Category Archives: Family Law

Same-Sex Marriage: A Historical Introduction

Same-Sex Marriage: A Historical Introduction

Within the already controversial realm of gay rights, one of the most controversial topics is same-sex marriage. After extensive litigation, the U.S. Supreme Court ruled that same-sex couples have a fundamental right to marry. As a result, same-sex couples have a legal right to marry and to have their legal marriages recognized in every state. Below you will find a historical introduction to same-sex marriage.

Civil Rights

For some, the idea that same-sex couples should have the same matrimonial benefits as heterosexual couples has been purely a question of civil rights. According to this argument, the constitutional concepts of Equal Protection and Due Process require that same-sex couples be treated no differently than heterosexual married couples. The Supreme Court largely adopted this position, alongside other arguments, when it issued its landmark Obergefell v. Hodges decision in June of 2015. The ruling explicitly states that same-sex couples have the right to marry and have their marriages recognized throughout the country on the basis of the Equal Protection and Due Process Clauses of the Constitution.

Moral Rights and Family Values

Others have seen same-sex marriage as a moral question, and concluded that such unions violate traditional Judeo-Christian ethical values. Another argument has been that it undermines family values: heterosexual marriage is founded upon the need to procreate, but procreation is biologically impossible for same-sex couples. To counter this argument, those in favor of same-sex marriages have noted that marriage has always been permitted for heterosexual couples who cannot or choose not to procreate. Many of these arguments and their rebuttals appear within the Obergefell decision, with the majority largely adopting the positions against the moral rights and family values positions.

Legal Benefits of Marriage Equality

The debate over gay marriage extended beyond the right to marry alone. Same-sex couples sought the same tax and estate advantages, the same rights to surviving children, the same community property rights, and the same health care benefits as heterosexual couples.

Although same-sex marriages have occurred privately for years, only recently has the issue been litigated. The Hawaii Supreme Court’s 1993 decision in Baehr v. Lewin marked the beginning of serious litigation on the topic. After a series of victories and defeats on both sides of the issue, the Supreme Court’s 2015 Obergefell ruling finally resolved the issue in favor of extending the right to marry, the recognition of same-sex marriage, and the attendant benefits to same-sex couples throughout the country.

Prop 8 and the Defense of Marriage Act (DOMA)

Prop 8 was a ballot proposition brought by opponents of same-sex marriage to prevent same-sex marriages in California. When Prop 8 passed its opponents filed a lawsuit complaining that the Proposition violated the Due Process and Equal Protection clauses of the Constitution. The private parties that supported the Proposition and got it on the ballot wanted to defend the law, but the State of California itself refused to do so. The U.S. Supreme Court ruled in Hollingsworth v. Perry that private parties lacked standing to defend a state constitutional amendment where the state itself refused to defend it. As a result, the case was dismissed for lack of standing. Prop 8 was consequently invalidated and many feel that the decision set the tone for subsequent decisions.

Similarly, significant portions of the Defense of Marriage Act (DOMA) were ruled unconstitutional by the U.S. Supreme Court in 2013’s United States v. Windsor. DOMA was signed into law by President Bill Clinton in 1996 and barred federal recognition of same-sex marriages for purposes of receiving tax, insurance, immigration and other benefits. The Court struck down the federal law, stating that it denies same-sex couples the “equal liberty” guaranteed by the Fifth Amendment. The decision extended the right to federal benefits to legally married same-sex couples.

Marriage Equality Under Obergefell

Finally, in 2015 the U.S. Supreme Court’s ruling in Obergefell v. Hodges made it clear that the denial of the right to marry, the refusal to recognize legal same-sex marriages entered into in another state, and the withholding of marriage-related benefits to same-sex married couples were violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. As a result of the decision same-sex marriage will be made available throughout the United States, the states must recognize the legal same-sex marriages of other states, and the rights and privileges of marriage must be extended to same-sex married couples. The decision effectively eliminates all legal distinctions between heterosexual and same-sex marriages at both the state and federal level nationwide.

Additional Resources

Here are a few websites that contain additional information regarding the struggle for and against same-sex marriage equality around the nation:
• National Center for Lesbian Rights
• Marriage Equality USA
• Freedom to Marry
• Yes on 8, Protect Marriage
• National Organiza

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Lgbt Adoptions In Utah

Lgbt Adoptions In Utah

In 2014, same-sex marriage became legal in Utah, after nearly a year of court battles. This was a surprise to many Utahns, but not for Utah attorney. Our founder pioneered legal co-guardianships for same-sex couples in Utah long before same-sex marriage became legal in the Beehive state.

We are still strongly committed to same-sex couples in the state and we plan on continuing our support for the LGBT community. Since same-sex marriage adoption is relatively new in Utah, it is crucial to understand the laws surrounding adoption in Utah. If you are interested in same-sex marriage adoption, we can help.
A Landmark Decision

In December 2013, the U.S. District Court for the District of Utah found the same-sex marriage ban, passed by voters in 2014, to be unconstitutional. This resulted in many other state same-sex marriage bans to be overturned in the following months.

It seemed as if Utah, one of the nation’s most conservative states, was paving the way for LGBT rights. On June 26, 2015, nearly a year and a half after Utah’s ban was overruled, the Supreme Court ruled in favor of same-sex marriage, making it legal nationwide.

Although same-sex couples are allowed to marry and adopt children, legal challenges still persist. In late 2015, Utah’s 7th District Court Juvenile Judge Scott Johansen ordered a foster child to be removed from the care of a same-sex couple. He said that he had research to back up the claim that children do better in heterosexual homes. Needless to say, his order was reversed soon after.

LGBT Adoption in Utah

While challenges to this law will surely persist, we are strongly committed to the LGBT community in Utah. Because of our commitment to this community, we believe it is our obligation to explain the laws surrounding LGBT adoption in Utah. The types of adoption that are legal in Utah regarding same-sex relationships are:
• Foster care adoptions
• International adoptions
• Infant adoptions
• Joint LGBT adoptions where neither parent is biologically related to the child
• Step-parent adoption
• Adoptions for children conceived via artificial insemination or surrogate mothers

As you can tell, these are the same types of adoptions available for heterosexual partners, making LGBT and heterosexual adoptions equal.

Utah Child Support Calculator

One of the most difficult parts of divorce is figuring out the amount of child support one parent should pay the other to help cover the costs of raising the child. Every situation is different and the amount varies accordingly, but it is always nice to have some type of guidance to help make the decision as simple and fair as possible.
Luckily the Utah Department of Human Services has a tool called the Utah Child Support Calculator. This tool is designed to help you determine the amount of child support that should be required to be allocated from one parent to the other. While the calculator should be used merely as a guideline, it will help you get a better understanding of what would be a fair child support amount in any given situation.

THE CALCULATOR

Since the calculator is merely a guideline to be used to figure out a fair child support amount, it is not very long. It consists of 12 relatively simple questions, like mother’s and father’s monthly gross income and the number of children involved in the child support case, to estimate a fair amount. This is basic information that will be needed when it’s time to figure out the actual amount that should be allocated and to whom.

It’s important to remember that every child support case is different and the Utah Child Support Calculator is not 100% accurate but it is an excellent free tool that will help you get an approximate child support amount.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is Private Mediation For Family Law Cases?

What Is Private Mediation For Family Law Cases?
What Is Private Mediation For Family Law Cases?

Fоr thе readers оf thiѕ аrtiсlе, it iѕ important tо firѕt knоw whаt mediation is аnd hоw it саn bе beneficial tо parties thаt hаvе a conflict that nееdѕ tо bе rеѕоlvеd. Mediation is a fоrm of соnfliсt resolution that invоlvеѕ hаving a nеutrаl раrtу called a mediator discuss options for resolution оf thе dispute with thе parties invоlvеd. Mеdiаtiоn аllоwѕ thе parties invоlvеd to determine whеthеr оr not they wiѕh tо hаvе their аttоrnеуѕ рrеѕеnt during thе mediation ѕеѕѕiоnѕ. Whеn mеdiаtiоn оссurѕ withоut the раrtiеѕ attorneys рrеѕеnt, it is called private mediation. (Sorkin аnd Sоrkin)

Fоr family lаw cases рrivаtе mеdiаtiоn iѕ аvаilаblе fоr ѕеvеrаl different соnfliсtѕ including but nоt limited tо сuѕtоdу, сhild or ѕроuѕаl ѕuрроrt, divоrсе оr оthеr tуреѕ оf separation, diѕtributiоn of resources, аnd аllосаtiоn of dеbt. (Mеdiаtiоn in fаmilу lаw саѕеѕ, mediation of fаmilу law саѕеѕ) Privаtе mediation will assist the раrtiеѕ invоlvеd in the diѕрutе tо bеttеr their communication and nеgоtiаtiоn ѕkillѕ, wоrk on idеntifуing iѕѕuеѕ, fоѕtеring joint рrоblеm-ѕоlving, аnd explore ѕеttlеmеnt аltеrnаtivеѕ. (Thе Mеdiаtiоn Prосеѕѕ, FAQS) Privаtе mеdiаtiоn fоr fаmilу law cases аlѕо helps сhildrеn invоlvеd ѕо that thеу dоn’t hаvе tо tаkе ѕidеѕ оr fееl that thеу аrе caught in thе middlе of the dispute. (FAQS)

Privаtе mеdiаtiоn for fаmilу lаw cases rеԛuirеѕ bоth of thе parties invоlvеd tо соореrаtе in thе mеdiаtiоn рrосеѕѕ. It bеginѕ with аn оriеntаtiоn ѕо thаt thе parties can gеt tо know thеir mеdiаtоr аnd set uр a schedule, thеn thеrе is a finаnсiаl invеntоrу оf the parties finаnсiаl rеѕоurсеѕ and аѕѕеtѕ thаt may be invоlvеd in thе fоllоwing rеѕоlutiоn of the соnfliсt, аnd thеn the mеdiаtiоn sessions bеgin to focus оn thе рrоblеmѕ bеtwееn thе раrtiеѕ аnd how tо go аbоut rеѕоlving thеm. Thе iѕѕuеѕ thаt thе раrtiеѕ hаvе аrе prioritized аnd аddrеѕѕеd ѕо that thе раrtiеѕ and the mediator саn fосuѕ on whаt iѕ mоѕt imроrtаnt firѕt. Thе mеdiаtiоn sessions саn last frоm 3-6 hоurѕ, dереnding uроn thе соmрlеxitу оf the iѕѕuеѕ that аrе addressed in that ѕресifiс ѕеѕѕiоn. (Sоrkin and Sоrkin) Privаtе mеdiаtiоn for fаmilу lаw саѕеѕ also hеlрѕ thе раrtiеѕ invоlvеd in thе diѕрutе tо ѕаlvаgе оr rеtаin thеir rеlаtiоnѕhiр ѕо thаt in thе futurе thеу can wоrk tоgеthеr аnd rеѕоlvе futurе disputes оn their own.

Thе mediators thаt gеnеrаllу work with family lаw cases аrе ѕресifiсаllу trаinеd аѕ licensed ѕосiаl wоrkеrѕ and рѕусhоlоgiѕtѕ as wеll аѕ аttоrnеуѕ in оrdеr tо bеttеr аѕѕiѕt the parties invоlvеd in соming tо a beneficial rеѕоlutiоn fоr both parties. (Mеdiаtiоn of Fаmilу Law Cаѕеѕ) Thе соѕt of рrivаtе mediation fоr fаmilу lаw cases vаriеѕ оn the case аnd the finаnсiаl situation оf the раrtiеѕ involved. Thеrе аrе рrоgrаmѕ аvаilаblе fоr frее оr reduced соѕtѕ оf mеdiаtiоn services, thоugh thе cost is much lеѕѕ thаn a court саѕе wоuld be.(Mediation of Family Lаw Cases) Dереnding uроn thе type оf саѕе thаt the раrtiеѕ involved nееd rеѕоlvеd will decide what type оf mеdiаtiоn should bе соnѕidеrеd for their ѕресifiс саѕе.

PREVENTING YОUR PRЕNUРTIАL AGRЕЕMЕNT FRОM BЕING DЕNIЕD

Whеn you wаnt ѕtаbilitу and сеrtаintу in your life, уоu muѕt аlwауѕ consider every аѕресt – inсluding divorce if things dоn’t gо as рlаnnеd. Prеnuрtiаl аgrееmеntѕ оffеr уоu the ѕtаbilitу уоu’rе sometimes lооking fоr. Thеrе are mаnу thingѕ уоu may have inсludеd in уоur рrеnuрtiаl аgrееmеnt, but уоu should know that these agreements аrе оnlу valid if уоu choose tо properly еxесutе it with thе hеlр of уоur аttоrnеу.

Reasons for Denial

In some саѕеѕ, уоu mау find thаt аn аgrееmеnt is not enforceable. Thiѕ will bе the rеѕult if аnу оf thеѕе thingѕ оссur:

Imрrореr Exесutiоn: If thе prenuptial agreement wаѕ nоt рrореrlу еxесutеd аt thе роint of сrеаtiоn, it could be deemed invаlid. It muѕt bе in writing and ѕignеd by bоth parties with nоtаrizеd ѕignаturеѕ. Thе ѕаmе gоеѕ for аnу аmеndmеntѕ that аrе made аftеr.

Not Exесutеd Voluntarily: These tуреѕ of соntrасtѕ must bе voluntarily еxесutеd. Thiѕ mеаnѕ thаt nеithеr of the раrtiеѕ ѕhоuld be coerced intо it, аnd саn choose tо bе rерrеѕеntеd bу indереndеnt соunѕеl.

Unconscionable: If thе рrеnuрtiаl аgrееmеnt is grоѕѕlу unfair, it can bе dеniеd. It саnnоt bе оnе-ѕidеd tо the роint of hurting thе оthеr party, and it саnnоt аѕk fоr anything illеgаl to hарреn in thе еvеnt оf divоrсе.

Lасk оf Rеlеvаnt Information: Each раrtу hаѕ a right to receive relevant and uѕеful infоrmаtiоn, such аѕ a dеѕсriрtiоn оf аll аѕѕеtѕ аnd financial liabilities.

Child Cuѕtоdу/Child Support: Yоu mау have learned thаt child сuѕtоdу аnd child support аgrееmеntѕ саnnоt mаkе аn арреаrаnсе in your рrеnuрtiаl аgrееmеnt. Thе соurt will usually diѕrеgаrd thеѕе things if thеу appear in your аgrееmеnt.

Evеn thе mоѕt соmmоn iѕѕuе dealing with divorce саn turn intо a biggеr issue if ѕресiаl precautions аrе nоt tаkеn.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Which Kind Of Adoption Do I Need?

Which Kind Of Adoption Do I Need?

Starting the adoption process begins with understanding the requirements to adopt. So, what are the requirements to adopt in Utah?

Adoption requirements in Utah include being 18 years of age or older. One may be married, single, or divorced, and a home study and in-home inspection will be conducted. Proper housing and personal space for the adopted child are required, as well as a background check for all adults in the home. Starting the adoption process in Utah begins with making the decision to adopt, understanding your options, and selecting your chosen adoption liaison to help you.

You must meet the requirements, which most often mandates a background check as well as attending adoption classes. You may also want to take a look at names and contact information for adoption agencies in your area.
Assuming you have already decided you want to adopt, now it is time to get that ball rolling! Are you excited? So are we! Adoption is what we are all about, and we would love to help you on your journey. The adoption process involves many things to consider. Read on to learn more about the adoption process in Utah, as well as some things to consider along the way.

If by chance it’s a stepchild you wish to adopt, you will want to read our article about adopting your stepchild in Utah. The process for adopting a stepchild is much less complicated than traditional adoption.

Adoption Requirements in Utah

• 18 years of age or older.
• Be at least 10 years older than the child.
• Child 12 years or older must consent.
• Must pass a home study.
• Adequate space for a child.
• Must be healthy enough to raise a child.

The requirements to adopt a child vary by state. We have listed a few of the requirements to adopt a child in Utah below. For a full list of requirements, you will want to contact the state of Utah directly.

Considering Adoption

Perhaps you have been unsuccessful with fertility treatments and cannot conceive naturally. Maybe you have an already-established family with biological children, yet you wish to extend your family. Or perhaps there are stepchildren involved that you wish to adopt as your own. Regardless of the reason you decide to adopt, there are so many things to consider.

Today, many single parents choose to adopt without a partner. Let’s face it; there are times when we have not met that perfect match, yet our biological clock is still ticking.

Or perhaps you prefer flying solo and do not feel you need a partner to raise a happy, healthy child. In today’s world, it is perfectly acceptable to adopt a child without a partner.

How do you feel about adopting a child as a single parent? Have you discussed your decision with your extended family? Are they just as excited as you, or are they a bit apprehensive about you adopting by yourself?

Making peace with your decision will help you focus on your journey toward adopting your child. One of the most difficult things to deal with is sharing your excitement with your extended family, only to be met with mixed responses that are not as favorable as you would have hoped. Remember though, that you have had much more time reaching your decision to adopt. Unless you have shared your day-to-day adoption ventures with your extended family, they may need some time to digest your adoption decision. Of course, you can go through the adoption process without family support, but having their support does offer much comfort during this exciting yet sometimes stressful time.
Going through the adoption process and fulfilling the requirements is easier with family by your side. When sharing your adoption decision with your extended family, be mindful that it might take some time for them to get on board with your decision.

Maybe they secretly had hoped to extend their bloodline. Perhaps they are concerned about the race and ethnicity of the child you adopt. They could be wondering about possible behavioral, emotional, and physical issues that can sometimes come with a child from a previously broken, unstable home. The most important thing you can do when sharing your decision to start the adoption process is to listen and validate their feelings. Give them some time to let the adoption news sink in. If telling your extended family in person makes you uncomfortable, one option could be to write a handwritten letter and mail it to them. This is a much more personal touch over and above what can be a cold-feeling email. This allows them to internalize your news, talk amongst themselves, and then circle back around to you after the news has registered.

Child Adoption Options

One may choose to adopt either domestically, internationally, or through the foster care system. You will want to consider your options and decide the route you wish to take.

Domestic Adoption

Just as domestic adoption implies, your child will be US-born. If you are holding out for a newborn, then you will want to follow the domestic adoption route. Although it is not impossible to adopt a newborn by other means, it is more unlikely.

Domestic adoptions can be completed within a few months.

You are apt to receive a more substantial medical and social history of the child you wish to adopt as compared to adopting internationally when medical history may not be known. Most birthmothers will know your first names, and many will have spoken to you on the phone or met you in person before the birth. This helps them get to know you, which builds trust and confidence in choosing you as the adoptive parents for their unborn baby.

Whether you choose to adopt domestically or internationally, neither are more-or-less expensive than the other. Rough estimates are provided in this article, but those numbers vary widely and do not imply what it will cost you to adopt a child. There is no waiting list. You instead will put together a personal profile for the birthmothers to review, and they will determine who will adopt their baby.

Your profile is a visual and written introduction that gives the birthmother a sneak peek into who you are as a family, so she can then have an idea of what it will be like for her unborn child. If you look young and have an active lifestyle, you are more likely to be chosen by a birthmother.

International Adoption

As implied, your adopted child will be internationally born. Choosing an international adoption means adopting an older child, but as young as an infant or toddler is possible.

You will rarely receive family medical history when adopting from another country. Although, you would receive medical information for the child. There is a perceived advantage of being very far removed from the birthparents distance-wise. It is natural to have a secret fear that someday the birth parents and your adopted child will reunite.

Although not impossible, this is more unlikely when adopting internationally. Whether you choose domestic or international, neither are more-or-less expensive than the other. When adopting internationally, the cost of travel is likely to significantly add to the overall costs.

Internationally, the costs of adoption can vary based on which country you adopt from. You will be put on a traditional waiting list, which is very different when adopting a child domestically.

There are age limitations in some countries, which may make you ineligible from being able to adopt. Other factors such as how many times you have been divorced, as well as how long you have been married could affect your chances for international adoption eligibility.

Foster Care Adoption

There are over 100,000 children in the foster care system desperately in need of a forever home. Your chances of adopting a newborn drop significantly when adopting through the foster care system, although it is not unheard of. Foster care provides a safe refuge for children who have been removed from their biological family home due to some sort of trauma they have experienced.

The State in which they reside puts the children in temporary custody, while the biological parents complete individualized requirements to earn back custody of their children.

The ages of foster children available for adoption are between infancy and 21 years of age. The Fostering Connections Act allows states the option to continue providing care for a child up to the age of 21 if they are attending school, working at least 80 hours per month, or suffering a medical hardship.

A bit more than half of all foster children are returned to their biological parents. The children remaining in the foster care system are many times adopted by their relatives or their foster family. Foster care adoption is similar to other types of adoption concerning the paperwork, requirement obligations, etc.

Due to the trauma that all foster care children have been rescued from, it is important to be prepared for and understand the healing process that will follow.

Continued counseling as well as working on personal issues is to be expected.

The cost of foster care adoption is very minimal, if not zero out-of-pocket.

This is another incentive for many adoptive parents to strongly consider adoption through the foster care system. Those wanting to adopt from the foster care system are strongly encouraged to first become foster parents. This is a wonderful way to access the compatibility between yourself and the child you are considering for adoption. Becoming a foster parent prior to adoption reduces the wait time to finalize the adoption process. That is a huge plus and a great incentive to put that foster-care-parent hat on first!

How to Choose an Adoption Agency?

If you have decided to adopt within the Utah, you will want to become familiar with the differences between local state adoption agencies and national adoption agencies. With so many things to consider, it is natural to feel a bit overwhelmed by the entire adoption process. It will all be worth it, though!

National Adoption Agency

A national adoption agency represents all 50 states with offices all over the country and tends to be very large. Adoption costs tend to be more expensive due to their overhead of having employees spread out all over the Utah, which differs from local state agencies with fewer employees.

You may be asked to satisfy more requirements due to other state adoption laws. It all depends on the state in which you are adopting in. There is naturally a larger selection of children to choose from with a national agency, as well as shorter wait times.

Local Adoption Agency

Local adoption agencies are smaller than national agencies, as they specialize in just one particular state. Many local agencies can still assist in finding children from all across the US and are not necessarily limited to selecting a child only from within their state.

These agencies are less expensive than a national agency, as their employee base is smaller.

You are apt to receive more personalized, face-to-face attention than you would a national agency.

Local agencies are overseen by the state, which in turn means they have more accountability than other types of adoption agencies.

Adoption Facilitators

Adoption facilitators are independent businesses specializing in matching adoptive parents with birth parents. They are basically like a liaison between the two parties involved.

These facilitators are not licensed adoption agencies. Facilitators arrange contact between the birth parent and the prospective adoptive parent. They are prohibited from using a photo listing to advertise children for placement.

Adoption Wait Times

For the future adopter, the wait can be the hardest part of the entire adoption process. There are some things you can do to distract yourself during this waiting process.

Maintaining a positive attitude is by far the best advice I can offer you. Overthinking during this time of wait can cause future adoptive parents to exacerbate their fears and doubts, creating a vicious cycle of worry. Constantly thinking about adopting a child can be referred to as adoption obsession. This is very typical of an adoptive parent that has never adopted a child before. With that said, it is not unheard of for adoptive parents who are not new to the process to suffer this same obsession.

Although putting a lot of time and thought into your adoption process venture is healthy and will help you become more educated, you do not want this obsession to get out of control!

You may find it helpful to reach out to other adoptive parents who have experienced the same things that you are going through to share your thoughts, concerns, and excitement.

What a wonderful way to get first-hand input that may hopefully help you along your adoption journey. Find others who have had feelings and experiences similar to your own to talk with. This is especially important if you have decided to adopt as a single parent. There is value in having others to talk to that have gone through or are going through the same experiences. We do not need a partner by our side to raise a happy, healthy child; but a human connection with others you can relate to can be a valuable experience!

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Kind Of Questions Will They Ask Me To Determine If I Am Eligible To Adopt A Child?

What Kind Of Questions Will They Ask Me To Determine If I Am Eligible To Adopt A Child?

So you’ve decided to adopt a child, but you know you’re only at the beginning of what is sure to be a long and difficult process. Of course, the adoption process has its ups and downs, but what you are most concerned about are the requirements you have to fulfill.

Through research, you certainly have found that the adoption process is complicated, with laws that vary by state and type of adoption. Understanding the requirements of an adoption will make things run a bit more smoothly when it comes time to officially start the adoption process. The following adoption requirements to adopt a baby should help you navigate the rest of the process as you go along.

Adoption Requirements to Adopt a Baby

Though adoption requirements vary depending on where you’re adopting from, there are some basic requirements you can count on for most adoptions. Following these requirements can set the stage for the rest of your adoption journey, making it incredibly important that you follow each of the rules carefully and comply with all requests from your agency (or other adoption entity you are using).

What Are The Age Requirements To Adopt A Baby?

For domestic and international adoptions, the age of the prospective parents must be legal age, which is 21 years or older. In Utah there is usually no age cutoff, meaning you can adopt a child as long as you are 21 or over. Typically for private and independent adoptions, the Birth Mother or Birth Parents select the Adoptive Family and some may have an age preference while others will not. For international adoptions, there may be age cutoffs depending on the country.

What Are The Medical Health Requirements To Adopt?

Stable medical health is necessary for prospective Adoptive Parents to adopt a baby. If one or both of the parents have a history of a chronic illness or are currently experiencing a serious illness, a letter from their primary physician is needed stating that they are physically stable and able to parent until the child turns at least 16 years old. Other issues, such as a history of substance abuse, may result in need for rehabilitation. All members of the household must prove that they are also physically stable.

What Are The Emotional Health Requirements To Adopt?

Stable emotional health is incredibly important for prospective Adoptive Parents. If one or both parents have a current psychiatric illness, or if there is a history of such an illness, a professional statement vouching for their emotional stability is required. A doctor’s statement indicating stability and ability to parent is also needed if there is, or was, medication use. All additional household members must also be emotionally stable in order for the home to be considered safe for the adoptive child.

What Are The Child Abuse Clearance Requirements To Adopt?

Any household members over the age of 18 must undergo a child abuse clearance process for every U.S. state. If anything is found, it most likely will prevent adoption all together. For international adoption, the process is the same, but varies with each country.

Will A Criminal History Prevent Me From Adopting A Baby?

A requirement of the adoption home study and both state and FBI clearances will be conducted for criminal history. If an arrest history is found, you will need to provide personal statements of the incident as well as dispositions. Rehabilitation will then be evaluated if needed. In some cases, certain criminal charges may prevent adoption all together.

What Are The Marital Requirements To Adopt?

For private newborn adoptions in Utah, some adoption professionals may have a marriage requirement. For foster care adoption in the Utah, there are no marriage requirements. For international adoptions, marriage requirements will vary depending on the country. Single parents are asked to name a guardian who would step in as the parent should the adoptive parent be unable to continue to fulfill that responsibility. Some adoption agencies also require the naming of the guardian in a will.

What Are The Financial Requirements To Adopt A Baby?

Though an income requirement is not usually specified, you will have to undergo an assessment to prove that you have the resources necessary to raise a child. The assessment will look over your income and assets, as well as proof of medical insurance. You will also need to make sure you have funds available for your adoption journey for expenses such as your adoption professional’s service fees, travel and Birth Mother expenses.

What Are The Residency Requirements To Adopt?

Some states have residency requirements for Adoptive Parents which can range from 60 days to 1 year. Some will have exceptions for residency requirements if an Adoptive Parent is a member of the military or if they are looking to adopt a child with special needs.

What Are The Home Environment Requirements To Adopt A Child?

A home study will determine whether or not the home is a safe, secure place for a child to live. Requirements may vary depending upon each state’s own safety requirements and some countries may request proof of ownership of the home. The prospective Adoptive Parent may need to provide references regarding their interpersonal relationships and interactions, if any, with children. The references can be singles or couples. Some adoption agencies allow references from family members. During the adoption home study and any agency applications, you will be asked to discuss your adoption and parenting plan. You need to live in a safe, well-maintained home, in a neighborhood conducive to family life. States differ on the requirement to have a separate bedroom for a child.

What Are The Adoption And Parenting Education Requirements To Adopt?

Some agencies will ask prospective parents to complete Adoptive Parent Education. This includes going over everything from the lifelong implications of adoption on the child and family, bonding and attachment, sharing adoption with the child and others, open or closed adoption, medical issues, academic issues, and emotional and developmental issues. International Adoptive Parents and foster care parents are often required to complete pre-adoption training

Why the Adoption Process is So Tough

The adoption process for Adoptive Parents is tough because adoption agencies, professionals, states and countries want to ensure that the child is going to a safe place. The child’s safety and wellbeing are of the utmost importance, making the extra requirements incredibly necessary. If you fail to comply with one or more of these requirements, you may lose your eligibility to adopt in your state or elsewhere.

Researching Adoption by State and Country

Stringent adoption process

To learn more about domestic adoption requirements in your state, go here. You can further research adoption laws by state by clicking here. For specific requirements on adoption in another country, visit this page. Through your research, you have certainly found that the adoption process is complicated, with laws that vary by state and type of adoption. Understanding the requirements of an adoption will help when it comes time to officially start the adoption process.

Why Do People Adopt?

Adoptive parents come from many different backgrounds and have varied reasons for adoption. Some common reasons to choose adoption include:
• The adoptive couple has struggled with infertility and cannot safely carry a child on their own to term
• The adoptive parent is single and is ready to start a family
• The adoptive parents are a same-sex couple who want to raise a child together

The Benefits of Adopting a Child

While many adoptive parents choose adoption as a practical means to start their family, the effects of adoption are often more profound and rewarding than they ever could have imagined. Adoption benefits families in countless ways:
• Adoption gives hopeful parents the opportunity to raise a child they wouldn’t have otherwise
• For couples struggling with infertility, adoption is a guaranteed way to add a child to their family, without the emotional and financial risk involved in IVF treatments
• Adoption allows couples and single adults to share their life with a child and enjoy the unique experience of parenthood
• Adoption builds rewarding, meaningful relationships between adoptive families and birth parents\
• Adoption provides loving, stable homes to children who need them

While there are many reasons to consider adoption, it is not for everyone. Every family should consider the pros and cons of adoption, as well as their own readiness to raise an adopted child, before beginning the process.

Are You Ready for Adoption?

There are many advantages of adoption, but adding to your family is a big decision. If you are considering adoption, you want to make sure that it is a good fit for your family before beginning the process. This may lead you to ask, Should I adopt a child? Is adoption right for me?

Here are five questions to ask yourself as you consider whether you are ready to begin the adoption process:
• Do I meet the legal requirements to adopt in Utah? Any adult may be eligible to adopt in Utah. However, you will need to complete a thorough home study process before you will be approved to adopt a child.
• Can I afford adoption? Adoption can be a significant financial investment, with the average domestic adoption costing around $35,000. You should research your adoption financing options and create a realistic adoption budget to ensure you are financially prepared for the process. There is a federal adoption tax credit to help with expenses and some employers offer financial assistance.
• Am I emotionally ready to adopt? You and your partner must both be fully emotionally invested in the adoption process and be prepared for all of its emotional highs and lows. If you have struggled with infertility, this means you need to give yourself time to grieve and let go of your dream of having a baby biologically before beginning the process.
• Am I ready to be a parent? It is easy to get so caught up in the adoption process that you lose sight of the big picture: parenthood. Adoption is a lifelong process, and you have to be certain that you are ready not only to adopt, but also to raise a child.
• Why adopt a child? Some of the most important factors to consider before beginning the adoption process are your own reasons to adopt a child. Why is adopting a child a good idea for your family?

1. Public or Private Agency?
Public child welfare agencies are government entities that provide a safety net for families. Each county and jurisdiction has its own department of social services responsible for caring for children and youth in foster care and those unable to be reunited with their first families are often available for adoption. Many state, county and city public child welfare offices recognize that LGBTQ applicants are excellent prospects to parent youth in their care. The disadvantages of public agencies are the bureaucracies involved and the lengthy period it can take to complete the process. The advantages are the very low (or no) cost to adopt and the occasional, short-term financial stipends to help you support your new child.

Private agencies are licensed and regulated by the state they reside in and are often non-profits. Many LGBTQ adults choose to adopt through private adoption agencies, especially those agencies with demonstrated sensitivity to LGBTQ applicants. While these adoptions can be costly, applicants are often treated very well and can exercise some control over the type of infant or youth they adopt.

2. What child is right for me/us?
Think carefully about the type of child you feel most able to parent. Please remember that adopting a child is primarily for the child’s benefit, not yours. If she has physical, emotional, or mental challenges, will she eventually thrive with you as her parent? If he has a high need for attention, are you prepared to let him have the spotlight? Would you consider adopting a child who comes with a sister or brother? Are you adamant that you must adopt a girl, not a boy or vice versa? Are you prepared to parent a straight teenager? Or are you pretty open to the kinds of children needing a safe, loving and permanent home? The more flexible you are, the greater the chances of success for both you and your child!

3. Do you have the necessary investments child-rearing requires?
These investments are far more than buying clothes, giving a weekly allowance, or saving for college, although those are important. Can you provide unconditional love to a child? Are you willing to get interested in activities for which your child shows aptitude? Can you be your child’s educational advocate with the school system? Can you lovingly establish, and enforce, reasonable limits? Are you ready to be completely out to your child? If you are partnered, will both of you share these commitments to your new child? If you answered yes to these, you are probably ready to make the necessary investments in the child.

4. Do you have the patience to wait for your child to show you love?
Some children, especially those older than age 5 or so, have a hard time bonding with, and trusting new adults. Are you ready for your new older child to have a very healthy dose of skepticism about you and your commitment to them? Are you prepared to wait for them to return your love?

5. Do you have the social and community resources around you that will help you and them along the way?
Will your friends and family embrace the new family unit? Does your community (i.e., LGBTQ resources, spiritual center, schools) offer events and groups that could be valuable to you and your child? Is there an active LGBTQ parent support group in the area?

6. Are you patient enough to successfully complete pre- and post-adoption placement counseling?
All agencies, public and private, will require you to complete some counseling before and after you adopt. Do you welcome that support or do you view it as intrusive and unwelcome?

7. Are you ready to be 100% honest and transparent with the agency worker?
The worker will evaluate you, your home, financial records, employers, family, medical and psychiatric history, criminal background and so forth to see if you are likely to become a good parent. It’s important to understand that the agency worker is not looking for perfect parents. She or he is looking for your honesty and a reasonably good match with a child in need of a loving home.

8. Have you had a major life event in the past 12 months?
For instance, have you separated from or lost a partner, moved across the country, experienced the death of someone close, lost your job, married your new love, suffered a significant illness or accepted major new job duties? If so please let your significant life events settle in for a while, then re-evaluate whether or not you still want to adopt. Avoid adopting as a remedy for or as an add-on to another major life event. The adoption process is a major life event in its own right. It is unwise to couple it with another life event.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is The Process For Obtaining Child Support?

What Is The Process For Obtaining Child Support?

Financially supporting a child is a significant legal responsibility for any two parents, no matter their relationship status. Child support is a way of ensuring that each parent’s financial share of raising the child is fair and equitable.

The purpose of child support—a series of ongoing, regular payments by one parent to the other for the benefit of the child—is to maintain a consistent standard of living for the child regardless of which parent has primary custody of the child. Both parents are supposed to contribute to the best of their ability until the child becomes an adult.

How Much Child Support You’ll Get

Every state has guidelines for determining child support. For example, in some states, courts determine the amount of support a parent should pay by simply using a percentage of the parent’s income. Other states’ calculations are more complicated. For example, some states evaluate each parent’s income and expenses, the amount of time each parent spends with the child, and the number of children that the parents are legally obligated to support.

What to Do When You Agree With Your Spouse on Child Support

When parents agree they are both legally responsible for a child and are willing to work together, they can often formulate their own plan for child support. Most states have approved child support calculators online that parents can easily access to determine the right amount.

Zero Support Agreements

Note that because child support is considered to belong to the child, a court or child support agency typically won’t approve an agreement for zero support unless there are extraordinary circumstances. A judge won’t, for example, okay any agreement where child support was used as a bargaining chip, as where one parent agrees to waive child support in exchange for the other parent agreeing to a certain custody arrangement. On the other hand, if, for example, one parent is medically unable to work and as a result can’t provide any financial support, the court might find this to be a good reason to approve an agreement for zero support.

Using Mediation for Child Support

If you and the other parent are trying to work out child support but can’t agree on a final number, child support mediation might help. In child support mediation, a neutral third party guides the parents through a discussion of the child support guidelines and how they apply to the parents’ situation.
If mediation is successful, meaning that the parents come to an agreement, the mediator will create a written child support agreement. If you’re unable to resolve support after attempting mediation, you can file a request for child support as discussed in this article.

Finalizing Your Child Support Agreement

Whether you negotiate on your own or get help from a mediator, after you and the other parent agree, you’ll need to present the final child support agreement to the court or the state child support agency for approval. Once the agreement is approved, it will be converted into an order to make matters formal. Don’t neglect to have the agreement entered as an order: Even though you might be on good terms now, making it official is the only way to ensure both parents continue to comply should the relationship turn sour.

How Do I Apply for Child Support?

The process for applying for child support depends on whether you were ever married to your co-parent.

Who Will Decide Child Support in Your Situation—a Court or an Agency?

When you’re divorcing the other parent, a state court will make child support decisions as part of the divorce. When you’re not married to the other parent, though, child support orders and enforcement can be handled by the state courts, a state agency, or both.

How to Apply for Child Support When You’re Getting Divorced

If you are getting a divorce from your co-parent, you’ll need to ask the court to evaluate support in your divorce petition (request). Here’s how that process usually goes.

1. Separate From Your Spouse
Two married parents generally can’t file for child support unless they are living in separate households. Living apart probably won’t be an issue once the divorce is finalized, but not all couples live separately while a divorce is pending. If that’s your situation and you need child support before the court finalizes your divorce, you can file an Order to Show Cause—a document in which you ask for temporary child support and require your spouse to explain to the court any reasons why the request shouldn’t be granted (“show cause”). (Note that some states require parents to “live separately and apart” for a period before filing for divorce.)

2. Request Child Support in Your Divorce Petition
Many states provide different divorce petition forms based on whether you have children. For example, in Utah, the form for a divorcing couple with children has an entire section dedicated to child support. If your state uses the same petition forms for couples with and without children, you’ll need to include a request for child support with your petition. The information you’ll have to provide includes names, birth dates, and addresses for the children.

3. Provide Financial Information to the Court
During your divorce, the court will ask both parents to submit financial information, including:
• Wages
• Childcare expenses
• Retirement account information, and
• Tax returns.
If you support other biological or adopted children, the court will need to know information about those children, too. The court will evaluate the information you provide in light of how you and your spouse are dividing custody.

4. Appear in Court if Necessary
Many courts require the spouses to appear at a hearing before finalizing the divorce. Depending on your divorce court’s procedures, the court might address child support at this hearing, or might require you to attend a separate child support hearing. In some states, courts determine the amount of support a parent should pay by simply using a percentage of the parent’s income. Other states’ calculations are more complicated.

How to Apply for Child Support When You Aren’t Married

If you never married your child’s other parent or got divorced without a child support order in place, you’ll need to apply for a support order. Each state has its own procedures for applying for child support in this kind of situation. For example, in some states you might have the option of applying directly to a state agency while in others you might have to get a court order for support. Your state’s child support enforcement program is the best source of information about how to apply.

Step 1: Open the Case
Either parent can open a child support case, as can a child’s legal guardian. Having an order from a judge for child support to be paid does not automatically open a child support case. After an application is submitted, the applicant will be contacted by their local office to assist with the process of obtaining a child support order with the court.

Step 2: Locate the Parents
Before a child support order can be made, both parents of the child need to be located. There is no guarantee they will be found, but the more information you have, such as the parent’s date of birth and Social Security Number, the easier it will be.

Step 3: File a Summons & Complaint
After the case is opened, the parent being asked to pay child support will be given a Summons and Complaint packet. This is legal notification that you have been named in a child support case. ] You only have 30 days to respond, or a “default” child support order may be ordered by the judge without your financial situation being considered.

Step 4: Establish Legal Parentage
If you have been served with a Summons and Complaint, and you do not believe you are legally responsible for the child or children you are being asked to pay child support for, you have the right to request proof. This is either DNA testing to determine parentage (which is more than 99% accurate), or proof that the parents were legally married at the time of the child’s birth. If you do not request proof, you can still be assigned legal parentage without your consent.

Step 5: Create a “Stipulated Agreement”
If you would like to avoid going to court, some local agencies offer “Family Meetings” that allow both individuals to meet with a child support caseworker, either together or separately. If both parents can agree on an amount, their signed document becomes the “Stipulated Agreement,” which is filed with the court. ] This option may not be offered in all child support offices.

Step 6: File the Support Order
If there is no Stipulated Agreement, a court date will be set. The judge will review the financial and other relevant information from both parties and decide on an appropriate amount of child support to be ordered If either parent can get medical insurance, the court will consider that cost in deciding the amount of child support ordered.

Step 7: Make or Receive Payments
After a child support order is set, payments are scheduled to begin. There are many options for payment but if the parent ordered to pay is employed, their employer will be required to make those payments by withholding the funds from their paycheck. This is mandated under Federal law for child support orders and does not imply a failure to pay. All payments are recorded and this can provide security for the parent paying support in case there is any disagreement.

Step 8: Enforcing the Order
A child support order is a legal court order. Parents who refuse to pay or delay paying their child support face enforcement actions that can include:
• Suspension of their driver’s license or passport
• Revocation of professional and occupational licenses
• Bank and property liens
• Interception of tax refunds
• Interception of lottery winnings

Also, by Utah state law, unpaid court orders get charged 10% interest.

As a last resort, civil contempt charges may also be filed. If you have trouble paying your child support, talk to your local agency right away. There are programs available to help parents who are trying in good faith to pay their support.

Step 9: Modify the Order (if changes are necessary)
If either parent or guardian has a change in circumstances after a child support order is set, which could be losing a job, changing jobs, or a change in custody or visitation, the order may qualify for modification.

Step 10: Closing the Case
There are many reasons why a child support case can be closed. The usual one is that the youngest child reaches the age of 18, is no longer a full-time high school student, and no past-due balances are owed. At that time both parents are notified by the child support agency, and the case stays open for 60 days after this notification. All records are maintained for at least four years and four months in accordance with federal law.

Essential Child Support Documents

Whether you’re filing for child support services for the first time, requesting an official child support modification, or just updating your current contact information, as the petitioner, you’ll want to have the following documents ready and available.

• A valid photo ID, such as your driver’s license or up-to-date passport
• Proof of your address, such as a recent rent receipt, mortgage statement, or utility bill
• Birth certificate(s) for the children for whom you are seeking child support
• The other parent’s contact information or any information you have regarding their current address or place of employment

Depending on the method and the status of your application, you will either submit scanned copies of these documents securely online or print or mail or drop off paper copies to your local child support office. Some states require original documents. Again, check with your local office for specific guidelines in your area.

Helpful Child Support Documents

There are a number of additional documents that may also be helpful when you file for child support. If the following are available and pertain to your child support case, you should plan to bring them to every appointment at your local child support agency or have them handy if you are completing an online application:

• Proof of paternity, such as an affidavit or the results of a DNA test
• Social Security cards for yourself and each of your children
• Proof of income, such as recent pay stubs and/or W-2 forms
• Evidence of recent child support payments and/or arrears statements
• Existing child support orders for each of your children, including any Uniform Support Petition documentation and/or a Notice of Determination of Controlling Order
• Your divorce decree, if applicable
• Additional financial documentation, including evidence of a real estate or personal property you own
How The Number Of Children Affects How Much You Pay

If you’re paying child support and you’re on the basic rate of child maintenance, the amount you pay will depend on the number of children you’re being asked to pay for.

The figures below assume that your children stay with the parent who receives child maintenance all the time.
On the basic rate, if you’re paying for:

• One child, you’ll pay 12% of your gross weekly income
• Two children, you’ll pay 16% of your gross weekly income
• Three or more children, you’ll pay 19% of your gross weekly income.

How Shared Care Affects Child Support

Many parents decide to share the care of their children. If your children spend some time with the paying parent, this will reduce the amount of child maintenance he or she pays. There are different ‘bands’ which determine how much child maintenance is reduced by. The amount of child maintenance is reduced for each child who spends time with the paying parent.

If over the year your child is with the paying parent between:
• 52 and 103 nights: child maintenance is reduced by 1/7th for each child
• 104 and 155 nights: child maintenance is reduced by 2/7th for each child
• 156 and 174 nights: child maintenance is reduced by 3/7th for each child
• 175 nights or more nights: child maintenance is reduced by 50%, plus an extra £7 a week reduction for each child.

Paying For Children From Another Relationship

If the paying parent’s gross weekly income is between £200 and £3,000, and they pay child support for other children, this is taken into account when working out how much they should pay.

The Child Support Service simply reduces the amount of weekly income that it takes into account. For example, if the paying parent is paying for:

• One other child, their weekly income will be reduced by 11%
• Two other children, their weekly income will be reduced by 14%
• Three or more other children, their weekly income will be reduced by 16%.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is The Difference Between Alimony, Spousal Support, And Child Support?

What Is The Difference Between Alimony, Spousal Support, And Child Support?

Alimony, also known as spousal support, is an amount paid from one spouse to another following a divorce. A judge may order alimony payments for a specified period of time or until the spouse receiving support remarries. Alimony is generally intended to help the spouse receiving it maintain a similar lifestyle to the one they were accustomed to during the marriage.1 Alimony is not granted automatically—the spouse needing the alimony has to ask for it.

Tax Treatment of Alimony Payments

How you treat alimony for tax purposes depends on whether you pay it or receive it and when your divorce was finalized. If your divorce agreement was finalized prior to December 31, 2021 and you make alimony payments to your ex-spouse, those amounts are tax-deductible. That means you can deduct the alimony you’ve paid from your taxable income for the year, yielding a tax break.

On the other hand, if you’re receiving alimony payments, you must claim them as taxable income on your return. Again, this only applies if your divorce agreement was finalized before December 31, 2021.

IRS Rules Regarding Alimony

The IRS has several requirements that must be met for spousal support payments to be considered alimony, and therefore, deductible for divorce agreements finalized before December 31, 2021.
To qualify as alimony, ex-spouses must meet these criteria:
• They cannot file a joint tax return.
• Payments must be made in cash, by check, or money order.
• Payments must be owed under a divorce or separation agreement.
• The divorce or separation agreement doesn’t categorize the payments as not being alimony.
• Spouses must not live in the same household when payments are made.
• There’s no liability to continue the payments if the receiving spouse dies.
• Payments aren’t treated as child support or a property settlement.

If you’re eligible to deduct alimony payments you made, you can do that on your Form 1040, using Schedule 1. You’ll need to enter your former spouse’s Social Security number or individual taxpayer identification number on the form. Otherwise, the IRS may disallow the deduction. If you’re receiving alimony and it’s considered taxable income, you’d also report that on Form 1040, Schedule 1. And you too will need to include your former spouse’s Social Security number or taxpayer identification number.

What Determines Alimony Payments?

Alimony isn’t one-size-fits-all; the courts can use a number of factors to shape payment amounts, including:
• Each spouse’s income and employment situation
• Their individual living expenses
• How assets were divided in the divorce
• The length of the marriage
• Each spouse’s age

Alimony can be modified after the divorce in certain situations. For example, if the paying spouse loses their job they can ask the court to reduce the payment amount. And likewise, if the spouse receiving alimony sees their cost of living increase they can ask the court to order a higher support payment.

Alimony vs. Child Support

The key difference between alimony vs. child support is the intended use of each payment.
Alimony is paid for the benefit of a spouse; child support is paid for the benefit of any children resulting from the marriage.

Child support is designed to be used to meet the basics needs of the child. That includes things like food, clothing, medical care, housing, and other necessities.

Tax Treatment of Child Support

Because child support is intended to benefit the children, it’s not considered taxable income for the person who receives it. Child support payment is also not deductible for the parent who provides it.

IRS Rules Regarding Child Support

As child support is neither tax-deductible nor taxable income, there are no reporting requirements for making or receiving payments. Parents do, however, need to take care when claiming children as dependents on their taxes. Generally, the parent that the child lives with for the greater part of the year is the custodial parent for tax purposes. This parent is able to claim the child as a dependent, assuming the rules for claiming dependents are met. The non-custodial parent can, however, claim the child as a dependent if a separation agreement or divorce decree specifies that they can. The custodial parent has to sign Form 8332 authorizing the release of their right to claim the child as a dependent.

What Determines Child Support Payments?

Whether child support is court-ordered and in what amount largely depends on the finalized custody agreement and state law.

For example, some states may not order support if both parents earn similar incomes and share custody equally. Or, some states may base support on the number of children in the household and the non-custodial parent’s income.

Types of Spousal Support

Not all spousal support is the same—the amount and duration of alimony will depend on the specific facts and circumstances of your case. Most states offer different types of spousal support, including:
• rehabilitative support
• temporary support
• lump-sum support, and
• permanent support.

Rehabilitative Support

Rehabilitative alimony is typically granted to spouses who don’t yet have the job skills or education to enter the workforce and earn enough money to support themselves. Put simply, the idea behind this type of alimony is to provide an unemployed spouse the necessary time and financial assistance to become self-supporting. The duration of rehabilitative spousal varies, depending on the facts of each case, but it’s generally temporary and can be reviewed at the end of the term.

Temporary Support

From beginning to end, a divorce can take some time to complete and typically requires one spouse to move out of the marital home. During this time, spouses must continue paying the rent or a mortgage, property taxes, and other joint bills and expenses. To address these financial concerns, a judge may order temporary spousal support to the lower-earning spouse in order to maintain the status quo and cover basic necessities during the divorce proceeding. This type of alimony ensures that both parties can financially support themselves through the process.

Lump-sum Support

Lump-sum support is a way for a paying spouse to alleviate the long-term requirement of monthly payments after the divorce. Lump-sum alimony is a fixed amount that can’t be modified later and is paid up-front, so the recipient spouse doesn’t need to wait for a monthly check. The court will typically determine what the total monthly future payments would be after the divorce, and order a lump-sum payment equal to that amount.

Permanent Support

Permanent spousal support typically continues until the recipient remarries or dies (or the paying spouse dies). Some states terminate permanent spousal support if the recipient cohabitates with a new partner, but each state has specific rules for cohabitation and alimony. Courts typically reserve permanent spousal support for long-term marriages where there is a large discrepancy of income.

Spousal Support Factors

Each state has specific spousal support factors for the judge to evaluate. Unlike child support, which the court usually determines by a formula, most judges have broad discretion on whether to award spousal support and if so, the amount and duration of the assistance.

Typically, courts will evaluate:
• the length of the marriage
• each party’s ability to work
• both spouse’s health and age
• the financial status of each party after the divorce
• the recipient’s need for support and the paying spouse’s ability to pay
• general principals of fairness, and
• how each party behaved during the marriage (in some states).

If you’re going through a divorce and need alimony, or if your soon-to-be-ex is requesting financial support, consult with an experienced family law attorney before you proceed.

How Courts Set the Support Amount

Leaving a support decision in the hands of a judge is risky business. This isn’t like child support, where the formulas are clear and pretty rigid. In most states, the amount and duration of spousal support payments are entirely up to the judge. Obviously, it’s preferable for you and your spouse to keep control of decisions about spousal support. If the two of you can agree to an amount of support and how long it will be paid, then that’s what the judge will order. It’s the only way to predict what’s going to happen. Only about a dozen states give judges even general guidelines for calculating support. In these states, the judge uses a formula that takes into account the length of the marriage and the spouses’ respective incomes to calculate a starting figure. Then the judge factors in other circumstances to arrive at a final amount and decide how long the payments will last.

Need and Ability to Pay

Once the court decides that one spouse is entitled to support, it will try to quantify that need and the other spouse’s ability to pay. The judge may take into account:
• how property is being divided in the divorce
• the standard of living during the marriage, and the dependent spouse’s ability to maintain that standard in the absence of support
• each spouse’s separate income, assets, and obligations (states define “income” differently, with some including unearned income and others limiting the definition more strictly)
• the length of the marriage (more significant in deciding how long support will last than in determining the amount)
• whether the spouses lived together before they were married and whether any part of the cohabitation should be included in the length of the marriage
• each spouse’s age and health
• the needs of the children, and whether child care responsibilities affect the dependent spouse’s ability to return to work
• whether the dependent spouse left the workforce to be a homemaker or raise children
• how long the dependent spouse has been out of the workforce, that spouse’s marketable skills, and what retraining might be necessary
• contributions that either spouse made to the other’s training, education, or career advancement
• the possibility that either spouse may acquire assets in the future (such as the maturing of stock options or a large inheritance), and
• any other factors that the judge thinks should be considered.

Earning Capacity
In addition to looking at actual income, a judge may examine each spouse’s ability to earn money. The idea here is that if you could earn significantly more than you are, but voluntarily choose a lower standard of living, your spouse shouldn’t have to suffer financially because of it.
If either you or your spouse has skills or education that you are not using—for example, if you are trained as a lawyer but are working as a sculptor—the court can “impute” to you a higher income than what you actually have. You may be ordered to pay support consistent with your earning power, not your actual income. And if you’re the recipient spouse, you might get support that’s consistent with your ability to earn, rather than what you actually earn—or you may be ordered to fend for yourself.

Fault

In some states, you can argue that fault should be considered in setting spousal support (you can make this argument whether or not you filed for divorce on the basis of fault). If the higher-earning spouse committed adultery, was abusive, or is for some other reason at fault for the divorce, the support payment may be increased. Of course, as the saying goes, you can’t get blood from a turnip. If there’s only a certain amount of support that your errant spouse can afford, the court won’t order an unrealistically high payment. More commonly, the spouse who receives support has payments reduced because of fault.

Beyond Spousal Support

Spousal support is usually just a temporary measure, designed to keep one spouse from running into financial trouble immediately after a divorce. Even if you’re receiving support, you are ultimately responsible for your financial future. Make a one-year, three-year, and five-year plan for where you want to be in your life, and include what kind of work you want to be doing and what you want in terms of salary and benefits. If you received significant property or other assets in the divorce settlement, invest them wisely and with an eye toward the future. Learn to budget, if you haven’t yet.

Understanding Child Custody

For many parents, figuring out child custody is one of the most difficult and most important parts of a divorce. When children are involved, either the court must decide or the parents must agree on how to handle issues like whether and how custody will be shared, who will make decisions for the kids, and how visitation will work.

Types of Custody Arrangements

There’s no one-size-fits-all custody arrangement; the terms of your final custody plan are supposed to be tailored to meet the needs of your family. The final custody order should normally address both physical custody (which parent the child lives with) and legal custody (which parent has the right and obligation to make decisions about the child’s upbringing).

Most custody orders divvy up custody in one of the following ways:
• sole legal custody and sole physical custody to one parent
• sole physical custody and joint (shared) legal custody
• joint physical custody and joint legal custody, or
• sole legal custody and joint physical custody (rare).

When an order specifies that one parent has sole physical custody, the judge will typically create a visitation schedule to ensure the child has the opportunity to enjoy a meaningful relationship with the noncustodial parent.

How Courts Make Custody Decisions

Almost all courts use a standard that gives the “best interests of the child” the highest priority when deciding custody issues. What a judge considers to be in the best interests of the child depends on many factors, including:
• the child’s age, sex, and mental and physical health
• each parent’s mental and physical health
• each parent’s lifestyle and other social factors,
• the emotional bond between each parent and child, as well as each parent’s ability to give the child guidance
• each parent’s ability to provide the child with food, shelter, clothing, and medical care
• the child’s established living pattern (school, home, community, religious institution)
• the quality of the child’s education in the current situation
• the impact on the child of changing the status quo, and
• the child’s preference if the child is mature enough to express an opinion.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is An Open Adoption?

What Is An Open Adoption?

Adoption is a process by which a child is born to one set of biological parents, and is then raised by different parents. The adoptive parents are the child’s legal parents. But just because the child is being loved and raised by his or her legal parents, should that mean that the biological parents, or birthparents, must forfeit all contact with them?

Many people say no, just because you don’t have the resources to raise a child should not mean that you have to cut that child out of your life completely. Children, too, have a right to know where they came from originally, and to establish relationships with their genetic parents, even if those people aren’t the primary parents.

The resulting custom is called “open adoption.” Open adoption can mean several different things.

The birthparents know who their child’s adoptive parents are, and vice versa. There was a time, not very long ago, when all adoption records were secret, and adoptive parents knew nothing about their child’s birthparents. Birthparents, too, let go of their babies and never saw them again. But adoptive parents need to know things like their child’s medical history, and birthparents need to know their child is well cared for and doing well. There can be contact between birth and adoptive families. Pictures may be exchanged, emails sent, letters written, and gifts given for birthdays and Christmas.

Adopted children may be encouraged to establish independent relationships with their birthparents. Rather than being cut off from their genetic roots, many adopted children are allowed and encouraged to get to know their birthparents. Birthparents may be treated like extended family. Some families invite their children’s birthparents to birthday parties or family dinners. The birthmother or birthfather is as much a part of the child’s life as an uncle or aunt, and is included in a similar fashion.

It avoids long searches for birthparents by adoptees. If an adopted child wants to know his or her birthparents, an open adoption makes that easier; the families already have some kind of contact. They do not have to spend years searching through old files and following rabbit trails. They can simply get their birthparents’ address from their parents or lawyers.

Different families will do open adoption differently. Many families, for example, are not comfortable including birthparents in the family, but are quite glad to send pictures and progress reports to birthparents several times a year. Others, however, feel that a child can never have too much love, and anyone who loves their child should be included in that child’s life. Open adoption often makes it easier for a birthmother to place her baby for adoption. Many know that they aren’t ready to raise a child, but still want to know the child is happy and loved. Open adoption provides them with a means to stay connected, to whatever degree, while still letting their child be raised by a loving family.

The Challenges of Open Adoption

Families who are looking to expand their family through adoption are bound to have many questions. In fact, it’s perfectly normal for any future parent to have questions about parenting, regardless of how they bring their new child into the family. Adoptive parents have even more questions to think about, because not only do they have to worry about raising a child, but also about the process of adoption itself. Often, one of the biggest questions is what the best arrangement with the child’s birth parent should be. Most parents know that they can choose either a private adoption, where the birth parents have no contact with the child, or an open adoption, where the birth parents do remain in contact. Choosing open adoption always leads to more questions as it’s not a black-and-white arrangement. Every family is different and has different needs when it comes to birth parent relationships, and sometimes these needs can change over time.

A Permanent Arrangement

One question that many adoptive parents have is whether an open adoption has to be a permanent arrangement. Most accept that that is the idea situation, but there can be circumstances that might lead adoptive parents to want to change the terms of an open adoption, or cancel contact with the child’s birth parents altogether. So what should adoptive parents do when encountering these situations? Will reducing or cutting off contact be harmful to their child.

In general, consistency is extremely important when it comes to raising children. Children need to know what to expect in order to feel comfortable and secure. Cutting off contact with the child’s birth parents unexpectedly, especially for reasons that are not understandable to the child, can lead to emotional challenges for your child. In an open adoption, when relationship problems arise between you and your child’s birth parents, it’s always best to try to work out your differences first before cutting off contact completely. However, there might be situations where maintaining frequent contact causes your child more harm. This is always a risk with an open adoption. Sometimes, for various reasons, a child is not able to handle a regular relationship with their birth parent. When this happens, you might have to make the decision to reduce contact, or end it altogether for a period of time (assuming you don’t have a legal arrangement that would prevent this).

Doing What Is Best for Your Family

When it comes to open adoption and the relationship your child has with his or her birth parents, there is no one size fits all solution. You have to choose the arrangement that works best for your family, and you might have to adjust that arrangement over time. If you are unsure of how successful your child’s relationship with his birth parents is, just sit down and have a conversation with him. An open adoption is never an easy thing. It’s bound to have its challenges, but with compassion, understanding, and open communication you will be able to successfully navigate through it as a family. Times have changed in the world of adoption. Years ago couples went to their local adoption agency, filled out the paperwork and waited for their newborn. Today’s adoptions are far more involved, expensive, and difficult to negotiate. The whole process can be a scary and daunting proposition. That’s why many couples now turn to an adoption consultant for help and guidance.

Never heard of one? You’re likely familiar with a wedding planner who coordinates all the details involved in putting together a wedding. In a similar way, an adoption consultant serves as an advocate for adoptive parents. Consultants help the pre-adoptive parents navigate the maze, create a profile, and connect with the best agencies and attorneys for them. With a consultant, your adoption will most likely go quicker and be safer. Chances are you’ll also save money, have less stress, and probably sleep better at night.

Just starting to consider adoption? This may be the best time to get involved with a consultant. The first step in approaching an adoption is a thorough and honest look at what’s involved and an assessment of whether adoption is a good decision for your family. Before you start the process, you need to know what you’re getting into, and have realistic expectations.

If you decide adoption is right for your family, there are a lot of decisions you need to make. Would you prefer a domestic or international adoption? Will it be an open adoption, closed, or somewhere in between? Do you want a newborn, or would you consider adopting an older child? There are pros and cons to each type of adoption and while some families are very comfortable with a fully open adoption or an older child, others prefer raising a newborn with less of a connection with the birth family.

Once you’ve narrowed the type of adoption you want, the journey truly begins. An adoption consultant can help you get started and work with you to put together a customized plan to help you through the process. You’ll learn about procedures, home studies, legal issues and the various levels of openness. A consultant can help you prepare for your interaction with birth parents and various adoption professionals and will work with you to put together a prospective parent profile. A great profile can make all the difference in how fast you’re selected by a birth mother.

Many couples pursue adoption after years of grueling infertility treatments that can leave them feeling frustrated and powerless. Those same feelings are often carried over into the adoption journey. Adoption is a whole new area that can seem overwhelming and even more uncontrollable than infertility treatments. A good adoption consultant can help prospective parents exert significant control over the domestic adoption process, especially the amount of time the entire process takes. Throughout the journey, a consultant will be looking out for your best interests. Unfortunately, some couples are so desperate for a child they’re seduced by less-than reputable people or are pressured into accepting a situation that’s not right for their family. An adoption consultant will be supportive and will remind you that you’re not looking for any birth mother, you’re looking for the right birth mother. She and your future child are out there and a consultant can help you find each other.

Closed Adoption – Another Option

Adoption is an old tradition in the United States, and like many old traditions, it has undergone serious changes throughout its existence. Public opinion about adoption has changed over time, as has cultural acceptance and its overall popularity. Not only have that, but the terms of adoption changed as well. In this day of technology and advanced communications, adoptions which allow the children to know who their parents were are more common. However, closed adoptions, in which the children never learn the identity of their biological parents, are still available.
Such adoptions were quite common in the past, reaching the height of their popularity just after World War 2. The idea is that when a young child is put up for adoption, the record of the birth parents is sealed, and the birth father is often not recorded at all. This effectively removes any chance for the adopted child to find his or her biological parents later in life. Naturally, because the closed adoption relies on the child having no idea who his or her parents are, it is only practical in very young children. The perceived advantages of this type of confidential process are that children grow up feeling an actual connection to their adoptive parents, and know no other life. Some parents feel that this is a more nurturing, more caring relationship to have with their adopted children, and that it allows them to have the same relationship with these children that they have with any biological children they might have.

However, this style of adoption also poses a fair number of concerns in the light of our modern society. Beyond the problem that older children cannot be adopted in this manner, adoptive parents with no knowledge of their children’s parental background are not able to make predictions about illnesses or other medical issues the children may have inherited from their biological parents. Additionally, many children who were adopted in closed adoptions find that they want to find their biological parents later in life, and have to go through a long search process to find them. Many see open adoptions as a more practical method in today’s world, and some critics of the confidential system even go so far as to say that making a child’s birth parents literally a state secret is a violation of human rights.

Here Is How Open Adoption Works:
1. Finding an Open Adoption Opportunity
A birth mother begins thinking about her “adoption plan,” usually with the assistance of an adoption professional and sometimes a friend or family member, and decides she wants to pursue an open adoption with the adoptive family she ultimately chooses. An adoptive family decides they too want to pursue an open adoption with the birth parents because of the many benefits of open adoption. The two parties then find each other either independently or through an adoption professional and decide to pursue the same open adoption plan together, including the types and amount of contact they are interested in sharing.

2. Sharing Pre-Placement Contact in an Open Adoption
If the birth mother and adoptive family were matched through an adoption professional, a social worker will likely introduce both parties to one another and set up a conference call or meeting, depending on how quickly both parties want the openness in their relationship to occur. If they find each other independently, they will likely begin meetings or phone calls with each other immediately. Emails, phone calls and even pre-placement visits are all common during this stage of the open adoption process. As the birth mother’s due date draws closer, contact may increase or decrease – it all depends on how much contact she wants to engage in during this time.

3. Interacting at the Hospital in an Open Adoption
The birth mother will likely have formed an “adoption hospital plan” with the help of her social worker that tells the family and the hospital staff her wishes during labor and delivery. In an open adoption, it is likely the birth mother will want the adoptive family to be a part of most of the events at the hospital. This may include being in the delivery room, being the first person to hold the baby, and more. Again, it all depends on what the birth mother feels is right in her situation.

4. Sharing Post-Placement Contact in an Open Adoption
Once placement of the baby occurs, it is common for the first couple of weeks or months to be limited on contact. It is an emotional time for everyone involved, and sometimes both parties need a little time before they reengage. This is one reason why emails are so popular, as they are a simple and convenient way of checking in with one another. Over the following months, contact will begin to increase, including more emails, pictures and perhaps even phone calls. Then at some point their first post-placement visit will occur, perhaps around a holiday or the child’s first birthday. The open adoption process is never truly complete, just as relationships also grow and change over time. While fully open adoptions like this one are not usually the norm, the ones who do participate in these relationships receive many invaluable benefits, as well as more family members! However, open adoptions are not for everyone. Both prospective birth parents and adoptive families should understand how open adoption works before committing to one.

Pros of Open Adoption

Birth Mothers

For some birth mothers, they are only able to pursue an adoption plan if they can maintain a relationship with their child. Open adoption allows them this opportunity. However they envision their future relationship with their child can become a reality simply by selecting a family open to that amount of contact. By choosing a fully open adoption, a birth mother can have a relationship with her child, without the mediation of an adoption professional, but still under the guidelines agreed to before the match with the family was made. Her relationship with the adoptive family can also grow naturally, and can increase or decrease in contact over the years, based on her comfort level.
Adoptive Families

Some adoptive families believe that open adoption is much more of an advantage for the birth parents and wonder, “What benefits do we get out of open adoption?” Well, a lot actually! Families accepting of open adoption usually will have an easier time finding an adoption situation because they will be eligible for women seeking an open adoption. Conversely, families only interested in a closed adoption will only be matched with birth mothers who are also seeking a closed adoption.

Many adoption professionals have seen a trend that open adoption relationships have a better chance of ending in a successful adoption than those in a closed adoption. The reason for this could be because a birth mother who chooses a closed adoption never truly gets to know the adoptive family, cannot envision what life would be like being raised in their family, and then decides not to go through with it. Instead, a birth mother that gets to know the adoptive family, can see her child growing up in their home, and can maintain a relationship with them, has a greater chance of committing to her adoption plan. Finally, something that is commonly overlooked is the fact that open adoption allows the adoptive family to stay current on the birth mother’s and her family’s medical histories. For example, after the adoption the birth mother finds out she has a heart condition – the same heart condition her mother has. This is valuable information for the family to know about their daughter, who may also be susceptible to the same heart condition, and they can prepare accordingly.

Adopted Child

In the past, adopted children who didn’t know their birth parents felt a huge piece of themselves missing, especially when they got older. They would often wonder what their birth parents looked like, what their laughs sounded like, what things they were good at, and more. As open adoption has become more prevalent over the years, more and more children either have some sort of relationship with their birth parents or know enough about them to fill that missing void in their lives. However, in closed adoptions, these voids remain. So this is one of the biggest benefits of all of open adoption, as it gives adopted children answers to some of the tough questions they otherwise would never have known, such as “Why was I placed for adoption?” and “Do my birth parents love me?” Open adoption allows a child to understand his or her adoption story, birth parents’ reasons for choosing adoption, cultural background, and much more than only an adopted child can truly explain.

Cons of Open Adoption

Birth Mothers

Some women decide to pursue an open adoption because they believe having this amount of contact will make dealing with the grief and loss easier. Sometimes, this isn’t always the case, as having contact with the child can actually make moving on more difficult. Furthermore, in most states, post-adoption contact is not legally guaranteed, as most states have not passed post-adoption agreement laws for newborn adoptions. It is up to the birth mother to pursue an adoption with a family she feels will uphold their end of the contact promised to her, and it is up to the adoption professional to ensure the family keeps agreement.

Adoptive Families

Most adoptive families are aware at how an open adoption can improve their wait times, their likelihood of the adoption being successful, and more. However, at the end of the day, some adoptive families are just not comfortable with any feeling of “co-parenting.” While open adoption is never co-parenting, those feelings can still occur during the periodic phone calls or visits while watching their child interact with his or her birth parents. Also, while rare, some birth mothers may request more contact than what was originally agreed upon. If the adoptive parents are not ready to participate in more contact, they may be put in the uncomfortable position of denying her request.

Adopted Child

Without properly explaining adoption to the child at an early age, and making sure he or she understands the situation, the appearance of his or her birth mother could result in confusion of who his or her “real” parents are. For an open adoption to work, the adoptive family must educate themselves on how best to teach their child about his or her adoption.

Furthermore, at some age, a child may decide he isn’t interested in seeing his birth parents any more, again putting the adoptive family in an uncomfortable position. In these scenarios, moving their relationship toward a semi-open adoption would be recommended.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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My Spouse Left The State With My Child What Do I Do?

my-spouse-left-the-state-with-my-child-what-do-i-do

It is not uncommon that after a marriage breakup, one of the parents might move out of state with the child(ren). If both parties consent, then there is no problem. If your spouse or partner makes the unilateral decision to move out of state, as you can imagine, the stress, fear, and anger you likely will feel can be overwhelming. There are few things during divorce that can be as scary. But be assured, that with the help of an experienced attorney on your side, you can get your child back. Whether they know it or not, the moving parent could be making a costly mistake that will haunt them as the custody battle goes forward. They may be jeopardizing their future custody relations with your child or children.

What Happens If The Other Parent Has Already Left The State?

Along with the complaint for custody and an emergency motion, there is a writ you can request which commands that the child be immediately returned to their home state. If the other parent remains out of state during the pendency of the custody case, you will most likely be granted temporary custodial parent status until a final decision is reached on permanent custody. The court will defer to the status quo and keep the child in the home state rather than cause more disruptions to the child’s routine. To remove children from their school, friends, and life as they know it, can be very traumatic for children. Therefore, the court will be hesitant to allow this to happen without a full custody trial. Since no two cases are ever the same, nothing is guaranteed. Like most situations, when it comes to legal decisions by the court, there are other factors that must be considered. For example, whenever the court makes a decision regarding a child, the court always must consider whether the decision is in the child’s best interest.

As mentioned above, there can be negative consequences for the parent who attempts to move the child out of state. One such example may be that the moving parent has demonstrated that they will put their personal interests above the best interests of the child or children. When a parent is willing to abruptly uproot the children away from their other parent that shows a total lack of regard for the critically important relationship the children has with each of their two parents. There is a consensus that it is better for a child to have a close and loving relationship with two parents. So if a parent disrupts that parent-child relationship, there must be a very good reason, otherwise it may backfire on them.

What Happens If You Do Nothing?

If your spouse or partner moves the children out of state and you do not immediately seek relief from the court, it creates an image that you may have consented or acquiesced the move. After a few months, if you try to convince the court that the move was damaging to your child(ren), the court may dismiss the motion on the grounds that if there was strong concern, you would have come to the court immediately. If you file immediately for an emergency custody order, it strongly supports that the other parent’s unilateral move of the child was not in the child’s best interest and clearly was not consented to by you.

Even if the move is agreed upon by both the parents, it is still advisable to seek temporary custody and visitation rights before the action. In this situation, if you need assistance in creating a viable temporary access order, contact an experienced and reputable family law attorney to help protect your custody and visitation rights during and after the litigation process.

What Should You Do If Your Spouse Leaves with the Children?

You have specific rights as a parent and you need to protect them immediately if your spouse leaves with the children. If you simply allow this to happen without any recourse, you may actually lose your rights when the divorce and custody case go in front of a judge. To protect your rights, immediately contact a Family Law attorney specializing in divorce and custody cases. The most important thing to do is to ask quickly – if you take weeks or months to act, the court will view it as if you don’t really care that much and it makes it look like you are just ‘going through the motions.’ Act fast, and demand that your children be returned to your care or that you are given equal parenting time with them. Nothing destroys a case better than not acting soon enough, especially if a parent takes the children out of state.

Get an Agreement in Place – your attorney should contact your spouse’s attorney immediately to begin working on an agreement. If you just show up and take the children, it could turn into a legal mess for you, so be patient and leave it to the attorneys. At the very least, the contact is documented so the courts will know you simply did not allow this to happen and that you are very interested in remaining in your children’s lives. Make the agreement reasonable and the chances that you will find common ground are higher than if you make a demand that seems too off-balanced in your favor. Ask for 50/50 parenting time and negotiate from there.

Create Visitation Schedule and Stick to It – the time you spend with your children will be scrutinized heavily during the divorce process. If you plan to fight for custody, make sure you are still involved in all parenting decisions for your children. You also need to make sure when the children are with you, you are there for them. Do not just pick them up and put them under the care of sitter, family member, or friend. Be there as their father/mother and spend quality time with them. This will matter when the case goes in front of a judge. In addition, do not miss any scheduled visits. If you have agreed to a schedule, stick to it so missed times cannot be used against you during the custody hearing. Be on time, be engaged with your children, and unless you are taking pictures or videos of the children having fun with you, keep your phone in your pocket.

What Happens When One Parent Wants To Move Away With The Children?

Generally, a parent who has a permanent order for sole physical custody (also called “primary physical custody”) can move away with the children unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. Talk to a lawyer to make sure you understand how the law applies to your specific circumstances.
If the parents have joint physical custody of the children and 1 parent does not want the child to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.

Keep in mind that, although the physical custody label (“joint” or “sole”) you agree to in your parenting agreement is important, if there is a dispute, the court will usually look at the actual parenting schedule at the time of the move, rather than rely on the schedule the parents put in their parenting agreement.

If you are worried that the other parent may want to move away with your children, or if you think you may want to move away with the children, talk to a lawyer before you make a parenting plan to make sure your plan protects your rights as much as possible.

Staying Close To Your Children If They Move Away With The Other Parent

You can make a parenting plan that takes into consideration that your children are moving away and changes the visitation so that you can still have quality time with your children. Click for help with parenting plans.
Also, thanks to the Internet, there are other ways for you to stay connected to your children, not just e-mail. There is something called “virtual visitation” that helps you have “visits” with your children through web-based camera-computer technology.

Can I Move My Children Out Of The State?

The answer to this question is very complicated and may depend on many different factors. We strongly suggest talking to a lawyer for specific legal advice on your situation. The laws on parental kidnapping also known as custodial interference, child concealment, or parental abduction, are different in each state. In some states, it may be against the law to take children out of state only if it violates a custody order or if there is an active custody case pending. In other states, the act of taking the children out of state itself may not be illegal unless the parent hides (conceals) the children from the other parent. Other factors that may be considered are whether the parents are married and considered to have equal parental rights or, in the case of unmarried parents, whether the father’s paternity has been legally established. Additionally, there may be a big difference between if you are planning a short trip out of state or if you are intended to move out of state long-term.

Again, please talk to a lawyer in the state you are thinking of leaving from who understands custody laws and criminal laws to determine what your state’s laws are and how they might apply to your situation.

Can I Get Temporary Emergency Custody Before Or After Moving With My Child?

If you are applying in a state where you and the child have recently arrived:

Under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), you can apply for temporary emergency custody in a state that is not the “home state” of the child if:

The Child Is Present In The State And Either: The Child Has Been Abandoned; Or It is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

Emergency jurisdiction is a temporary solution designed to protect children who are at risk of abuse or mistreatment. Only the state with “preferred jurisdiction,” usually the home state, can issue or change a long-term custody order. If cases regarding the same child have been filed in two different places, the judges are required to communicate with each other to decide which state will keep the long-term custody case.

The Other Parent Is Threatening To Charge Me With Parental Kidnapping If I Leave The State. What Can I Do?

If you have not left the state yet or you have left but have not been charged with kidnapping, we strongly suggest that you talk to an attorney who specializes in criminal laws in your state. Hopefully, the attorney can advise you on whether or not you are in danger of committing parental kidnapping if you leave and what possible court actions you can take before leaving to do so legally. If you have left, you can ask about what steps you can take to try to avoid being charged with parental kidnapping.

In some states, if you are criminally charged but you are fleeing a pattern of domestic violence or to protect a child, then you may have what is called an “affirmative defense” to the charge of parental kidnapping – but this can depend on your state’s laws and your specific situation. If you have enough evidence to prove this defense, you might be able to avoid being convicted. However, it may not prevent you from being arrested and charged with the crime and you can still suffer all of the consequences that could come with being arrested, such as losing custody. If you are fleeing domestic violence or to protect your children, it may be a good idea to collect evidence of the abuse before you leave, if at all possible, depending on your situation. Evidence of domestic violence or child abuse may include proof of calls to 911, police reports, medical reports, criminal convictions of the batterer, proof that you have seen a counselor and tried to get help, testimony from family, friends, or other witnesses, or anything that is evidence of an ongoing abusive relationship. Note: In some states, there are specific conditions you need to meet before or immediately after you flee to take advantage of these legal protections.

For example, some states require a victim of domestic violence to make a report to law enforcement before leaving the state to avoid being charged with a crime. You can ask an attorney in the state you left from for this information. A few states do not apply their parental kidnapping laws to victims of domestic violence, which is why it is important to speak to a lawyer in your state to understand what the laws in your state require.
Again, we strongly recommend that you talk to an attorney in Utah who understands domestic violence, custody and your state’s criminal laws before you make a decision.

Child Custody Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506


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Power of Attorney Inheritance and Name Change

Power of Attorney Inheritance and Name Change

Nominating a Power of Attorney is a crucial aspect to any Estate Plan. After all, this allows someone to make medical, financial, and other important life decisions on your behalf in the event you are unable to do so. It is important to choose someone you trust for the role, and for them to accept the responsibility.

As you consider who to select, it can be helpful to understand the power of attorney rights and limitations. This will help illustrate exactly what your POA can and can’t do — which can help provide more context as you begin Estate Planning. Keep reading to learn more about the following:

How Does Power of Attorney Work?

Power of Attorney works by allowing someone to make important decisions on your behalf, should you become incapacitated or medically unable to do so. The purpose of officially nominating a POA is to ensure that someone can act on your behalf in a timely manner should they ever need to. Without a POA, your family will typically have to go to court to appoint a guardian to handle these duties.
There are a few different types of POA, but the nomination process for each is similar. You can start by creating a valid Will online and then nominating a Power of Attorney using a state standardized form. They are tasked with putting your needs above their own, making it crucial to select a trusted individual for the role. Once signed and notarized, this paperwork will allow your POA to take action if certain conditions are met.

What Rights Does a Power of Attorney Have?

A Power of Attorney, often referred to as the Agent, has the right to make important life decisions on behalf of the person who nominated them, referred to as the Principal. Here are just some of the power of attorney duties:
• The right to make healthcare decisions, including diagnostics and continuing or stopping medical treatments.
• The right to select and hire doctors or caregivers.
• The right to decide on long-term living arrangements as they relate to medical care.
• The right to open a lawsuit on behalf of the Principal and sign any necessary legal documents.
• The right to receive certain forms of income on behalf of the Principal.
• The right to make personal, business, or investment-related financial decisions.
• The right to open bank accounts, write checks, or sell property for the Principal.
• The right to purchase life insurance policies for the Principal.
What Are the Limitations of Power of Attorney?
• While a Power of Attorney has robust legal rights when it comes to managing the affairs of the Principal, there are certain limitations to be aware of. These limitations are in place to help regulate the role of POA:
• The POA cannot transfer the responsibility to another Agent at any time.
• The POA cannot make any legal or financial decisions after the death of the Principal, at which point the Executor of the Estate would take over.
• The POA cannot distribute inheritances or transfer assets after the death of the Principal.
• The POA cannot change or invalidate your Will or any other Estate Planning documents.
• The POA cannot change or violate the terms of the nominating documents — otherwise they can be held legally responsible for fraud or negligence.
• The POA cannot act outside of the Principal’s best interest.
• The POA cannot make decisions before the document comes into effect — conditions will be outlined with approval of the Agent and Principal.
• The POA cannot be officially nominated unless the Principal is of sound body and mind.
• The POA cannot use the Principal’s assets or money as their own.
• The POA cannot take compensation beyond what is outlined within the POA agreement.

Why Do Names Matter In Estate Planning?

First and foremost, your name matters because you are the one creating the documents. If I have a power of attorney that says it was made by John Jones (instead of John Doe), that document simply won’t work the way I want it to.

Names also matter because your estate planning documents generally list people (1) to make decisions for you during your lifetime, if you cannot, and (2) to receive your “stuff” after your death. That’s really the core of what estate planning means.

Because there is nothing new under the sun, a lot of people have the same or similar names. How does this affect your estate plan? Attorneys often include additional information in estate planning documents to help identify the people named as your beneficiaries or representatives.

For instance, your will might provide, “My house shall be distributed to my only daughter, Mary C. Doe.” Even if Mary changes her name, you can be pretty certain that your executor and the probate court will understand or be able to easily figure out who you are referring to, since she is your only daughter.

That’s the main rule of thumb: As long as anyone can confidently identify the person named in your estate planning document, it is generally alright to leave the document the way it is.

Think of it from a practical perspective. After all, estate planning documents are created to be used. What potential problems could someone have in using your estate plan? If a name change would not cause any problems, then you may not need to change anything.

On the other hand, you want to make sure your estate planning documents work. If a name change could cause problems, delays, or other difficulties, a change can be a good idea.

When You Should Consider Updating Your Estate Plan?

I should go ahead and dispel a common myth: You do not need to amend your estate planning documents anytime something changes in your life. There are a lot of reasons why you should update your estate plan, but you should always talk with an attorney to see if a change is even necessary.

That being said, name changes are a big deal. Here are a few scenarios in which it may be a good idea (or even necessary) to update your estate plan:

Example 1. Let’s say your durable power of attorney appoints your daughter, Mary C. Doe, as your medical attorney-in-fact (i.e., the person who gets to make medical decisions for you). She then gets married and changes her name to Mary Doe Johnson (or Mary D. Johnson). The name change is reflected on her driver’s license and other forms of identification.

If Mary needs to act as your attorney-in-fact (e.g., talk to your doctor, get copies of your medical records, and consent to a medical procedure), will your health care provider recognize her as the person granted that authority in your medical power of attorney?

With medical professionals so concerned about privacy (as they should be), there is a good chance that such a different name could give them pause before talking with your daughter. After all, how do they know that Mary is who she claims she is?

Mary might be able to sort things out — for instance, she could show her marriage license or court papers establishing her name change. But who keeps those documents on them all the time? And considering that a medical power of attorney is often used in connection with emergency situations, you want to work EXACTLY when you need it. No delays.

So in this case, your daughter’s name change might make an estate planning update advisable, to help ensure there will be no problems identifying her.

Example 2. Another situation in which you might want to update your estate planning documents is when your representative or beneficiary has a common (or, at least, not one-of-a-kind) name. This isn’t really due to name change but rather a fact of life.

If your son is named John Smith, how do third parties (a bank, a hospital, a closing company, etc.) know that the John Smith standing in front of them trying to withdraw money from your bank account or trying to access your medical records is the same John Smith named in your documents?

Again, you want your estate planning documents to work when they need to work. Amending your estate plan to include a relationship (“…my nephew, John Smith…”) or a birthday (“…my nephew, John Smith, born January 1, 1980…”) can help clear up any doubts the common name might raise.

Remember earlier when I said that the key with names in estate planning documents is to make sure you provide sufficient clarity so that anyone can confidently identify the beneficiary or representative named? When it comes to common names, consider the opposite:

If a third party might have any doubts that the person named in your estate planning document is the person try to use that document, you may want to update your estate plan to help minimize those concerns.

If you are reading this article and thinking, “Hmm, my last will and testament might be a little vague. I think I’ll write a note on it that provides more information,” — STOP. Making notes, adding language, crossing out words, or making any other changes to might invalidate that estate planning document.

Instead, as with all things legal advice, consult with a qualified estate planning attorney to make sure that any changes are made in the proper way.

Amending a power of attorney (POA)

If you decide that you want to make a change to your POA you will need to tell your estate attorney. The POA can only be amended by you, the granter, if you are capable of making and understanding this decision.
Examples of amendments that can be made are:
Removing power(s) from the POA
Add an attorney, this could either be a joint or a substitute attorney
Adding in power(s) or
Amending powers
Some amendments can be complicated to apply, however this will depend on the extent of the changes you wish to make. It is often easier and it costs the same, for the old POA to be revoked (cancelled) and a new POA registered in its place. Having a new POA may help to avoid any confusion or misinterpretation when an attorney is exercising their powers.
If a registered POA is to be revoked i.e. cancelled, you (the granter) will need to send:
A statement explaining your wishes and
A fully completed revocation certificate (schedule 2)

Types of Amendments

There are 2 types of amendments;
• Simple administrative amendment, or
• Full deed of amendment.

What Is A Simple Amendment?

This covers straight forward administrative amendments, such as a change of name or an address. You will need to provide your attorney with written details of the change that is to be made. It is very important that our records are kept up to date and that you tell us if the granter or any attorney changes address. A form provided if it involves a change of address. The amendment will become effective on the date it’s registered by your attorney.

What Is A Full Deed Of Amendment?

A full deed of amendment covers situations where you, i.e. the granter, wish to add a joint or substitute attorney, or amend the terms of a particular power or add extra powers etc. A fee is charged for registering the amendment.

You will need to inform your attorney about the amendment you want to make in the form of a ‘deed of amendment’. This document can be typed or handwritten. You should state clearly what is to be amended and sign and date the document. There is no set style for this notice. Please remember to specify which POA the amendment applies to. You should be aware that when the amendment is registered, that a copy of your deed of amendment will be attached to the new certificate of registration and copy of the initial POA document.

Some amendments can be complicated to apply, however this will depend on the extent of the changes you wish to make. It is often easier and it costs the same, for the old POA to be revoked and a new POA registered in its place. Having a new POA may help to avoid any confusion or misinterpretation when an attorney is exercising their powers.

Adding A New Attorney

If new attorneys are being added, they will need to confirm in writing that they are willing to act. If they are given continuing powers i.e. financial related powers, they must also confirm they are not currently declared bankrupt. Substitute attorneys only need to provide confirmation when they become active.

When Is An Amendment Not Suitable?

If a POA has been terminated an amendment cannot be made. Situations where a POA is terminated include:
• After the death of a sole attorney where there is no substitute or joint attorney
• After the revocation/cancellation of the full POA
• After the revocation/cancellation of the appointment of a sole attorney where there is no substitute attorney

What Happens if a Beneficiary Is in a Maiden Name?

Individuals often draft their estate plans many years in advance. Wills, trusts, life insurance, retirement accounts, and other legal documents bear the names of beneficiaries, and it’s not unusual for these names to change between the drafting of a document and its enforcement. When a grantor dies, their legal documents might name individuals who have since married, divorced, or even been adopted, therefore having their maiden name changed.

Wills and Trusts

Wills and trusts allow a grantor to name beneficiaries to receive assets after the grantor dies. The law recognizes that life circumstances, including marriage and divorce, result in the changing of maiden names, and the law aims to enforce the wishes of the deceased. If the identity of the intended beneficiary is clear, the law enforces the will or trust regardless of the party’s current name.
This also applies if the document misspells the beneficiary’s name or fails to use the party’s full legal name. It is always best to name all beneficiaries accurately and identify them with further information, which might include their home address and date of birth. Backing up the names with more identifying details allows a court and other parties to find and notify the intended beneficiary as easily as possible.

Other Financial and Legal Documents

Similar to wills and trusts, other financial and legal documents naming beneficiaries seek to transfer the assets to the intended beneficiary upon the death of the original owner of the asset. Often, the document identifies how an individual with a changed named must prove their identity. Beneficiaries must provide the financial institution any documents required to receive the assets as intended. Remember, this process may be new to you, but financial institutions make these types of transfers every day. The institution has individuals whose job it is to make these transfers, not to question or fight an intended beneficiary.

Methods of Proof

When a beneficiary’s maiden name has changed, a marriage certificate or copy of a divorce decree is sufficient to show the name change and prove the party is actually the intended beneficiary. If those documents are not available for some reason, affidavits from disinterested third parties can prove the name change and that the individual is, in fact, the person named as the beneficiary.

In a perfect world, every grantor updates their documents with correct names and addresses. Clarifying the name of the desired beneficiary avoids any possible confusion in the future. In fact, parties should periodically review any estate plan. Grantors should not treat estate plans as something forgotten once executed. However, the law recognizes that updating estate plans and other financial and legal documents is not something on the top of everyone’s to-do list.

The law prefers to connect these dots easily and see that the intended beneficiary receives the assets left to them upon the death of the original owner. A beneficiary whose maiden name has changed can prove their identity by producing a marriage certificate, divorce decree, or affidavit. Once the court sees appropriate documentation, it can distribute the funds, property, or other assets to the desired beneficiary.

Free Consultation For A Power of Attorney

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506


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