David R. Hartwig, ESQ.
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August 2016 Archives

Paternity actions when a child is born to a mother who is married to someone else.

The Utah Court of Appeals has again addressed this issue, in a new case, Kielkowski v. Kielkowski http://scholar.google.com/scholar_case?case=14449128863980745795&hl=en&as_sdt=6&as_vis=1&oi=scholarr, or http://law.justia.com/cases/utah/court-of-appeals-published/2015/20130225-ca.html)

Of Trusts and Divorce -- Trusts as potential marital property.

Many people in Utah create trusts to control property or avoid probate. Sometimes people create a family trust. However, sometimes people fail to fund or use their trusts correctly.
    A recent Utah Supreme Court case appears to require the joinder of trusts in a divorce action. That case is Dahl v. Dahl.1 The rationale for joinder is that as trust assets may include marital property, the trust must be joined as a party to the divorce action. Property Division, and Using Trusts
     
    Now, what does all of this have to do with divorce? That question goes to when the trust was created, the purpose of the trust, how the trust is funded, and who the beneficiaries are.
    When people divorce, the courts review the marital estate and decide what is, or is not, marital property. In essence, whatever is created or received during a marriage is marital property. (There are some exceptions, but they are beyond the scope of this explanation.) Marital property usually includes:     •    Wages earned during a marriage, as well as the things purchased or improved with those wages.
    •    Increases in property value that occurred during the marriage.
    •    Contributions to, or increases in the value of, retirement, or other investment accounts using funds earned during the marriage.     Marital property might also include any of the following:     •    A trust that was created during the marriage, especially if marital property was used to fund it.
    •    A trust was created to benefit the grantor's family, especially if the spouse is included.
    •    A trust, if the trust property has been used by the family or spouse, or there have been transfers of property into and out of the trust during the marriage.     In a divorce, the trial court must be able to make fair and reasonable decisions about the marital estate, including children, property, debts or obligations, so that the decision will be fair and reasonable to all concerned. In making an equitable division of the marital assets, the court needs flexibility to decide upon the evidence whether any property, including property transferred by one spouse into a revocable trust, should be included within the marital estate.2
    While that matter specified only a revocable trust, Dahl has expanded the application to irrevocable trusts as well. This is an argument that I successfully used to join an irrevocable trust  in a divorce action.
    If you have a trust and you think its assets are not marital, you might be wrong. If you are involved in a divorce or are thinking about a divorce, , it would be prudent for you to review your trust, or any ideas you have for creating a trust, with an appropriate family law counsel, particularly one who is familiar with Dahl.
    If you do become involved in a divorce and you either know, or suspect, that a trust exists, any counsel you retain to help you should also know about joining the trust in the divorce so that you will be able to divide the marital estate equitably. ----
1 345 P.3d 566; 2015 UT 23
2 Knickerbocker v. Cannon (In re Estate of Knickerbocker), 912 P.2d 969; 1996 Utah LEXIS 14; 285 Utah Adv. Rep. 3

Grandparents' Rights to Visitation (parent-time)

What is a "high conflict" divorce or family law case.

High conflict divorce and family law cases    High-conflict cases arise in matters where one parent asserts a "right" to certain privileges without regard to the court orders, and usually that one parent is, or perhaps both are, seeking to control the other with entitlement attitudes. In some instances there may even be underlying psychological problems. They usually involve custody of the children and issues surrounding how custody is assigned, and how the parties participate in parent-time. A high conflict case does not have to be a divorce; it can be any family law case, such as a paternity matter, a custody matter, or a case seeking to change prior orders. High conflict
    I am aware of only one Utah case that actually discusses what a high-conflict case is; R.B. v. L.B.1 The Utah Court of Appeals noted that the case is and has evidently always been a high conflict case. Before the [divorce] decree, there were numerous hearings before the commissioner, objections to the recommendations of the commissioner, motions to reconsider the commissioner's orders, motions for contempt, discovery disputes, motions for discovery sanctions, motions to compel, motions for Rule 11 sanctions, accusatory affidavits, allegations of abuse and child abuse, numerous temporary orders, motions to transfer jurisdiction to Kentucky, requests for communication with the Kentucky courts, disputes about a custody evaluation, a Rule 60(b) motion for relief from an order denying bifurcation, motions to disqualify counsel ... disputes about GAL fee allocation, motions to strike pleadings as untimely, a motion for [a temporary restraining order] ... alleging [Mother] was trying to get [Father] dismissed from his job ... allegations by [Father] against the two female commissioners who have been assigned on this case of sexual discrimination against [Father], and changes of counsel.2    R..B. demonstrates what parties go through in a high-conflict matter. If your case has just some of the R.B. elements, then you could be involved in a high-conflict case.
    Please understand that the motions mentioned and legal actions taken are not "wrong". Affirmatively bringing the underlying facts to the attention of the court can be appropriate, such as when the facts support your position or your opponent is violating the rules of court. These kinds of motions are required when one side does not abide by the rules of court in a timely manner, files pleading late, or takes actions that are not in the best interests of the child. There are also times when commissioners make mistakes and a party has to take one, or more, issues to the judge.
    If you are dealing with a high-conflict case, you need to prepare to affirmatively and legally protect your rights while holding your opponent accountable. Although you can attempt to use counsel or mediation in order to resolve any issues, those options may not be viable in a true high-conflict case -- the other side will control the mediation and use it as a forum to assert his or her rights. Besides, the other side will ignore any agreements made. Your sole option then is to take the disputes to court.
    When you take the disputes to the court, you need be sure that you have fully complied with all rules. In other words, you need "clean hands". You will need to have the detailed evidence to support your claims fully. You want to make it as easy as possible for the commissioner or judge to understand the facts, and rule in your favor.
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1 2014 UT App 270; 339 P.3d 137; 2014 Utah App. LEXIS 275; 773 Utah Adv. Rep. 14
2 339 P.3d at 140; ¶ 2.

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