David R. Hartwig, ESQ.
Attorney & Counselor At Law
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Salt Lake City Family Law Blog

New Jersey Bans Participating in Avvo's Legal Services

On June 21, 2017, the Advisory Committee on Professional Ethics, Committee on Attorney Advertising, and Committee on the Unauthorized Practice of Law issued a Joint Opinion (ACPE Opinion 732, CAA Opinion 44, UPL Opinion 54) stating that the legal service program operated by Avvo through its website is an impermissible lawyer referral service, in violation of Rules of Professional Conduct 7.2(c) and 7.3(d), and comprises improper fee sharing with a nonlawyer in violation of Rule of Professional Conduct 5.4(a).  New Jersey lawyers may not participate in the Avvo legal service program. 

Joint Custody / Parenting Plan -- Do You Really Know? And Who Has the Final Word?

Joint Custody is all the rage today. And parenting plans abound. But do you really know what they say, and understand how to avoid conflict? The idea sounds simple. Sure both parents will share custody. But what does that mean, and what happens when there is conflict? Joint custody in Utah is controlled by statute, and there are a couple of them. And do you really know what those statute require -- particularly as to how to handle conflict and which parent actually has the final say? Remember, there are only two parents -- so there is no natural way to break a tie. Statute requires that each and every parenting plan has provisions as to how to handle this issue. And, every joint custody order must be accompanied by a parenting plan. So, you will have to deal with this issue. Statute says that, before you can go back to court to enforce any of the orders, you have to comply with the dispute resolution procedure in the parenting plan. Yet almost all of those (particularly the ones from the court and other sources) say you have to mediate, and then the custodial parent has the final say subject to the other parent's right to go to court to challenge that say. That means that you have to take the time to find a mediator, spend the time and money to attempt mediation, and after a few hours find out that you got nowhere because the other parent simply says "No". Mediation only works by agreement, and if you were able to agree you wouldn't be in this mess anyway. So why even put that mediation stuff in place? I suggest that instead, you list a special master; a person who is court appointed and can actually make a decision on an issue. A special master is allowed by statute, as is arbitration. But, a special master usually works without attorneys, and is much quicker than court or arbitration. I know, as I can usually make a decision within 24 hours of having the issue presented to me by both parties. I suggest that if you are working on a parenting plan, you change the dispute resolution procedure in the parenting plan from mediation to a special master, and that you actually name and appoint the special master in the parenting plan. If you already have a parenting plan in place, you can amend it to you change the dispute resolution procedure in the parenting plan from mediation to a special master, and that you actually name and appoint the special master in the parenting plan. In that way, the next time there is a problem, be it big or small, you can go right to the special master and resolve the issue in just a couple of hours of work! And, you'll actually have a decision!

What to do when your ex is badmouthing you

Divorce is done; Custody is awarded; but the other side keeps on bad-mouthing you. Yes, it happens! Your divorce case is completed, or custody orders are in place, but the other side keeps telling your relatives, your friends, even your employer and anyone else who will listen what a totally terrible person you are, how you cheated in gaining what you were awarded, and whatever other terrible things the other person can create to tear you down. And often, the children are included in those tirades.

Keeping the children out of the parties’ disputes is probably one of the most important goals. Putting the children in the middle can be damaging, catastrophic, and could even alienate the children.

DIY Divorce -- and then your ex pulls a stunt!

You and your future ex decide to file divorce on your own -- DIY. You file the petition and then your ex pulls some stunt like filing a counterclaim, files some motion, or gets an attorney to fight you. What do you do?You can hire an attorney to help you. Or on the other hand, you can work with a legal counselor, an attorney experienced in family law you hire to help you, by educating you and coaching you on your options and how to accomplish your goals. The legal divorce counselor may, or may not, appear in your case, depending on what you decided to do. But at the very least, you have an experienced lawyer in your corner to help you out.You can then control how much you use the counselor, and you can continue in your DIY divorce case with some level of confidence.

Picking a Special Master

Just last week the Utah State Bar held its 2017 Annual Family Law Seminar, which included a presentation on special masters, including the recommended training. The recommendations included membership with AFCC (Association of Family and Conciliatory Courts); training in Parenting Coordination and Advanced Issues in Child Custody through AFCC or similar agency; continued affiliation with AFCC or similar group, and continued education through that group; and, experience in custody cases. That is what you should be looking for. If you go to my website, you will see that I have the affiliation, the training, and the continuing relationship as noted above. Plus, I have handled all phases of family law cases, juvenile law cases, and appeals in those areas, as well as other work. Plus, I do offer a sliding scale for fees, depending on your income. So, If you are thinking about a special master for your case, you now have some idea as to what you should be looking for.

Divorce or Custody Issues? Is a Legal Coach / Counselor for You?

You might have heard about divorce counsellors, divorce coaches, and the like. But what do they do, and are they for you. A lot of times, those people are social workers, family counselors, or psychologists. They work with you to handle the stress involved in your life situation, and coping with divorce or custody issues.A Legal Coach is different - A Legal Coach or Counselor is an experienced family law attorney who has handled all of the different issues involved in divorces, paternity matters, and petitions to either change existing orders or enforce current orders. The underlying issues can include custody, parent-time or visitation, child or spousal support, retirement issues, how the house is handled, personal property, and the need for restraining orders.A Legal Coach knows the law on those issues, as well as the procedural aspects and issues involved in filings, motions, required initial disclosures, discovery, mediation, and trial if you cannot settle. A Legal Coach may not actually represent you in the legal action, allowing you to handle the majority of your case on your own if that is what you want, or the Legal Coach may enter either limited appearances, or a general appearance, in your case to assist you while working to keep fees down. The advantage though is that the Legal Coach can help you lay out your goals and plans on how to reach those goals; taking into account the overall status of your case and your situation.This education and planning phase is the most important part of your case. It allows you to know what you want, whether your goals are realistic, and the overall steps required to attain your goals. In that way you can plan your case, know what you can realistically handle, and have the assistance of an experienced attorney if things take a wrong turn, like when your spouse hires an attorney.If you start with an attorney that you feel comfortable with, and develop trust in that person because the attorney is capable of being brutally honest with you, then you'll have the confidence to handle what you can, and the knowledge to know what needs to be done. You'll will have your own trusted expert in your corner, a knowledgeable ally who already knows you and your concerns.

Nasty Custody Dispute? Want to drive the other side Crazy? Here's how:

Custody disputes can be nasty, really nasty. Be it in a divorce, a paternity action, or a subsequent action to modify prior custody orders, allegations can fly back and forth, and parents can bring up the nastiest allegations and claims. The other side will fling all kinds of garbage at you, from minor incidents to completely false claims -- and that will all be done to hurt you and make you feel defensive, if not downright combative. After all, the other party is making all of those claims to show just how terrible of a parent, and person you are. How could you not take that personally?You do have your way to fight back; a plan to not only show how all those claims are false, but also to possibly show the other party's attempts to malign you. This is a real strategy that may well not only prove all of that, but also help you win your custody claims.Here is the plan:
•    Every time junior comes home from school with a gold star on a paper, test, or project, scan, or take a picture of it and send it to the other party with a kind note, something like "thought you'd like to share in [child's name] accomplishment.
•    Every time junior comes home from school with a good grade on a paper, test, or project, scan, or take a picture of it and send it to the other party with a similar kind note.
•    Every time junior gets selected to be in a school, or other, play; joins a team or some other activity; or is to be honored in some ceremony, scan, or take a picture of the announcement and send it to the other party with a similar kind note (or, if there is nothing to copy, send an email anyway with the information included).
•    Every time you get some note or announcement about a school, or other activity, again scan it and send it to the other party; you might even want to invite that person to attend.
•    Every time you schedule any sort of medical or dental appointment, email the other party and let that person know; and, then follow up with whatever information you learn from the appointment. Just an FYI note, or something similar.
•    Send an email to the other party telling him or her just how excited junior was to hear from the other party, enjoyed the time junior spent with that person, or how much junior truly enjoyed the gift or item junior brought home.
•    Be willing to work with the other party if there as scheduling problems (so long as it does not become an obvious abuse of the current custody orders).
•    And never, never respond to any of the negativity in an emotional state; in fact, it might be better to completely ignore the insults and taunts you receive, and let your attorney handle all of that through counsel thereby documenting the other party's bad conduct.This will work in your favor. There is a rule in Utah that custody evaluators have to abide by, which includes, methods of communications between the parents, the ways in which a parent supports the child's relationship with the other parent, and just how you are willing to work with the other parent to accommodate problems or conflicts in schedules. You will be showing your love of your child, and your willingness to let your child be with, and love the other parent.

Do you know your rights as a trust beneficiary?

A trust is a legal document that allows a person, usually called a “grantor,” to give their assets to another person or institution to manage, called the “trustee.” The trustee holds the legal title for these assets on behalf of the beneficiary or person who is receiving the assets from the grantor.

Trustees have a fiduciary duty to administer the trust according to its terms. The trustee is responsible for collecting assets for the trust and making sure they are protected according to the trust’s terms. They are also responsible for overseeing any investments, reporting and paying taxes and keeping a record of every transaction.

Are bad online reviews defamation? Spencer v. Glover

The Utah Court of Appeals has issued an opinion addressing that questions, The case is Spencer v. Glover, just released.This case involves an attorney who represented a client in a divorce. The client subsequently posted a lengthy and derogatory review of the attorney. After attorney asked client to remove the review and client's refusal, attorney sued for defamation, intentional infliction of emotional distress, and intentional interference with prospective economic relations.Client moved to dismiss all claims under Rule 12(b)(6), failure to state a claim upon which relief can be granted. The trial court granted that motion, determining client's statements were mere opinion and that the other claims were not sufficiently supported.The Court of Appeals held that the trial court had correctly dismissed attorney's defamation claim, because the review was an expression of opinion, and the underlying facts were not defamatory. In reaching that conclusion, the court found that client was in a nasty divorce, upset about funds owed to the attorney, and worried about the division of assets in the divorce.Sure the client used hyperbolic phrases throughout the review, per the Court of Appeals. But that was okay because in the context of the review "it is unlikely that any reader would take [the review] at face value... most readers would view it as exaggerated commentary expressing [client's] frustration." So, that is the state of defamation and online reviews. Per our Courts, readers of negative reviews don't take the review seriously and most readers will simply look at it as exaggerated commentary expressing frustration.I personally disagree, it is my opinion that the majority of readers of reviews do take all such "exaggerated commentaries" to heart in making consumer decisions. But then again, our justices are not out in public having to operate in the market place, particularly the digital market place, to obtain clients -- at least in my opinion.

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