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David R. Hartwig, Esq.
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Posts tagged "divorce"

Divorce, Retirement Plans, and QDROs

If your future former-spouse has a retirement plan, or a number of those plans, through an employer you are probably entitled so some portion of the plan or plans (usually a share depending on the lengths of marriage in relation to length of employment). How you calculate your share is part of the divorce process, either through settlement or trial. Once all that work determining the division of the plan is completed, and the decree of divorce is entered, the one of you (usually the person receiving the benefit of the division) has to prepare what is know as a Qualified Domestic Relations Order, or QDRO. The QDRO is a separate order from the court, but it is based on the provisions of the divorce decree that relate to the retirement plan (in essence, the plan administrators don't want to read everything in your decree; they are just interested in the part of the decree addressing the retirement). As such, one cannot truly prepare a QDRO before the decree is entered by the court. Again, QDROs are only required on employer-employee, or work-based plans. And, you need a separate QDRO for each such plan. As to other types of plans, the process is different and will be addressed separately. In preparing a QDRO, one needs to ensure the QDRO fully represents and contains the intent of the parties as set forth in the divorce decree. And you should probably work with a lawyer who has knowledge and experience in preparing QDROs; not all divorce or family lawyers have this experience; and an error could result in the plan administrator rejecting the QDRO meaning you have to go back to square-one, and explain to the other spouse and the court why you are having to re-file everything over again. It is best to get it correct the first time. Your local account broker, or investment advisor, may not be the appropriate person to only consult. That person may not know the requirements of a QDRO and point you in the wrong direction -- I recently had a client whose broker insisted that a QDRO was required on a personal, not a work place, account. It took some extra time, and cost to the client, to educate the broker on this point -- that QDROs only pertain to plans with an employer. In addition to my work in the divorce area, including appropriate division of retirement accounts based on property allocation and "fault" in the divorce, I have experience in communicating with plan administrators and having QDROs appropriately prepared and approved by the administrators and the courts.

Avvo Legal Services and similar services unethical in Utah.

In a recent Ethics Advisory Opinion. Opinion # 17-05, the Utah State Bar Ethics Advisory Opinion Committee determined that the apparent structure of Avvo Legal Services is unethical, violating a number of the Bar's rules.While not naming Avvo, or any other service, the opinion cites procedures that Avvo appears to advertise on its website.

Modifying Alimony after Divorce upon Retirement

In a new case, the Utah Court of Appeals affirmed the termination of an alimony obligation upon retirement. In the original decree, wife agreement to pay alimony to husband under the usual standards for termination. However, the agreement did include language about retirement as a basis for termination.When she retired, wife sought to terminate her alimony obligation. At trial, it was shown that husband's expenses did not exceed his income, so the trial court terminated the alimony obligation. The Utah Court of Appeals affirmed. It must be noted that this case was successful because of the inclusion of the language about retirement as a basis to change alimony.The case is Nicholson v. Nicholson

Divorce is a contest

You have heard the phrase contested divorce. It points out a salient fact: that in dissolving a marriage, you have to split up everything - the money you saved, the home you made together, even the children you brought into the world.

Modifying Stipulated Alimony in Divorce

The Utah Court of Appeals issued a decision concerning this issue and addressed what constitutes a new income stream to justify a substantial change in circumstances to allow for a modification of alimony. The issue surrounded the sale of property which was awarded to the wife. The Court affirmed the trial court's decision that husband failed to show a substantial change in circumstances that was not foreseeable at the time of the original divorce. This is an important case exploring the "foreseeable" aspects intertwined with potential changes in circumstances, having potential dire consequences in hoping to change alimony "down the road".The case is MacDonald v. MacDonald.#alimony #property #divorceproperty #inheritance #separateproperty #jointproperty #wealth #marriage

Homestead Exemption in Divorce

The Utah Court of Appeals issued a decision discussing the application of Utah's Homestead Exemption in a divorce action dividing property, reaffirming that such does not apply in an action between a husband and wife. The Court of Appeals affirmed the trial court's decision that the husband was not entitle to a homestead exemption on the property in issue, or on the proceeds from its sale. The case is White v. White.#divorce #property #divorceproperty  #separateproperty #jointproperty #wealth #marriage

Alimony in Divorce - Actual expenses vs. standard of living.

The Utah Court of Appeals issued a new decision on this alimony issue. The main issue was that of the pre-divorce standard of living and the concept of equalization of the post-divorce standards of living rather than just going on the recipient's needs. The trial court erred in not establishing the base standard of living, instead going to simply the needs of the parties. The trial court's decision was vacated and the case remanded for the trial court to reassess its alimony award.The case is Rule v. Rule.

Alimony in Utah Divorce

The Utah Court of Appeals issued a new decision addressing the requirements that must be demonstrated at trial, and reduced to findings by the court, in order for alimony to be properly awarded. The case is Chesley v. Chesley, and the main problem appeared that insufficient evidence was presented as to the recipient's need in relation to the amount of alimony awarded.#divorce #property #divorceproperty #inheritance #separateproperty #jointproperty #wealth #marriage #alimony #chesley

New Ruling on Alternative Service in Utah

The Utah Court of Appeals has issued a new decision addressing the requirements for alternative service in a divorce action. The case is Silva v. Silva, and goes into detail as to the requirements the moving party must go through in order to obtain service of process via alternative means. It also discusses Rule 60(b) setting aside a default and the effects of a void judgment on a sheriff's sale.  #highconflict #divorce #separateproperty #jointproperty #wealth #silva #default

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.

I am David R. Hartwig, Esq., a Salt Lake City attorney with extensive experience helping parents resolve simple or high-conflict custody issues reaching arrangements that work for children and parents. Child custody involves parent-time and visitation schedules, and can affect support. I help in all of these areas, providing comprehensive service clients need to achieve their custody goals.

Factors In Child Custody Decisions

As an experienced Utah child custody lawyer, I understand that custody cases may become a contentious issue even years after an order is finalized. The trend in Utah toward joint custody often creates messy, unworkable situations, which ultimately lead to enforcement issues when parents do not abide by their custody orders.

The best interests of the child must be considered, including:

• Whether joint legal or physical custody will benefit the child's physical, psychological and emotional needs, or the child's development

• The parents' ability to give first priority to the child's welfare, and reach shared decisions in the child's best interest

• Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent

• Whether both parents participated in raising the child before the divorce

• The distance between the parents' homes

• The parents' maturity and their willingness and ability to protect the child from conflict that may arise between the parents

• The parents' ability to cooperate with each other and make decisions jointly

• Any history of, or potential for, child abuse, spouse abuse, or kidnapping

• Any other factors the court finds relevant

Despite the complicated and sensitive nature of custody matters, I have helped many clients successfully establish custody orders.

Get Help With Your Child Custody Issue

If you have a child custody issue, please contact me, David R. Hartwig, Esq. I am an experienced Salt Lake City custody lawyer dedicated to helping clients resolve complex custody issues and implement necessary custody orders. For high-conflict cases, I am also one of the few Utah child custody modification attorneys trained as a Special Master for ongoing dispute resolution.


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