David R. Hartwig, ESQ.
Attorney & Counselor At Law
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January 2017 Archives

DIY Divorce - Think ahead!

t still amazes me how many requests for help I read on the various services where people say they need help with this or that issue, which they never addressed in the original divorce case. Things like custody, visitation, support, property, debts, and the like, all because the person thought the other side would be nice down the road, do the right thing, or would never do what that other person is now doing.Then, all of a sudden, the ex is acting in a contrary manner, and getting away with things because those things were never discussed, or if they were, the results of the discussion were kept out of the decree -- usually to keep the other person "happy" so that they'd sign off on the decree.That attitude simply leads to problems and conflict down the road. The first person goes along just happy and then slam, there is a problem. And it was not addressed in the decree. So now that first person is being bullied and cajoled by the ex, and has to cave in, or face handling the problem through a court case to change the decree and add the new provisions, if possible.Wouldn't it be better to get everything done right the first time, and avoid that down-the-road surprise and conflict? You need to get everything into the decree. If you need help looking down that road, then do get with an experienced family law attorney to help. As I've posted before, some attorneys will work with you on a limited basis.So, do check with an experienced attorney and get the best decree upfront.

In Divorce Be Careful What you Post - 2

I've already written about being careful what you post on social media. But you also need to be careful what you post on any of the various legal opinion sites. It is amazing some the the admissions people make on the various legal opinion sites. I've seen admissions of infidelity and affairs; hiding of assets; transferring funds fraudulently to avoid having to disclose those funds; child neglect and abuse; domestic violence; fraudulently entering a marriage; and even criminal activity. I've even seen a post where a person admitted to setting fire to the house because he didn't want a divorce (and fraudulently filing an insurance claim on top of it).All of those admissions could subject the writer to civil ,and even criminal, prosecution and damages. That information is public, and could be traced back to you. There is no confidentiality on those sites, and generally there is no confidentiality until you actually enter into a relationship with an attorney.Be very careful what you do post.

Grandparent visitation in Utah - an update.

This issue, grandparents' visitation, still appears to have conflict associated with it, despite an earlier post. I have even read some posts from other attorney sites that add to the confusion. The Utah statute remains unchanged. A grandparent can file a petition for visitation if the petitioner's child has died, has been missing for an extended period of time, or is a non-custodial parent by way of a divorce or legal separation (in the case of a divorce or legal separation, the grandparent can even join the divorce or legal separation action). But, over a year ago, the Utah Supreme Court issued a decision making it much more difficult for a grandparent to succeed with that petition. That case is Jones v. Jones. In Jones, started with the fact that a parent's right to decide who has a right of visitation with her child is "fundamental" under the Due Process Clause of the U.S. Constitution. That means that the parent's right is protected, except in the limited circumstance in which an infringement of it is shown to be "narrowly tailored" to protect a "compelling governmental interest." That means that parents, as a general rule, have the final say in who has a right to interact with their children on a regular basis. All of that Constitutional protection leads to the fact that the mere (but unquestioned) significance of the grandparental relationship will not be enough to override a parent's fundamental right to raise a child as the parent sees fit. Neither does a vague sense that the child would be better off with grandparents in the grandchild's life suffice. Grandparent visitation orders must be limited to the exceptional case where the failure to override the parent's wishes would cause substantial harm to the child. That exceptional case is presumed to be the case where the grandparents' role is akin to that of a parent--where the grandparent has filled the role of "custodian or caregiver" or something similar. Then, a grandparent might succeed with the petition.

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