Divorce Lawyer South Salt Lake Utah

Divorce Lawyer South Salt Lake Utah

There can be no divorce without marriage. Both are interconnected since the beginning of civilization.

Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).

A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).

The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament.
The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.

The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.

A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.

Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures.
Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”

The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.

The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.

These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.

Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.

Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law.
Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.

Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.

There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.

South Salt Lake Utah Divorce

With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12).
Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.

There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.

Divorce Today

Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer.
A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?

A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?

A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?

A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?

A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel?
Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.

Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.

Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.

Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.

Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.

What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?

Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.

The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.

The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes.
Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.

Divorce Legal Framework

The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.

In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.

“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.

The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.

When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.

Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.

The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.

In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.

Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.

Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.

Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is.
Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.

The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.

The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination.
The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.

Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.

Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”

The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.

To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.

The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.

There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.

Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.

Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.

The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare.
Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.

Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.

The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.

The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.

Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates.
What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).

The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.

Custody and Parental Involvement

Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.

Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.

Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ”
Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.

Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.

Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.

The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.

Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.

Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.

Cohabitation and Alimony

No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.

Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement.
The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.

Divorce and Alimony

In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.

Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate.
The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.

Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.

Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.

Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities.
Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying.
If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.

Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.

Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.

South Salt Lake Utah Divorce Lawyer Free Consultation

When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. 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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False Accusations of Abuse During Divorce

False Accusations of Abuse During Divorce

In some particularly contentious divorces, it is all too common for one spouse to make false allegations of abuse in order to gain an upper hand. The presence of abuse by one spouse can have a huge impact on divorce litigation, especially insofar as determining custody of minor children, and can lead to criminal charges in some cases.

While wise Utah divorce lawyers strive to keep discord to a minimum when negotiating a divorce, allegations of abuse change the entire character of the process. Abuse allegations can be very difficult to conclusively disprove and, as a result, often make divorce litigation unavoidable.

If you are involved in a divorce and your spouse has turned to false accusations of abuse, you need to act quickly to prove your innocence. Our experienced divorce lawyers in Utah have seen nearly everything that can happen during the divorce process. We have the investigation and litigation skills to deal with false accusations of abuse and are prepared to handle anything your spouse can throw at you.

We understand that it is important to confront allegations of abuse immediately. Experience has taught us that negotiations may still be salvageable if we can disprove allegations early.

It is much more common, however, for such allegations to signal the end of any chance at a peaceful resolution. That is why we are always prepared to go to trial if necessary to defend the reputations of our clients and their rights to their children and property.

Splitting Up After a Long-Term Marriage: Why?

In 2010, former Vice President Al Gore and his wife, Tipper, announced their separation. By all outward appearances, the couple was happy and comfortable, and the announcement came as a shock even to close friends. Many asked why they were separating.

As a firm dedicated to the practice of divorce and family law on Long Island, we hear and understand the reasons men and women of all ages, in marriages of all lengths, decide to divorce. For long-term, stable couples, divorce oftentimes brings few fireworks, no accusations and oftentimes no infidelity. What contributes to the demise of a long-term marriage?

Consider this:

  • Al and Tipper Gore separated after 40 years of marriage. They raised children, sought and found adventure, and following a process of long and careful consideration, they decided to separate. From their statements, it seems clear they still love each other as friends, but chose to pursue their lives separately.
  • While the end of a long marriage can come rudely, it may also come as an emotional relief. As people live longer and healthier lives, fewer people are willing to accept an empty marriage that lost its love and intimacy long ago. In a recent paper from Bowling Green State University, researchers found the divorce rate for those over 50 has doubled between 1990 and 2010.
  • Divorce after decades means careful consideration about wealth, and often retirement monies as well. While two people can live together less expensively than two can separately, more women and men are choosing to go it alone, understanding the financial difficulties and potentially lowered quality of life that may follow.

By all accounts, the Gores remain happy with their decision and the new opportunities pursued by each party. While causes of divorce are many, changes in time and relationship often spell the end of a marriage.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for 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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Dating After Divorce

Dating After Divorce

Getting back into the dating world after a divorce can be exciting — as well as incredibly frightening. Before you decide to take this next step in your journey, there are a few questions you should ask yourself to be completely sure you are ready to date.

What outcome do I hope to achieve in this relationship?

What kind of relationship are you looking for? Are you all-in on looking for a new long-term partner, or are you simply looking for something light and fun? You do not have to have a desired outcome set in stone, but you should at least consider what your intentions are and what you hope to achieve.

You don’t have to have a serious intention with a relationship, but it’s good to at least set reasonable expectations so you can be more comfortable if you start to get serious with a new partner.

Have I taken enough time to heal after my divorce?

It can take some time to emotionally heal after a divorce. You should reserve some time for reflection and to get over the tough times you’ve recently experienced. If you are still feeling a lot of pain, hurt or anger, you may need more time before you seriously begin dating again. This is just as much for your potential new partner’s sake as yours — it is unfair to use another person as a means to get over your divorce.

What will I tell my children?

You should not give your children any details they do not need to know. It can be understandably difficult to bring up a new relationship to your kids, but you will not be able to hide it forever. Be as honest as you can, and speak with a counselor if you’d like further advice.

What to Know About Equitable Distribution in Utah

In Utah, the standard for divorcing couples is that their property will be divided in an equitable manner. Note that this does not necessarily mean an equal division, but instead a fair one. When making decisions regarding asset distribution, courts will consider what each spouse brought to the marriage and what each will need once the marriage has ended.

Some of the factors a judge will consider include the following:

  • The income and property each spouse had at the time of marriage and the time of the divorce filing
  • The length of the marriage
  • The age and health of each spouse
  • Any pension, inheritance rights and health insurance either spouse will lose due to the divorce
  • Whether the court has awarded or will award alimony
  • Whether the marital property is liquid or non-liquid
  • Each spouse’s likely financial circumstances in the future
  • The tax consequences of the divorce and asset distribution to each spouse
  • Whether either spouse has purposefully wasted marital assets
  • Whether either spouse has transferred marital property to another person or entity as a means of avoiding distribution

Only property acquired during the course of the marriage is divided by the court, with a few exceptions, such as inheritance or gifts. Examples of marital property include any income earned during the marriage by either spouse, the property purchased using that income, other properties purchased while married, retirement benefits either spouse earned during marriage and the appreciation of any assets (such as real estate or valuables) accrued during the marriage. Businesses and professional practices are also subject to equitable distribution if they can be classified as marital property.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for 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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Why Use a Lawyer?

Why You Need an Attorney for Divorce

Why You Need an Attorney for Divorce

When you file for divorce, you are required to provide the court with certain information. For example, you must give the court the legal authority to actually process your case.

divorce petition — occasionally also referred to as a divorce complaint — allows you to present certain facts that indicate you meet all jurisdictional requirements for the divorce. These conditions vary depending on the state in which you live.

If you have somehow made a mistake regarding the requirements for filing the divorce petition, a court will instantly dismiss it. Your case could also be dismissed if you fail to include any required item in the petition.

That’s not the only way you could make your case more difficult on yourself by improperly filing the petition. You must inform the court on what you are seeking in your divorce. If you do not understand the divorce laws in Utah, you could accidentally leave out requests for benefits to which you are legally entitled, which means you will not get that benefit once the divorce is finalized.

Importance of properly filing your divorce petition

For your divorce proceedings to begin, you must serve your spouse with a copy of the petition. However, you are not allowed to mail it. Instead, you may have a police officer or process server deliver the petition in person. This individual will also deliver what’s called a “summons,” which notifies your spouse of the due date by which he or she needs to respond.

What to Expect as a Witness in a Divorce Deposition

Divorce depositions, like those associated with most other civil cases, involve parties making sworn statements about certain elements of the case in question. This could include information on finances, assets or a variety of other issues.

In some situations, third-party witnesses might get called in to be deposed, as well. Attorneys representing either spouse could reach out and ask to speak to a witness directly to get key information. These witnesses may also sign an affidavit, a sworn written statement that contains information on issues relevant to the divorce case.

What happens at a divorce deposition?

To call in a witness to a divorce deposition, attorneys must serve that witness with a subpoena, either personally or via a police officer or process server. This subpoena will specify when and where the deposition will occur (typically in the office of the deposing attorney). At the deposition, a court reporter will be on hand to record everything the witness says. Both spouses and their divorce lawyers may also be present.

Witnesses in these depositions also have the right to legal counsel. This is especially important if a witness will be asked questions that would be protected by doctor-patient privileges or other sensitive issues. Because there are no judges present, lawyers have the ability to ask just about any question. Witnesses are required to answer honestly, unless an attorney instructs them not to answer at all.

To that end, it’s a good idea to at least speak with a family law attorney ahead of time if you are to be a witness at a deposition. This will give you an opportunity to go over the types of questions you should avoid answering (if applicable) and will give you a better feel for what to expect in this process.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for 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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4.9 stars – based on 67 reviews


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What Not to Do if You’re About to Get Divorced

What Not to Do if You’re About to Get Divorced

When you’re about to get divorced for the first time, you may start to feel more than a little overwhelmed. Those who are unfamiliar with the divorce process and do not receive proper advice often make some key mistakes that could impact them in the long term.

To that end, the following are some things you should never do before and during your divorce:

  • Speak with financial advisors you cannot trust or understand: You need to be able to get your financial affairs in order before your divorce begins. Any financial advisor you work with should be someone you can trust implicitly and who can explain your financial situation to you in a way you can fully understand.
  • Acting based on your emotions: It’s completely understandable if you feel like an emotional wreck during your divorce. However, you should never let your emotions dictate your actions. This is, of course, much easier said than done, which is why it’s so important to have an attorney who advises you on the strategy that’s right for you.
  • Attempt to conceal your assets: Many people mistakenly believe they can get away with concealing their assets to reduce the amount of their money or possessions subject to the division of assets. This is illegal and could impact your ability to receive a fair settlement if caught.
  • Try to stick to the same standard of living: One of the biggest errors people make during and after their divorce is trying to stick to the same standard of living. Your new financial situation may force you to be much tighter with money than you were previously, at least in the short term. It’s a good idea to get used to your new lifestyle before your divorce than to try to suddenly adjust to it afterward.

Tips for Navigating the Holidays When Dealing with Divorce

The holiday season can be a tough time for families dealing with divorce or separation, especially if there are children involved. There are, however, some ways you can navigate the challenges that come during the holidays in a way that minimizes potential conflict.

Below are a few tips to help you through this time of the year:

  • Consider starting new traditions: Just because you have celebrated one way in the past does not mean you have to repeat those traditions each year. Consider starting new traditions to which you and your family members can look forward.
  • Be flexible: If there are certain traditions you and your former spouse are both unwilling to part with, consider how you can compromise so that you can both enjoy them.
  • Consider what the kids want: Although your children should not be able to make the sole decision as to what you’ll do over the holidays, at least consider their wants and needs. Will they feel cheated if they don’t get to see a certain family member? Are there certain holiday traditions that are particularly meaningful to them?
  • Be transparent about your plans: If it’s going to be impossible for your children to spend time with both parents over the holidays, but you and your former partner have come to an agreement on how you will split holidays moving forward, be sure your children know that next year will be different.
  • Set rules for gifts: Communicate with your former spouse about how much money you will spend on gifts and the budget with which you’ll be working. Substantial differences in the gifts children receive from each parent can breed resentment.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for 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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Negotiating Divorce in Utah

There are some situations in which only one spouse will take part in the divorce proceedings. This could be for a variety of reasons — one spouse may live in a different state, for example, or simply be resistant to the divorce occurring. When only one spouse participates in court, the process is called an ex parte divorce. The divorce will still be valid, so long as you meet certain requirements.

Negotiating Divorce in Utah

First, you must meet the residency requirements of a divorce. You must file your divorce within the state or county that you permanently live, or where you have been present for a certain period of time according to state law. This time period could be anywhere from six weeks to a full year.

Under an ex parte divorce, you have an exception to the normal rule of jurisdiction. This means that the divorce court can have power over a person’s legal rights even if they lack a relationship with the state in question.

Next, you must give notice to your spouse of your intent to file divorce. A person working as a “process server,” typically a local law enforcement officer, delivers this notice. If you do not know where your spouse is currently located, you may have to look into other options to ensure that they get notice of the divorce action.

Once the process has been completed, courts are required to honor divorces that were obtained even in another state.

How to Negotiate a Fair Alimony Arrangement

Like any other aspect of your divorce, you can negotiate an alimony arrangement outside of the courtroom. Doing so allows you to have more control over your future, while also avoiding the expensive, time-consuming process associated with litigation.

Each spouse in a divorce must provide certain financial disclosures at the outset of the divorce, even if it’s obvious which spouse will be making the alimony payments. To determine an appropriate amount of alimony, you will need to consider the following:

  • Separate assets your spouse owns: You are entitled to know the value of any assets your spouse owns independently of you. This includes any assets gained before the marriage.
  • General income and expense reports: A detailed income and expense report will give you a clear picture of how your spouse is spending money. Major disparities in spending and income must be addressed in alimony discussions, especially if one spouse has a lot of money to spend on luxury items.
  • Bonuses and benefits: Additional income is available from overtime and bonuses. This may be unpredictable, but should still be included when calculating alimony. Know if your spouse receives certain work-related benefits such as sick pay, unused vacation pay, health insurance benefits, vehicles paid for by the company or any similar benefits.
  • The needs of the person receiving alimony: The purpose of alimony is to provide the spouse receiving payments with the support he or she needs to maintain a reasonably decent standard of living. Just because there is a large disparity of income does not mean the recipient is going to get large sums of money each month.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for 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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Do I Need a Family Lawyer to get Divorced?

Do I Need a Family Lawyer to get Divorced

Divorce law falls under the umbrella of family law. Very few people are able to effectuate a divorce without the assistance of a lawyer, as this is rarely possible or practical. The best way to protect your rights and your relationship with your children is to seek out the assistance of an attorney who handles family law on a daily basis. An experienced lawyer knows the ins and outs of the process, and can explain each step of the way to you while fighting to protect your interests.

Getting a divorce is more than signing a piece of paper that splits you from your spouse. You may think that there are no bones of contention between you and your spouse, but what often occurs as you move toward final separation is extreme emotion takes over and causes a serious roadblock. Certainly, parties who have legal representation meet these roadblocks too. But the difference is that a skilled divorce attorney knows how to defuse many of these situations and can guide you on which battles are best fought and how to fight them. The right family law attorney will handle your divorce with the proper mix of compassion and aggression in a cost-effective manner.

In the process of your divorce, you can expect to deal with the following issues:

  • Spousal support
  • Division of property and debt
  • Child custody
  • Child support
  • Visitation
  • Prenuptial agreements
  • Postnuptial agreements

How Does the Child’s Preference Affect Custody Proceedings?

When parents divorce, asking children to choose which parent they want to live with can be traumatic for all involved. In some cases, however, children are sufficiently mature to express a reasoned preference. In such cases, the child’s preference can be an important factor in shaping the custody arrangement.

Utah courts determine child custody based on a number of factors intended to protect the interests of the child. A child’s preference is not binding on the court, but judges have discretion to consider it. They often give it significant weight if the child can articulate cogent reasons for the choice. Issues to consider when a child expresses a custody preference include:

  • The older a child is, the more likely a judge is to give weight to the child’s opinion. The judge, however, is likely to independently assess the child’s maturity, regardless of age.
  • Judges are vigilant for signs that a parent has tried to influence the child’s preference. Coached testimony from the child will not only be disregarded, but also may work against the parent who pressured the child.
  • Judges are not required to accept a child’s preference, even if the child is mature. In fact, giving undue weight to a child’s preference in custody proceedings can be grounds for reversal on appeal.

Temporary Spousal Support During Your Divorce

While you are going through a divorce in Utah, temporary maintenance may be awarded to ensure that a lower earning spouse has an adequate standard of living during the time it takes to finalize the dissolution of the marriage. Sometimes, as a divorce lawyer, I see people don’t even think about this. Temporary maintenance (also called spousal support or alimony) is the term used in many states, but the law uses different terms such as temporary alimony or temporary spousal support.

In Utah, the law provides a formula for assessing the amount of temporary maintenance to be paid. By law, temporary maintenance is mandatory when the income of one spouse is two-thirds or less than the income of the other spouse. Temporary maintenance guidelines only apply when this requirement is met.

If the formula kicks in, the higher earning spouse will be expected to pay temporary maintenance. There is a maximum cap for utilizing the formula on the income of the payor.

Under the guidelines, to determine an appropriate amount of temporary maintenance, the court selects the lesser figure that is arrived at by the following calculations:

  • 30 percent of the income of the higher earning payor minus 20 percent of the income of the lower earning spouse
  • 40 percent of the combined income of both spouses. The income of the lower earning spouse is subtracted from this figure.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for 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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Types of Alimony in Utah

Types of Alimony in Utah

When a couple divorces, they are occasionally on uneven ground financially. This may be due to their unequal earning potential or because one has foregone their career aspirations to care for the couple’s children. Under some circumstances, one of the spouses may be required to support the other one financially. This support can be temporary in nature, long-term or even permanent.

Under Utah law, a spouse may seek spousal support to address any number of situations. For some, the need for support is temporary in nature and should last only a few months. For others, however, alimony is required in the long term due to inability to financially provide for his or herself in a manner to which the spouse is accustomed.

Temporary maintenance is sometimes ordered to be paid for a spouse who needs support while the divorce is being finalized. Generally this support is meant to be for only a few months and the obligation terminates once the divorce is final. Once this happens, a judge may decide if the support should continue and may then order the other to pay permanent alimony.

Permanent alimony, on the other hand, is designed to continue, usually on a monthly basis, without stopping unless and until the supported spouse gets remarried. To decide if permanent alimony is warranted, a judge will look at a number of factors. These factors may include the length of marriage, the spouses’ ages, each of their present and future earning potential and the contributions each spouse made during the course of the marriage. Not every judge will order alimony, but the longer a couple is married, the more likely a judge is to order alimony payments.

How Does Infidelity Affect Divorce?

For many couples, infidelity is an unforgivable act of betrayal. It can negatively affect a marriage to the point where divorce is the only option. Each year, a large number of couples end their marriage because one person is unfaithful.

Utah State recently adopted a no-fault divorce law. As a result, Utahers who wish to end their marriage for any reason, including infidelity, may cite that their marriage as irretrievably broken down.

While you may be angry with your spouse for cheating, the court system has no interest in why your marriage failed. Divorce is not a criminal proceeding. As a result, the courts do not punish spouses for being unfaithful.

If your spouse cheats on you, do you get the house? Does cheating affect equitable distribution? You may be surprised to know that equitable distribution is not affected by infidelity. Cheating can devastate an entire family, emotionally harm your children, and end your marriage, but the court is only concerned with obtaining a fair resolution to your marital dissolution. The court views marriage as an economic partnership. As a result, it divides the assets of a marriage equally between each partner.

The only time infidelity can affect equitable distribution, and as a result a divorce proceeding, is if the cheating spouse diverted funds from the marriage to further his or her extra-marital relationship. The court may require the return of the funds used outside the marriage. A skilled and aggressive attorney can fight to determine the amount of those funds and help you retrieve them.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will 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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Financial Planning After Divorce

After a divorce, it can take some time to adjust to your new financial situation. There is less money coming in, but still plenty of expenses to monitor. To that end, it’s important to sit down and closely analyze how a divorce will affect you financially before it is actually made official.

Financial Planning After Divorce

Here are some financial planning considerations to keep in mind as you prepare for life after divorce:

  • Thoroughly analyze your expenses. Many people do not completely realize the financial impact of their divorce until after it happens. To avoid being shocked, sit down and list out every one of your sources of income and your expenses. This will give you an accurate picture of what you can expect your financial state to look like after your divorce.
  • Consider your career. Are you going to need to find another job or embark on a new career to make ends meet? If so, you should start looking into your options right away so you are prepared once the divorce is finalized. Also consider any training you might need for a new career.
  • Figure out your living situation. It might not be realistic to hang on to the family home. Thus, you need to consider where you are going to be living. Will you rent an apartment? Do you have another place lined up? Will you be able to sell the home quickly?
  • Consider what you are losing. You’re not just losing an income. You are also potentially losing health insurance and a variety of benefits, including retirement benefits. All of these benefits should factor into your detailed financial analysis.

Tips for Keeping Your Divorce Relatively Inexpensive

In addition to being stressful for a variety of reasons, divorce can be an expensive process. Between the legal fees, property division, debt responsibilities and other costs, it’s possible you will come away from your divorce with some work to do in terms of rebuilding your financial health and stability.

However, there are some tactics you can use to help keep costs down in the divorce process. The following are just a few of them:

  • Negotiate as much as possible: This might be easier said than done in a contentious divorce, as your former spouse might not be willing to negotiate on certain (or any) issues. But whenever possible, negotiating allows you to compromise and avoid some expenses.
  • List your priorities: Create a full list of priority issues in your divorce, and determine how much you want to negotiate on those issues. This helps you form a plan of action for your negotiations and allows you to set priorities.
  • Be thorough with your record keeping: With the large amount of paperwork associated with a divorce (and marriage), it’s easy to lose track of some items. Be as thorough and meticulous with your record keeping as possible, and keep track of all correspondence, research, court orders, notes and other documents.

Seeking an Annulment in Utah

We’ve written about the difference between getting an annulment or divorce as well as an annulment in Utah. Though annulments have the effect of ending a marriage, they are different in various ways from divorce. Divorce dissolves a marriage, while an annulment declares it void.

Marriage is a legal contract. Just like any other contract, there are certain requires that the contract must meet in order for it to be considered valid. If one of the spouses can show that there was some material issue with the marriage contract, he or she may be successful in annulling the marriage.

Under Utah law, there are five grounds for annulment. The first is that one or both of the spouses was under the age of 18 at the time of the marriage. In order to legally enter into a contract, a person must be an adult (18 years old) at the time. If he or she is not, the contract is not necessarily void, but it is voidable.

A marriage can be annulled if one or both of the spouses was unable to consent due to mental incapacity. This can include any circumstances where one or both of the spouses is unable to give legal consent, such as if one were drunk at the time of the wedding, for example. If one of the spouses can prove that they were mental incapacitated at the time of the wedding, the marriage might be voided. In the same vein as mental incapacitation, if one of the spouses has been mentally ill for at least five years, the other may seek an annulment.

Sexual intercourse is considered part of the legal agreement of a marriage. If one of the spouses is physically unable to partake in sexual intercourse, the marriage may be annulled.

Finally, if a spouse can prove that the marriage was obtained through duress, coercion or fraud, it may be voided. For instance, if one of the spouses was threatened in order to obtain the marriage, this marriage would voidable.

Free Consultation with a Utah Divorce Attorney

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will 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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How to Deal with an Angry Spouse During Divorce

How to Deal with an Angry Spouse During Divorce

In some cases, a divorce can get rather contentious. I’ve seen it as a family lawyer.

If you have reason to believe your soon-to-be-former spouse will react with anger, or if you have already experienced this response, it is important to know how to deal with these issues appropriately.

Here are a few examples of what you might expect from an angry spouse and how you should respond:

  • False accusations of abuse. In some situations, one spouse might falsely accuse the other of abuse and seek a restraining order as a means of gaining leverage in the divorce process. You can prevent this from happening by simply refusing to get into any sort of conflict, whether it’s in person, over the phone or via email.
  • Not fulfilling verbal agreements. You might believe you’ve reached an understanding with your spouse about a certain issue, but suddenly he or she reverses course. To prevent this from happening, get every agreement in writing and signed by your spouse. If the other person goes back on his or her word, the document then provides evidence.
  • Limit access to money or assets. Some individuals try to limit their spouse’s access to marital assets. Before you file for divorce, make sure your name is on all of the assets the two of you own together, including bank accounts, credit card accounts, retirement accounts and mortgages. Open your own credit accounts separately as soon as you can to avoid your former spouse damaging your credit.
  • Spying. Your former partner may be tracking all of your activities, including what you are doing online. Do not say or do anything that could compromise you or give your spouse ammunition to use against you during court proceedings.
  • Actual physical or verbal abuse. If your spouse’s anger escalates to the point where he or she becomes truly abusive, it’s time to get law enforcement involved. At this point, the situation has become more serious than you needing to protect your best interests in the divorce — you and your kids could be in actual danger.

Rules to Help You Communicate with Your Former Spouse After Divorce

Although many people who go through a divorce would very much like to never have to see or talk to their former partner ever again, this is unfortunately not a realistic scenario for most couples. If, for example, you have children together, you need to keep in touch regularly if you have any hope of consistent parenting.

Here are some ground rules that can help you to more effectively communicate after a contentious divorce in what is typically an awkward and unpleasant situation:

  • Be smart about how you communicate. Whenever possible, keep all communication in writing if you know there might be a disagreement. If you have to make phone calls, keep them as brief as possible and only talk about what you need to discuss. The longer the communication, the more likely an argument will occur.
  • Stay impersonal. Never discuss any personal issues, as this opens the door up to emotional entanglements. Keep everything strictly business.
  • Do not send messages through children. This can cause a lot of long-term emotional damage to kids. Any communication between the two of you should be conducted directly, rather through an intermediary like your children.
  • Have your own life. You are divorced, which means you no longer need to be concerned about where your former spouse is going, what he or she is doing or thinking or who he or she is seeing. Keeping your lives as separate from each other as possible is the best course of action, and will help you to stay businesslike during your communication.
  • Analyze your relationships with your former partner’s family. If you had been married for some time, it is understandable to want to maintain relationships with your former in-laws. However, it is important you never discuss your former spouse, and maintain the relationship primarily as a friendship.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for 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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