Tuesday, August 10, 2010

In Defense of Justice Over "Conflict Resolution"

Any time someone tells me that I need to see my role as a lawyer as a “problem solver,” I roll my eyes. You know:
“Eric, you need to stop litigating everything and be a problem solver”;
“Eric, we [meaning the opposing attorney and I] need to focus on solving our respective clients’ problem and stop the fighting between them”;
“Eric, I don’t have to justify my positions to you. Now, do we have an agreement or not?”
“If we remember that we are professionals working together to solve a dispute between two third parties [sic], we are more likely to behave like professionals.” (Diana Hagan, Bar & Bench (Salt Lake County Bar Association), Winter 2009) [1]

To continue reading, please visit http://www.divorceutah.com/in-defense-of-justice-over-conflict-resolution/

Saturday, July 24, 2010

Too Expensive

I've heard it for years, but only recently have I come to understand it myself; litigation is too expensive. Way too expensive. Counter-productively expensive. Ruinously expensive. Inexcusably expensive. Unjustly expensive.

Attorneys and the judges who hear their cases should be paid for a valuable service, no more no less, but that is not what is happening now. Litigation has become expensive because, at bottom, everyone's trying to pass the buck, and to those to whom the buck is passed, each of them is out to make a buck.

To continue reading, please visit http://www.divorceutah.com/too-expensive/

Saturday, July 3, 2010

KUDOS TO THE UTAH SUPREME COURT ADVISORY COMMITTEE ON THE RULES OF CIVIL PROCEDURE





For many years the Civil Rules Committee has been concerned with the increased expansion and cost of discovery and the impact of this on our civil justice system. Rule 1 states that the rules “shall be liberally construed to secure the just, speedy, and inexpensive determination of every action.” The discovery rules may have contributed to “just” results in the sense that they provide parties of sufficient means with the ability to discover all facts relevant to the litigation, but modern, expansive discovery has had a decidedly negative impact on the “speedy” and “inexpensive” resolution of civil disputes. Current civil discovery practice fosters one of the goals of Rule 1 at the expense of the other two.


Discovery has become the focus and the most expensive part of modern litigation. Discovery is viewed also as a primary contributor to delay.

Sunday, May 30, 2010

Child Custody and the Best Interests of the Family

There is an entrenched, but (in my opinion) illogical and myopic convention in Utah regarding child custody awards. While many appellate cases address the matter, my comments are based upon two cases that concisely summarize what is unfortunately considered the received wisdom on the subject of child custody awards: Pusey v. Pusey, 728 P.2d 117 (Utah 1986) and Tucker v. Tucker, 910 P.2d 1209 (Utah 1996). I hope I can refute this convention with the following comments.
Pusey v. Pusey, 728 P.2d 117 (Utah 1986) provides:
We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

Tuesday, February 9, 2010

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.

Monday, January 18, 2010

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/

Saturday, January 16, 2010

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).