Can Anyone Provide Proof that Questioning Children as Witnesses Is Inherently Traumatic?

Children are rarely indispensable witnesses in family law cases (but because I use the term “rarely” that denotes that there are in fact times when a child is in fact an indispensable witness). Children are often, however, extremely helpful witnesses for both litigants and the courts. I know because I have deposed children (yes, it can be done).

But you’d be hard-pressed to convince courts in family law cases that a child should be questioned in the discovery process. The e-mail exchange cited below is a real e-mail exchange between opposing counsel and me. Names have been changed to protect the attorney’s and the parties’ respective identities. This exchange distills much of the argument (if you can call it an argument) over child witnesses in family law cases. You tell me who has the better position.

To continue reading, please visit http://www.divorceutah.com/can-anyone-provide-proof-that-questioning-children-as-witnesses-is-inherently-traumatic/

Proposal to Revise Utah's Custodial Interference Statute

Among the bills proposed during the Utah State Legislature's 2010 session is H.B. 197, which proposed to repeal and replace the current criminal code section dealing with custodial interference. The link to the bill is http://le.utah.gov/~2010/bills/hbillint/hb0197.htm.

I have prepared this side-by-side comparison of the current version § 76-5-303 and of the proposed the revisions of H.B. 197, with my comments.


To continue reading, please visit http://www.divorceutah.com/proposal-to-revise-utahs-custodial-interference-statute/

Period of Minority - Duration of Child Support in Utah

So how long does child support have to be paid in Utah?

Utah Code § 15-2-1 (Period of minority) provides:

The period of minority extends in males and females to the age of eighteen years; but all minors obtain their majority by marriage. It is further provided that courts in divorce actions may order support to age 21.

Special findings of mental or physical disability are sufficient to warrant extension of child support beyond age eighteen. See Jackman v. Jackman, 696 P.2d 1191, 1192-93 (Utah 1985); Dehm v. Dehm, 545 P.2d 525, 527 (Utah 1976).

Moreover, orders extending child support until the anticipated date of high school graduation are upheld. See, e.g., Thornblad v.Thornblad, 849 P.2d 1197, at 1199 (Utah Ct. App.1993).

The courts can also enforce an agreement by the parties in a divorce action to continue support beyond that allowed by statutory law. See Despain v. Despain, 627 P.2d 526, 528 (Utah 1981); see also Balls v. Hackley, 745 P.2d 836, 837-38 (Utah Ct.App.1987) (affirming trial court's enforcement of parties' stipulation that child support would continue after eighteen years under specified circumstances).

However, in Kerr v. Kerr (610 P.2d 1380 (Utah 1980)), the husband was only required to pay child support until the minor child's 18th birthday, at which time if support was still needed, wife could petition for continuation of support based on circumstances existing at that time. Since the child’s 18th birthday was at the time of trial more than three years in the future, the court could not know and therefore could not find what his specific needs would be at age 18 or beyond.

Purpose of statute authorizing court in a divorce action to order support of child to age 21 is to give court latitude in determining whether exigent circumstances exist necessitating further support of dependent child rather than allowing him to become dependent on state. Court in a divorce proceeding has power to order continued support for child until age 21 when it appears to be necessary and when court makes findings of any special or unusual circumstances to justify order. Harris v. Harris, 585 P.2d 435 (Utah 1978).

France Mulling Making "Psychological Abuse" a Crime

The French parliament is mulling a law that would recognize a new crime of “psychological violence.”

Among the provisions is Article 17, which provides (translated):

“To submit a spouse to acts or words repeated with the effect of degradation of living conditions of the victim that may affect his rights and dignity and bring about a deterioration of his physical or mental health is punishable by three years of imprisonment and a € 75,000 fine.”

NPR reported on this development, then held an interview with Dr. Steven Stosny, a psychologist.

The following is my transcript of a January 8, 2010 interview broadcast on NPR between Michele Norris and Dr. Stosny. Here is the link to this interview:

http://www.npr.org/templates/story/story.php?storyId=122372371

To continue reading, please visit http://www.divorceutah.com/france-mulling-making-psychological-abuse-a-crime/

Utah Supreme Court Standards of Professionalism and Civility - an assertion to which I welcome reasoned responses

Utah Supreme Court Standards of Professionalism and Civility - an assertion to which I welcome reasoned responses:

I was recently asked this question: What's the most effective way to deal with fellow lawyers who exploit my good will and generally lie and cheat their ways through a case?

My answer:

Grab the bull by the horns and take these shysters to task. You’ll do more for professionalism and civility than any list of 20 commandments alone could ever do.

The Utah Supreme Court and the Utah State Bar apparently believe that by calling the shyster problem a matter of "professionalism and civility," we miraculously dispose of shysters by relabeling them as merely "uncivil" and/or "unprofessional."

The problem with this kind of thinking is that shysters by any other name still stink as much as ever, and if we think we can solve the problem by writing aspirational, non-binding "Standards," all we succeed in doing is sending the tacit--though very clear--message that while shysterism may be eloquently condemned, it will not be actively hunted down and eradicated. If shysters remain unchecked, and even allowed to wield the Standards as swords in the service of their sharp practices, the shysters win, and propogate.

Negotiation: An end in itself?

I recently came across this thought from a speech given by John Bolton, former U.S. Ambassador to the United Nations, that is particularly apt regarding mandatory mediation in divorce actions (he was not speaking on the issue of mandatory mediation, but his thoughts still apply):

Negotiation is not a policy. It is a technique. It is a way of achieving our objectives.

It doesn't tell us what our objectives are. The emphasis on negotiation as an end

in itself reflects . . . shallowness . . . and gives us little confidence that our interests

will be well-served.

Mediation is mandatory in Utah (yes, you can be excused from the obligation, but pursuing that objective does you more harm than good and/or costs you more than just jumping through the mediation hoop, generally--which I submit is by design). Mediation is often (not always) an effective means of resolving conflict to the mutual satisfaction of the parties. But there is nothing inherently effective about mediation nor is there anything about mediation that makes it the panacea for all the ills of divorce. Mediation works for people who want to compromise. Compromise, however, is not required of a party to a divorce action, or any legal action. If that were so, there would be no need for courts and judges, just mediators and/or craps tables.

Yes, yes, I know, I know. Insert Abraham Lincoln quotation here:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out

to them how the nominal winner is often a real loser: in fees, expenses and waste of time.

As a peacemaker, the lawyer has a superior opportunity of being a good person.” (“Notes

for a Law Lecture,” July 1, 1850, Abraham Lincoln and His Books by William Barton, Marshall

Field & Co., Chicago, Ill., 1920.)

(Note: Lincoln never actually gave this lecture, but I digress.)

Even Lincoln qualified his encouragement to compromise with "whenever you can," not with "by any means necessary." So what do you do with the party/parties that either will not or cannot negotiate (and thus compromise) in good faith or without compromising their interests away altogether? Some would suggest (and seriously too) . . . more mediation.

Too often, parties who do not settle in mediation (and for good reason) are chastised by the court for somehow failing to "do right" by the mediation process. Mediation is (or was), however, an alternative to litigation, not a substitute. When mediation, like negotiation, becomes an end in itself, it becomes shallow and gives participants in their divorce case little confidence that the interests of justice, equity, the parties, and their children will be well-served. This is why mandatory mediation (not mediation itself, but mandatory mediation) is, in my opinion, a dereliction on the part of the courts to meet their Utah State Constitutional duty to redress grievances properly before them.

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?
Sincerely,
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.