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Family Law

FAMILY LAW


PRACTICE AREA / UTAH FAMILY LAW ATTORNEYS

Our team of family law attorneys offer a full range of family law services in Salt Lake City, Utah. We carefully evaluate and address all cases, from most complex financial division or difficult interstate custody dispute to the simplest adoption or uncontested divorce. We are candid with our clients, telling them what they need to know rather than what they want to hear, in order for the clients to make sound decisions in the best interest of themselves and their families.

FAMILY LAW ATTORNEYS IN UTAH



Family law encompasses much more than just divorce, custody, child support and alimony. Our Utah-based family law attorneys provide virtually all of the family law services necessary to address any of your legal concerns.



HIGH ASSET DIVORCE & PRENUPTIAL DOCUMENTS



Bring challenging divorce-related matters to the attention of one of the experienced family law attorneys at Richards Brandt. We have an extensive background handling high-asset divorces involving pension plans, stocks, and hidden assets. Our background working with forensic accountants will help us determine the extent of your marital estate.

We offer a compassionate approach tempered with sound judgment when seeking to negotiate an effective arrangement for property division, spousal support, child custody, and visitation matters. The family law attorneys at our law firm know the right time to act as legal counselors and aggressive advocates in contested divorces.



RESOURCES





RECENT FAMILY LAW UPDATES





FAMILY LAW ATTORNEYS AT RICHARDS BRANDT IN SALT LAKE CITY



Lincoln Harris

Shareholder and Family Law and Construction Law Practice Chair

FREQUENTLY ASKED QUESTIONS (FAQS)



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE / FEATURED FAQS



Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE – CASE STUDIES





Utah Manufacturing Company Needed Employment Contracts For Key Staffers




Utah Construction Company Needed Planning For Business Growth & Protection




Utah Family Enterprise Needed Guidance and Representation to Sell Business

REVIEWS




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Are “Deadbeat” Parents Getting a Fair Rap?

Heather Tanana
January 2016

Society has labeled parents that do not pay court ordered child support as “deadbeats.” However, a study published in February 2015 (http://onlinelibrary.wiley.com/doi/10.1111/jomf.12188/abstract) looked into whether so-called “deadbeat dads” are in fact financially providing for their children in other ways. The researchers found that many disadvantaged noncustodial fathers spend an average of $60 a month on their child through the purchase of goods, such as food and clothing, as opposed to cash payments directly to the custodial parent through formal child-support arrangements. This amount of money appears to be an increase from the $38 per month on average that fathers in the study paid in formal child support. The study also found that the fathers that spent time with their children provided greater financial support than the fathers that did not visit their children.

In the legal context, even though a parent may be directly purchasing items for his child, unless he is also complying with the court’s child support orders, he may be opening himself up to contempt proceedings. At present, most courts do not credit goods purchased for a child against the parent’s child support obligation. Instead, those purchases are generally viewed as voluntary gifts for the child. The researchers in the above study suggest that the fathers in the study were motivated to give their children tangible items, as opposed to paying child support, because it provided an opportunity to bond with their children. In another article discussing the study, one of the researches stated:

What we learned is that these dads are purchasing a relationship with their children. . . . They want their kids to look down at their feet and say, “My dad cares about me because he bought me these shoes.” . . . The child support system weakens the child/father bond by separating the act of love from the act of providing.

Jill Rosen, Many “deadbeat dads” support children through gifts, not cash, study shows, HUB (dated June 14, 2015) available at http://hub.jhu.edu/2015/06/15/how-low-income-dads-provide.

Child support in Utah is typically a straight forward calculation based upon each party’s current income and the number of overnights per year that each party exercises with the child. The child support award assumes that each parent is contributing financially to their child beyond what is either paid or received in child support. For example, a father paying child support to the mother based upon a sole custody child support worksheet is providing the mother with funds for the benefit of the child, while the child is in the mother’s care. When the father exercises parent-time, he is expected to spend additional money beyond what he pays in child support in order to feed the child and do activities with the child during his visit. Is a child/parent bond better promoted by the parent spending money on the child or by spending time with the child? A custodial parent is unable to unilaterally withhold parent-time from a noncustodial parent simply because he is not current on his child support. However, parental rights are not absolute. Under Utah Family Law, parental rights may be terminated for a variety of reasons, including situations where a parent has only made token efforts to support or communicate with the child. At a minimum, the study reinforces that so-called “deadbeat” parents generally love their children and are expressing that love in their own way. Although we should not discredit that finding, at the same time, society generally recognizes that being a parent is more than simply loving your child – it includes the responsibility to provide a safe home and environment for your child and ensure that his or her needs are meet, both emotionally and financially. Overall, the recent study provides some interesting findings, but it is unclear whether they should have any impact on the legal system. Certainly, in order to do so, our expectation of parental responsibilities would also have to change.

Heather Tanana is an Associate Family Law Attorney with RBMN.

Inherited IRA’s Are Not Protected in Bankruptcy

June 2014

On June 12, 2014, the United States Supreme Court ruled that an IRA inherited by an individual (other than a spouse) is subject to a debtor’s creditors in a bankruptcy proceeding. Clark v. Rameker, 573 U.S. 7th Circuit (2014). In order to allow a debtor a fresh start, the bankruptcy code allows the debtor to exempt, protect or retain certain assets from his creditors while obtaining a discharge of his debts.

A traditional IRA, a Roth IRA and a 401(k) are exempt assets under the bankruptcy code. Prior to this Court’s ruling there remained a question if an inherited IRA is afforded the same protection as other retirement funds. Justice Sonia Sotomayor, writing for the Supreme Court, stated that “[n]othing about the inherited IRA’s legal characteristics would prevent (or even discourage) the individual from using the entire balance of the account on a vacation home or sports car immediately after her bankruptcy proceedings are complete”. Therefore, the Court held that an inherited IRA is not exempt or protected, and is subject to the beneficiaries’ creditors.

Designating a child as the beneficiary of retirement funds may not be the right choice if you are looking to provide creditor protection for your children’s inheritance. Setting up a proper third party trust can afford asset protection for your children not available if you leave the funds outright to them. Please call if you have any questions regarding the Supreme Court’s recent decision or to discuss options in setting up a trust with asset protection features.

Greg Steed is an Attorney at RBMN and the Practice Chair for the Trusts and Estates Practice Group.

Utah’s Petition for Writ of Certiorari in Kitchens v. Herbert – Same Sex Marriage

September 2014

In legal circles as in life, be careful what you wish for. The news is out that Utah has filed a Petition for a Writ of Certiorari in the same sex marriage case. Utah is requesting the United States Supreme Court to review the 10th Circuit’s ruling upholding the Utah district court’s decision that the Amendment 3 unconstitutional.

As you may know, Utah’s Amendment 3, Article I, Section 29 on [Marriage.] reads (1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage 070-416 or given the same or substantially equivalent legal effect.

In a surprising move to some, the plaintiffs in Utah’s same sex marriage case indicated that they intend to join in Utah’s request to have the 10th Circuit’s ruling reviewed. The Salt Lake Tribune reporter accurately noted: “victors rarely ask for a rematch.” The pundits have started weighing in on the chances of the United States Supreme Court accepting the case for discretionary review.

In a nutshell, the plaintiffs’ decision to join rather than oppose Utah’s petition should give the State and those who oppose same-sex marriage pause for thought. The reason that the plaintiffs have decided to join in the State’s request is that Amendment 3 and the arguments that Utah is advancing in its support represent the best case – in the plaintiffs’ view – to have the United States Supreme Court uphold the unconstitutionality of same sex marriage laws. As the articles discuss, other states and other federal circuits have similar challenges in the pipeline. For proponents of same sex marriage, Amendment 3 is one of the, if not the, least defensible laws percolating up through the federal circuits. The plaintiffs want to argue Amendment 3 is unconstitutional rather than some other state’s statute because it is an easier argument to make.

Appellate court decisions are an effective means to achieve favorable laws in many areas of the law and in industry and commerce. Savvy parties and legal advocates, however, carefully choose which cases to appeal and which to accept in defeat. Perhaps Utah will be successful, and as the pundits note, it is likely that Utah’s petition will be joined with another state or states similar to petition, meaning that the United States will be considering other same 070-460 sex marriage bans in conjunction with Amendment 3. Nonetheless, the plaintiffs’ decision to join Utah’s petition is a telling sign as to how Amendment 3 compares to other states’ laws.

Additional Articles:

http://www.sltrib.com/sltrib/news/58165963-78/court-marriage-state-utah.html.csp

http://www.sltrib.com/sltrib/politics/58263347-90/utah-marriage-state-court.html.csp

http://www.scotusblog.com/2014/08/same-sex-couples-to-support-court-review-on-marriage/.

Avoiding Common Pitfalls of Estate Planning

September 2014

Estate planning is a process—not an event—often wrought with common and routine mistakes, the most common of which include the following:

  • no planning at all;
  • failure to coordinate insurance/retirement assets with an estate plan;
  • adding individuals to bank accounts;
  • transferring family home in joint tenancy with an adult child; and
  • no planning for a disabled/special needs child.

A properly drafted estate plan can help avoid these mistakes.

THE PROBLEM WITH DOING NOTHING

When a person dies without a will, the person is said to have died intestate. The laws of the state where the person lived at the time of death will apply, and those laws determine the liquidation and distribution of the estate. Many people do not have a favorable opinion of, or trust, politicians. Yet, when you do nothing, you are letting your state legislature draft your estate plan. Under intestacy laws your property could ultimately end up in the hands of unwanted beneficiaries or administrators. Would you want an ex-spouse to be responsible for receiving or administering your property? Creating a trust can solve this problem.

FAILURE TO COORDINATE INSURANCE/RETIREMENT ASSETS WITH AN ESTATE PLAN

A common misconception is that a will controls the distribution of assets upon death. However, a will only governs probate assets (i.e., assets not controlled by trusts, joint tenancy, and/or beneficiary designations.) Today, many assets get transferred without consideration of a will. For example, joint tenancy assets pass to the surviving joint tenant and life insurance, annuities, and IRAs/401(k)s are controlled by beneficiary designations. These assets, upon death of the owner, pass to the named beneficiary regardless of the provisions outlined in a will. So, if an individual designates only one child as a beneficiary in a life insurance policy, but prepares a will naming all children as equal beneficiaries, the beneficiary designation in the insurance policy trumps the directions in the will, potentially creating problems the deceased never intended, and which could have been avoided by coordinating insurance/retirement assets with an estate plan.

ADDING INDIVIDUALS TO BANK ACCOUNTS

Adding a person to a bank account subjects the account to that person’s creditors. For example, when a parent adds a child to his/her checking account in order to allow the child to manage the bills and expenses, the child becomes a co-owner of the account, and that account becomes subject to the child’s creditors. Creating a revocable trust can protect assets while still allowing another person to pay your bills.

TRANSFERRING THE FAMILY HOME IN JOINT TENANCY WITH AN ADULT CHILD

A parent conveying title of their home to an adult child as joint tenants to avoid probate court is a routine mistake for several reasons. (1) This transfer constitutes a taxable gift under IRS regulations. (2) The home becomes subject to the child’s creditors who can then potentially force the sale of the home. (3) The sale of the home results in potential capital gains tax to the child. A revocable trust can accomplish transfer of real property without the ensuing problems.

FAILURE TO PLAN FOR A DISABLED CHILD

If you have a disabled or special needs child, you should consider leaving the child’s inheritance in a specially drafted trust to protect the child while keeping the child eligible for public assistance. An inheritance could cause forfeiture of public assistance benefits to a special needs child. Through a supplemental needs trust a child’s inheritance can be managed by a selected family member without sacrificing Medicaid or SSI benefits.

CONCLUSION

Proper planning creates peace of mind, streamlines administration, and preserves your property for your family and future generations. With attention and regular checkups we are able to catch the mistakes described above (and more) and make the necessary changes to avoid unnecessary problems and costs.

Same Sex Marriage – SCOTUS Watch is On

September 30, 2014

U.S. Supreme Court Justices began private meetings yesterday, September 29, 2014, and the Justices could decide whether to take up the issue of same sex marriage rulings from 4 federal appellate court decisions. Currently, 36 states have laws allowing or prohibiting same sex marriage. Same sex marriages are allowed in 19 states and the District of Columbia. Judges in 14 states have struck down prohibitions to same sex marriage.

State Laws – Wikipedia

Five states (UT, OK, VA, IN, WI) filed Petitions for a Writ of Certiorari requesting the Supreme Court to review federal circuit decisions affirming district court decisions finding same sex marriage prohibitions unconstitutional. In addition to the states, 30 corporations, including Alcoa, Amazon, eBay, General Electric, Intel, NIKE, Pfizer, and Target, have filed requests that the Supreme Court should address same sex marriage laws and recognize same sex marriages nationwide.

Some of the recent decisions that SCOTUS could review, include:

  • Fourth Circuit – Bostic v. Schaefer, Nos. 14-1167, -1169, & -1173, 2014 U.S. App. LEXIS 14298 (4th Cir. 2014), aff’m Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) (affirming grant of summary judgment to plaintiffs and enjoining enforcement of Virginia Marriage Laws at issue). [Petition for Writ of Certiorari filed Aug. 22, 2014]
  • Seventh Circuit – Baskin v. Bogan, Nos. 14-2386 & -2526, 2014 U.S. App. LEXIS 17294 (7th Cir. 2014) (affirming district courts in Wisconsin and Indiana which determined prohibitions on same sex marriages were unconstitutional). [Petition for Writ of Certiorari filed Sept. 9, 2014]
  • Tenth Circuit – Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), aff’m Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) (holding that Utah Code Ann. §§ 30-1-2, 30-1-4.1, and Utah Const. art. I, § 29 which defined marriage as between a man and woman and prohibited same sex marriage were unconstitutional). [Petition for Writ of Certiorari filed Aug. 5, 2014]
  • Tenth Circuit – Bishop v. Smith, No. 14-5003 & 14-5006, 2014 U.S. App. LEXIS 13733 (10th Cir. 2014), aff’m Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (holding same sex couples had standing to attack constitutionality of Okla. Const. art. 2, § 35 prohibition of same sex marriage). [Petition for Writ of Certiorari filed Aug. 6, 2014]

Recently, a Louisiana district court judge bucked the current trend of finding same sex legislation unconstitutional. This decision is Robicheaux v. Caldwell, No. 13-5090, 2014 U.S. Dist. LEXIS 122528 (D. La. 2014) (granting defendants’ motion for summary judgment and holding that Louisiana, under a rational basis standard of review, has a legitimate interest in defining the meaning of marriage through democratic process). This decision echoes the sentiment of the dissenting opinion in the Kitchens v. Herbert decision.

Timeline Banning & Legalizing Same Sex Marriage

The watch is now on; we shall see how SCOTUS decides to address or duck the issue.

U.S. Supreme Court Justices Back row (left to right): Sonia Sotomayor, Stephen G. Breyer,Samuel A. Alito, and Elena Kagan. Front row (left to right):Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

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