer. In some states, you may skip these steps after filing for an uncontested divorce, when you’ve included the written settlement agreement signed by both spouses.

At this point, the legal steps will depend on whether you have a contested or uncontested divorce, as well as the laws in your state and the particular circumstances in your case. For instance, you might be required to exchange detailed information about your finances, take a parenting class, or participate in mediation of certain disputes (especially unresolved disagreements about child custody). With contested divorces, you’ll go through the legal “discovery” process for gathering evidence, such as custody evaluations or real estate appraisals, and you might have several intermediate court hearings on issues like requests for temporary support or custody orders.

Generally, the process will end with a final hearing, either a trial on any unresolved issues or a brief hearing when the judge will review your settlement agreement and ask you a few questions. But in some states, you might not have to attend a final hearing for an uncontested divorce. Instead, the judge will simply review your agreement and other paperwork, then will sign your final divorce decree if everything is in order. Many states have a mandatory waiting period before the judge may finalize your divorce, even when your case is uncontested.

Limited Divorce

For folks outside the legal profession, the fact that there can be more than one kind of divorce may come as a surprise. A divorce is a divorce, right? Marriage over, drop the mic, move on. And that would be correct if you were talking about actually ending the marriage. But in a few states, something called “limited” divorce enters the picture.

Does limited divorce mean that you’re kind of divorced? In one way it does, because a limited divorce has some of the same effects as an absolute divorce in terms of the rights and liabilities spouses have. The major difference between the two is that when a limited divorce is over, you’re still married. Unlike absolute divorce, you’re not free to marry anyone else.

The reality is that “limited divorce” is actually akin to a court-sanctioned separation. In the states that have this option, you file your limited-divorce papers (known as a “complaint” or “petition”) with the court, the same way you would start an absolute divorce. Normally, there are similar rules, like meeting residency requirements and having grounds. And a limited divorce can usually address the same issues (custody and so on) that you find in absolute divorce.

Only a few states, actually use the term “limited divorce.” Other states, like New Jersey and Virginia, refer to limited divorce as “divorce from bed and board.” On the whole though, most states that provide for limited divorce use the term “legal separation.”

You should be aware that not all states allow limited divorce or legal separation, no matter what it’s called. And in states that do, there may be limitations on using it.

Why Would Anyone Choose a Limited Divorce?

A limited divorce can be just as time consuming, anxiety laden, and expensive (think legal fees) as an absolute divorce. So it’s reasonable to wonder why anyone would opt for it if you’re still going to be married when it’s over. Actually, there are a number of potential reasons.

• Although divorce doesn’t have the stigma it once did, there are still people who are concerned about “how it looks,” In those circles, a legal separation may be more socially acceptable.
• A person’s religion might not condone an absolute divorce.
• If a state has stricter grounds for absolute divorce than limited divorce, spouses who don’t yet meet the standards for an absolute divorce may choose limited divorce as an interim measure. And some states allow you to eventually convert a limited divorce to an absolute divorce.
• Sometimes a couple feel they need to be apart, but aren’t ready to give up on the marriage. A legal separation can address issues regarding the children, support, and property, so there’s at least some stability in those areas while the spouses try to figure things out.
• There may be practical reasons—usually finance related—to stay legally married. For example, one spouse might need to continue receiving health insurance coverage through the other spouse’s plan. Or, income tax implications may come into play. But in those situations, spouses need to do their homework regarding insurance company or IRS rules governing legal separations, to make sure what they’re planning to do is permissible.

Alternatives to Absolute Divorce

Most couples don’t decide to end their marriage without first thinking about other options. Typically, they’ve already tried to repair the damaged relationship with individual therapy, couples counseling, or even a trial separation. If you’ve tried to work things out with your spouse and haven’t been successful, but you’re still not ready to jump on the divorce track, you may have other options.

Many states offer couples the option to file for a legal separation, which is sometimes called “limited divorce” or “divorce from bed and board.” These different terms refer to a legal status that doesn’t end the marriage (and doesn’t allow either spouse to remarry) but allows judges to issue orders dealing with child custody, child support, alimony, and property division. Couples may also sign a separation agreement to settle these issues for themselves. Although limited divorce or legal separation is uncommon, it’s still available for couples who need it.

For example, if you and your spouse practice a religion that prohibits divorce, legal separation or limited divorce may be your preferred option for living separate and apart, while continuing to be faithful to your church. For other couples, an absolute divorce may simply be too permanent of an option, but they still want to disentangle their legal and financial obligations. If you aren’t sure which option is right for you, it may be time to speak with a qualified family lawyer.

You may have heard about “separation agreements,” sometimes called “divorce settlement agreements” or “property settlement agreements.” These are documents that are prepared and signed after couples have settled all their marital issues, usually with the aid of their lawyers or through mediation.

In terms of whether a separation agreement is considered a legal separation, the answer can be a little confusing. As you saw above, a true legal separation is one that goes through the courts. If you live in a state with legal separation (or limited divorce) and you reach a separation agreement with your spouse, you typically will have to submit the agreement for a judge’s approval in order for the agreement to be part of the separation or limited divorce judgment. But in states without legal separation, the court doesn’t have to be involved with a separation agreement. That said, a separation agreement that’s properly signed by both spouses is a legally binding document. It’s essentially a contract between them. So if one spouse violates its terms, the other spouse can go to court to force compliance, just as you would with any breach of contract. (Except the case would be heard in family court rather than a general civil court.)

The beauty of separation agreements is that if you eventually decide to file a divorce complaint, whether absolute or limited, the fact that you’ve already resolved all your issues will make the divorce process easier. The court will consider your case “uncontested,” and your separation agreement will become a part of the divorce judgment.

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