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

Going to court negatively impacts the children, Right?

Going to court negatively impacts the children, Right? I participate in a number of the online legal question and answer forums I often see that claim. But, it is always preceded by allegations that the other parent is not allowing visits, won't let the parent have time with the child, breaks his or her agreements to allow a visit, or demands that all schedules and agreement must be his or her way -- all without going to court. Let me be blunt. The only way parents going to court for assistance in establishing custody and parent-time orders impacts a child is if one, or both, of the parents put that child in the middle and involve the child in the case. If both parents are doing what is best for the child, then the child will not even know that there is a court case, because that case is between the adults. So, going to court to obtain orders concerning custody and parent-time should not directly impact the children. Any impact the child would be passive by way of having parents who love the child and allow the child to openly love each parent -- that can only be a positive impact. Plus, going to court will provide a set, consistent, and predictable schedule for parent-time. A schedule that the parents and the child can count on, and look forward to with happiness and anticipation. So, if the other parent is already causing problems by denying access, limiting parent-time, or playing games with dates and time, that parent is already putting the child in the middle and causing the child harm by way of depriving the child time with the other parent. In those situations, the one parent needs to be an adult and take the situation to court to obtain appropriate orders, including orders to keep the child out of the case. And, I bet that it will be the offending parent who then cries that going to court will "negatively impact the child"!

How to spot legal malpractice in your family law case

Mistakes in your divorce and other family law cases can significantly impact your divorce settlement, child custody orders and other issues involved in your case. That is why it is important to work with an experienced lawyer who will protect your rights and guide you through your case.

Divorce Conflict? How to pick a Special Master?

If you are reading this, then you know that a Special Master can be used in situations where there is high-conflict in a divorce or custody case; or after the case, if the conflict continues or worsens. But, how do you find a Special Master.

Divorce Conflict? Tired of dealing with all the problems your ex creates? Try a Special Master

During, and after, a divorce there is often conflict - a great deal of conflict. The conflict often involve the rights of parents in relation to the children: custody disputes, parent-time (visitation) conflicts; and, parenting styles or roles. The children are affected and pulled by parents, and the parents are frustrated by the costs, and weeks of delays, in having to go back to court to determine their rights, or enforce the terms of a divorce, custody, or paternity order.

Trusts in Divorce -- Smith v. Smith

A new opinion discussing divorce and allocating a family trust has been released by the Utah Court of Appeals. The case involved a family trust created by husband and wife during their marriage. The trust purported to claim that any account, asset, or other item opened, obtained, or created during the marriage was to be marital property. However, there was a provision that wife had certain property as her own.Prior to the divorce, wife received an inheritance, and placed the funds in a separate account. The divorce followed and the trial court awarded the separate account to wife. Husband appealed, claiming that under the general terms of the family trust, the account was marital property and he should have been awarded a portion of it.The key turned out to be the specific provision of the family trust that specified that all interests in wife's family holdings was wife's separate property. The lesson to take away from this is that when one is attempting to generally define rights in a trust to ensure that all of the specific provisions are consistent. This case also reinforces the fact that any such questions will be determined under contract principles.The case is Smith v. Smith

Divorce and award of business interests -- Lindsey v. Lindsey.

The Utah Court of Appeals has issued a new decision concerning the award of a premarital business interest that substantially appreciated in value during a twenty year marriage in a divorce. The husband held premarital business interests, the value of which approximately tripled during the marriage. The wife, in addition to being the home-maker, supported the husband's business efforts through performing various host duties in social settings to strengthen husband's relationships with his clientele.The interesting point is that this award was by way of a summary judgment. The trial court, on husband's motion for summary judgment, granted judgment for husband that his business interests were premarital, had not been commingled, and wife's assertions of her support did not rise to a level to show that she augmented or enhanced the value of husband's business interests.The case is Lindsey v. Lindsey.

Thinking about divorce later in life? Follow these tips to protect your future.

Divorce is never an easy decision, especially if you have been married for several years or decades, and you are getting into the "gray" time of life. Questions exist, such as: Where will you live? What will happen to your retirement savings? Will you be able to stay involved in the same activities you enjoy now? These are difficult questions, but you have to ask them, and get answers.

Strategy and Aggression in Divorce

Notice that "strategy" in divorce is first; that is because simple aggression in a divorce matter, or in any family law matter is not good. If you really want to burn your spouse, or ex-spouse, because they cheated on you, or some other perceived wrong, then you will simply be wasting your time and money. In general, the courts are not going to punish anybody like that, and Utah law says that things like alimony cannot be used to punish or reward a party.There are times to be aggressive in carrying out your over all plan. Times to clearly assert, with determination, your position and your goals as allowed under law. If, for instance, your spouse abuses the children or there is conflict, you need to stand strong and marshal all of your evidence to protect your children -- that type of problem does not really allow for compromise, not if you truly care for your children.But first, there needs to be the plan, the strategy. You and your attorney need to sit down, determine what you want, what your liabilities may be, and what your rights are. You do have to know where you are going before you start this journey, and it is often best to plan a route, and potential alternate route. To do that, your attorney needs to educate to the risks and benefits of your position and goal.With your plan and strategy determined, it is time to proceed. Depending on what the other side does, you may well have to become aggressive. The other side may play word games, delay matters, become exceedingly verbose, aggressive, or simply refuse to do anything. It is then that you should appropriately assert your position with simple clarity and force. You are not being nasty, you are simply moving the case forward to cut short whatever shenanigans the other side is throwing at you. Sure, the other side will get upset and make all kinds of accusations about you. But if you are using your aggression appropriately it won't really matter. Because you are diligently working toward your goal by clearly and concisely presenting your position to the court. And, if the court gets its decision wrong, you will need the same kind of strategy and appropriate assertiveness to appeal that decision.One final caveat: strategy and aggression may be appropriate in litigation, but aggression is not appropriate in settlement negotiations or mediation. Mediation in particular, is a procedure to work together for a mutually beneficial resolution of the issues.

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.

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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