David R. Hartwig, ESQ.
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October 2016 Archives

Probate estate personal representative can sue herself - Bagley v. Bagley

In a probate estate matter, the Utah Supreme Court has ruled that a personal representative can, acting in her personal capacity, sue herself as the personal representative for damages. The case is Bagley v. Bagley.

DIY Divorce. Do I have to go to court?

Simple answer is: it depends. Most divorce cases are settled, either through the attorneys, or in mediation. But, both of those options require that you and your spouse agree on all the issues in your divorce. If you do not agree, then yes, you will need to go to court for a trial.No matter what, understand that a divorce is a legal action - there will be a court case filed. In Utah, family law cases are privileged, so they are not "public" record.You may also want to go to court while you and your spouse are working things out. The reason being that you may want to obtain temporary orders for custody; parent-time; child support; use of the family home; and to determine who pays what. Any such temporary orders would control your divorce case until such time as the final decree is entered.Besides having various issues settled, on a temporary basis, going to court for temporary orders can be useful if the other side decides to use self-help to gain access to the children, simple takes the children, or acts in inappropriate ways violating those temporary orders. In that case, you can return to the court and ask that the offending party be admonished, or punished, for the inappropriate actions, including the possibility of being awarded your attorney fees for having to bring the motion.So, no matter what, you will have to have a court case in order to actually get divorced in Utah, and actually get your Decree of Divorce. Whether you actually go to court depends on your needs, and your situation at the time.

Divorce - How do you coparent with an uncooperative coparent?

Joint legal custody, with some form of joint parenting, is approaching the norm. There are two sides to the issue, which are addressed elsewhere. But, I continue to see recent posts and articles about the issue of how do I co-parent with an uncooperative (or narcissistic) parent.

Having parent-time disputes, can we use arbitration or mediation?

I hear this fairly often in parent time and visitation matters where things are not working out well. The usual complaint goes along the lines of: "My husband and his ex-wife have been constantly in litigation about various child custody and child support issues over the past few years. It has taken an enormous toll on us."

What are the benefits of hiring a divorce attorney?

When it is apparent your marriage just is not going to work out, you might start looking for information about the divorce process. Like many others, you turn to the internet for help. Some of the results you find may lead you to think that it is not necessary to have an attorney to help you with your divorce; instead, you decide to try to handle it on your own. You could not be making a bigger mistake.

Halloween and parent-time - who gets the child, and how long?

The fall is upon us, yet again. Halloween is approaching and separated, divorce, or unmarried parents want to know who will have their children for the holiday, and for how long. Halloween is not necessarily a "legal" holiday, so there may well be questions about how that day is handled. What you need to look at is your decree of divorce, or custody orders, to see what it says. In Utah, there are statutes that address visitation, or parent-time; and, those statutes do state what holidays are considered and how they are handled. And, Utah does recognize Halloween as a holiday for purposes of parent-time. The pertinent Utah statutes are 30-3-35, 30-3-35.1, and 30-3-35.5. But, be aware. Your decree or custody order may take precedence over statute; it could give additional holiday time, or take it away. So, look to your divorce decree, paternity orders, or custody orders to see what it says first. If you have any doubts, or questions, get together with an experienced family law attorney to review your papers, and help you learn now exactly what your rights are, rather than waiting until Halloween.

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