Monday, September 21, 2009

It's Time for Ask Eric. Today's Topic: Utah Code Section 30-2-05: Husband and Wife, Property Rights, Separate Debts

Hello Eric,
As I was looking through the Utah Code the other day for sections relevant to divorce and settlement, I came across a section that one party in a marriage cannot be made responsible for debts incurred during the marriage by the other party (30-2-05: Husband and Wife, Property Rights, Separate Debts). I purchased a house in my name during the marriage. We don't live it in, and only I am named on the title and on the mortgage. If my spouse has no liability for this house, then my spouse cannot also have an interest in it, right?
Rational Reviewer of the Utah Code
Dear Rational:
Right, but also wrong.
You are correct about what § 30-2-5 of the Utah Code provides; however, there is more to this situation than what § 30-2-5 provides alone.
In fact, while § 30-2-5 is good law, it is one of those code sections honored more often in the breach, believe it or not, because other code sections and case law pretty much render § 30-2-5 a nullity. See the following case law below to get a good taste of how and why this is:

Defendant contends his equity in a home he purchased during the marriage should not have been considered a marital asset subject to division. Such an argument is contrary to the specific provisions of Utah Code § 30-3-5, and the rulings of this court in accordance therewith. The marital estate is evaluated according to the existing property interests at the time the marriage is terminated by the decree of the court. (citing Hamilton v. Hamilton, 562 P.2d 235 (Utah 1977); Jesperson v. Jesperson, 610 P.2d 326 (Utah 1980)). Fletcher v. Fletcher, 615 P.2d 1218 (Utah 1980).
"In a divorce action, there is no fixed formula upon which to determine a division of debts. However, such allocation must be based upon adequate factual findings which ruling we will not disturb absent an abuse of discretion." Rehn v. Rehn, 974 P.2d 306.
“Marital property ‘encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived,’” Sorensen v. Sorensen, 769 P.2d 820, 824 (Utah Ct. App. 1989) (quoting Gardner v. Gardner, 748 P.2d 1076, 1078 (Utah 1988)), and that the trial court may, in the exercise of its broad discretion, divide the property equitably regardless of its source or time of acquisition. Haumont v. Haumont, 793 P.2d 421, 424 (Utah Ct. App. 1990) (citations omitted). Watson v. Watson, 837 P.2d 1 (Utah Ct. App. 1992).
So, Rational, what this means in practice is that when a judge wants to keep property such as yours separate, he/she refers to § 30-2-5 in issuing the order. When a judge wants to "divide the property equitably regardless of its source or time of acquisition," he/she refers to § 30-3-5 and the case law that interprets it. My experience has been that courts will defer to the policy of § 30-3-5 and the case law that interprets it far, far more often than to the policy of § 30-2-5 and the meager case law that treats it. Practically speaking, unless there are new decisions from the appeals courts to bolster § 30-2-5, the provisions of § 30-2-5 are effectively subsumed in the provisions of § 30-3-5.

Sunday, September 6, 2009

I came across the following article in the Salt Lake Tribune:

"DA making defense attorneys pay for paperwork (Lawyers complain that the fee schedule is unfair)"
By Stephen Hunt
The Salt Lake Tribune

Here is a small excerpt from the article (the full articlate can be found at

Salt Lake County District Attorney Lohra Miller says the budget crunch has her office charging defendants in criminal cases for materials they had been getting for free.

Starting this month, defense attorneys are paying for copies of police reports, photographs, videotapes and witness interviews.

Miller argues the administrative cost of processing such materials should be borne by defendants rather than taxpayers. But defense attorneys on Wednesday said they worry the multitiered fee schedule Miller has devised will mean delays in getting information needed to build their cases.

Added defense attorney Clayton Simms: "There is something fundamentally unfair about having to pay to see the evidence against you."

I know Clayton Simms. He's not just a sharp attorney, he's a good man. And he's right. There is something fundamentally unfair about requiring you to pay the government (which is prosecuting you) to divulge the evidence it has against you.

The Utah Rules of Criminal Procedure on the subject of discovery are surprisingly straightforward:

Rule 16. Discovery.

(a) Except as otherwise provided, the prosecutor shall disclose to the defense upon request the following material or information of which he has knowledge:

(1) relevant written or recorded statements of the defendant or codefendants;

(2) the criminal record of the defendant;

(3) physical evidence seized from the defendant or codefendant;

(4) evidence known to the prosecutor that tends to negate the guilt of the accused, mitigate the guilt of the defendant, or mitigate the degree of the offense for reduced punishment; and

(5) any other item of evidence which the court determines on good cause shown should be made available to the defendant in order for the defendant to adequately prepare his defense.

(b) The prosecutor shall make all disclosures as soon as practicable following the filing of charges and before the defendant is required to plead. The prosecutor has a continuing duty to make disclosure.

I don’t do as much criminal defense work as I once did, but I do enough, and when I read the article about the SLC D.A. charging for discovery, I was angered (there’s no other appropriate word for it). There is just something (on various levels) perverse about making someone charged with a crime pay for the evidence the State has against him/her.

Worse, giving discovery documents to the public defender, but making defendants who hire private counsel pay only makes this bitter pill that much harder to swallow. But it gets even worse if the D.A. plans to charge attorney time for preparing and producing discovery as well. Mr. Xais, as quoted in the Tribune article ( is right: the D.A.’s office cannot in good conscience charge for attorney time for doing the job its attorneys are already paid to do.

Even worse, to hide behind the excuse that:

“In setting our fees, we held a public hearing in front of the council which was duly noticed. We also set these fees at an amount that merely covers our costs, they are not intended (nor do they) actually raise revenue,”

- Lohra Miller,

is a bit insulting (yes, insulting; sure, I could be more diplomatic, but that would only result in being more vague and/or appearing more weak in my position too) to the majority of us who don’t follow the schedule of the Salt Lake County Council and who don’t have the option of charging opposing counsel for our time when we ourselves produce documents in discovery.

What about these possible compromises?:

1. Charge a reasonasble fee for discovery, and if the case settles or the defendant is not convicted, refund the fee to the defendant.

2. For the majority of criminal prosecutions, discoverable evidence that is stored digitally (even if primarily for the D.A.’s own internal use) can, as part of the same system, also be produced to criminal defense attorneys free of charge or virtually free of charge, if the D.A. is willing to implement the extremely simple and relatively inexpensive policies and procedures involved. And virtually all discovery documentation can be stored and produced digitally. If we limit the scope of attorneys who practice in Salt Lake County (whether they live in Salt Lake County or not) to $100 per attorney donated (yes, donated) to the D.A. to outfit itself with equipment to digitize its criminal case files prospectively, including all documents, audio, photographs, video images, and other discoverable data, this can be done. Rather than charging $25 per “initial discovery packet” per case, for every case, we can, by paying a nominal fee up front (and yes, $100 is nominal) to equip the D.A.’s office with basic, reliable equipment for digitizing its files for good. Once it has the equipment, the D.A.’s office would be responsible for maintaining the infrastructure.

- A robust scanner for documents can be purchased at retail for $350. Each secretary in the D.A.’s office would get one of these to scan paper documents and hard copies of photographs for each case file.

- .pdf document production and manipulation/editing software could be purchased as a bulk government order for every attorney at the rate of about $100.

- I can’t imagine that the Salt Lake County Sheriff’s office or the D.A.’s office uses (or wants to use) film cameras or film video cameras anymore. I can’t imagine that the Salt Lake County Sheriff’s office or the D.A.’s office uses (or wants to use) tape to record audio anymore either. Virtually any computer equipped with Microsoft Windows can store photograph, video, and audio files, without the need to purchase any new equipment, and can e-mail these files without the need to purchase any new equipment.