Blogs & Success Stories

  • June 2020 Family Law

    OVERCOMING OBSTACLES
     We created this firm in order to help people to overcome life’s legal obstacles. There are lots of obstacles that occur in everyday life. People have difficulties and problems and they often turn to those who have increased knowledge or expertise in whatever area it is that they’re struggling in order to overcome those obstacles and those problems.
    During this time, it becomes more and more apparent how important it is to have people as a team around you. During this time of Corona Virus we’ve seen people who have stepped up, certainly our first responders, and are doing their part in order to keep everyone safe and to help everyone. That’s really what this world should be about, helping other people around you.
    We’re grateful that we have the ability, knowledge and expertise to help people in that legal area where some people may struggle and we’re here to be a resource for that.
    CHILD SUPPORT AMOUNTS
    Sometimes people have questions about when it’s appropriate or how they can come in and modify child support. If you’re modifying child support within a three-year period from the time that your decree was entered then you have to show that there’s been a substantial change of 30% or more in order to be able to modify that child support amount.
    After three years it’s a little bit easier and you can actually do it by motion instead of having to petition the court to modify the child support. You can go in, show the difference in the income and have that set out as to what child support should be based on the party’s new income. Inside of the three-year window there’s more that you have to show.
    If you believe that your spouse’s income has substantially changed you could come in and file and do some discovery to get the information that you would need in order to prove that case.
    CUSTODY MODIFICATION
    We often have clients come in who want to know what they would need to show in order to change custody. They may have a certain custody arrangement that’s been finalized in a divorce or in a paternity order and now they want to come in and change that.
    So, the first thing they have to do is show that there’s been some substantial change in circumstance that wasn’t anticipated at the time of the divorce or the time that the paternity order was entered. Often, that can be a difficult burden. But, if you can overcome that then the court’s just looking at what’s in the best interest of the children.
    If you are trying to completely flip custody then oftentimes you would need a custody evaluation. You would need somebody, an expert, to come in and look at the situation and say why a change would be in the best interest of the children. If you have that then there’s a good possibility that you’re able to come in and change custody. If you don’t have that then it’s a harder battle because you have to show the court why this change is in your children’s best interest versus what’s already happening.
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  • April 2020 Personal Injury & Business Law


    PERSONAL INJURY - LIEN REDUCTIONS = MORE MONEY AT SETTLEMENT

    One benefit that people who have been involved in an accident often don’t think about is that attorneys can help them reduce down their liens. There are lots of situations where we’re able to come in and help these people get a settlement, but then they have these big liens, outstanding balances and people who try to come in and subrogate the claim and we’re able to go in and help negotiate those things. 

    We’ve had a number of claims just over the last year where we’ve been able to get, for example, $100,000 settlement but the liens against that have been $40,000-$60,000. In one of those situations we were able to work with the hospital and get them to completely waive their lien so all of that money was able to go to the client instead of just being eaten up in medical care costs.

    So, a great benefit to having an attorney is not just being able to negotiate the upfront settlement amount, but also being able to keep more money in your pocket at the end of the day.

    PERSONAL INJURY - WHAT IS PIP (NO-FAULT COVERAGE)?

    People who have been involved in an accident have often heard about no-fault coverage and it’s often called PIP (Personal Injury Protection) in Utah. If you’re involved in an accident, regardless of who’s at fault, there’s some amount of money there that’s available to take care of your medical care up to that specified amount of money. What people often don’t realize is that there are other no-fault provisions that run with their insurance, which can allow for additional money, time off of work and for some additional funds to come to the person. We help them get all of those different benefits that are available under their coverage.

    BUSINESS LAW - COVENANT OF GOOD FAITH AND FAIR DEALING

    Sometimes, people have questions about what it means to have a breach of the implied covenant of good faith and fair dealing. What that means is that someone has violated the idea that parties are going to come in and they’re going to operate fairly and justly with one another when they enter into a contract.

    Now, the covenant of good faith and fair dealing runs with every contract in the state of Utah. So, if someone is not honoring their contract or they’re entering into the contract and doing something in a way that is fraudulent or is not on the up and up then there may be an opportunity to make a claim for the breach of covenant of good faith and fair dealing

    The place where you see this more often in our practice is in situations where an insurer has not honored one of the covenants they’ve made with their insureds. That can be, often what’s referred to as, bad faith.

    BUSINESS LAW - NON-COMPETE AGREEMENTS

    Folks often have questions about non-competes and whether they’re still valid in Utah. The short answer is yes. A few years ago the legislature came in and limited the scope of what are going to be enforceable non-compete agreements, but non-competes are still part of lots of provisions and contracts.

    They prevent one party from getting a lot of information from a company or employer that they’re working for and then taking that information and using it against that employer to be in a competitive industry, typically. Certainly, while the legislature wants the best players to play, we also want to enforce contracts and make sure that businesses feel comfortable hiring good talent. Then, having that good talent come in, learn information that may be used against them, but at least won’t be used against them for some period of time and in some geographic location.

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  • BUSINESS LAW - Contracts

    DOES A BUSINESS CONTRACT HAVE TO BE IN WRITING?
    Sometimes people ask what types of contracts have to be in writing. There is actually only a very small subset of different contracts that have to be in writing. Those contracts are governed by what’s called the statute of frauds, which lays out the different types of contracts that have to be in writing, But, for the most part contracts can be oral. Oral contracts are just as valid as written contracts they’re just harder to enforce a lot of times. It’s always nice to have a contract there as evidence. If you don’t have a contract that’s in writing, you still have the ability to say what the contract is.

    WHAT IS A BREACH OF CONTRACT?
    Some of our business clients want to understand what a breach of contract is. In contract law, you have a few different components that create a contract and then a violation of those things would be a breach of the contract. You have to have an offer, acceptance and consideration or a bargain for exchange that creates the contract and a reciprocal situation.

    If any of the covenants of the contract are violated or not upheld it would be considered a breach of the contract. Sometimes people ask if any breach counts toward voiding the contract. It depends on the contract. There are some contracts that could be voided if there is a material breach or a substantial breach and those things have to be pieces of the contract that are really important for the fulfillment of the contract. Sometimes, those things are laid out in the contract to say these are the material terms. Anything that doesn’t completely coincide with what the terms of the contract are can be a breach, it just may not be a material breach.
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  • FAMILY LAW - Child Custody

    WHAT IS CHILD SUPPORT AND HOW IS IT CALCULATED?
    A lot of people wonder what is child support and how is it calculated? Child support is the basic amount that’s required under the statute and under the Utah Child Support Guidelines for a payor spouse to pay the recipient spouse. And child support, basically, is used to take care of the children.

    Now, a lot people have questions and say, “well, how do I make sure that my ex-spouse is going to actually use the money to take care of the kids.” Unfortunately, you don’t have an ability to do that. The money goes to the spouse and the hope is that they’re taking care of the children. The amounts that are required under child support are set forth by a formula: the amount of income, the number of children and the number of nights that each party has the children are really the only factors that go into the calculation to determine how much child support is paid.

    If you get remarried, you can also look at how much income the new recipient spouse is making, but those things have a marginal difference in the amount of child support that’s paid. The amounts of child support really can’t vary a lot. They can’t be a big derivation from what the child support guidelines say, otherwise it has to be approved by the court and there has to be a reason for that derivation. A lot of people say, “well, can’t I just waive the child support?” And, the answer is, really, you’re not supposed to. Child support is for the children. It’s not actually for the recipient spouse. You shouldn’t be waiving children’s rights.

    CHILD SUPPORT – MEDICAL EXPENSES AND DAYCARE EXPENSES
    A lot of people have questions as to whether medical expenses and daycare expenses should be included as part of child support amounts. The answer is typically not. Usually, child support is its own separate, stand-alone issue. Then you have daycare expenses that are work related and medical expenses that are laid out in statute. Usually, those things are split 50/50 and the amounts that the spouses pay are based on what the actual out-of-pocket costs are for those different items.

    Sometimes, in a joint physical custody situation people will have obligations outside of those three things. They may also have to pay for extracurricular activities and things like that. When people say that they are already paying for child support why should they have to pay for medical expenses, the child support calculator really doesn’t take into account any type of out-of-pocket medical expenses that may be incurred. Those things are actually done separately outside of child support.
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  • CRIMINAL LAW - What to Do If You're Arrested, What If a Victim Doesn't Press Charges

    WHAT SHOULD I DO IF I’M ARRESTED
    If you are arrested, there is often a tendency to want to be compliant. You believe that you are innocent and you may want to share your entire story with the police. We are certainly advocates for good police work, but at the same time you want to make sure that you have your rights protected.

    You have a right to get an attorney, someone who understands the law, can be your voice and tell your story in a way that makes sense to the police as well as to the prosecutor. Because, if you are just saying things, unfortunately, the system is set up where all the things you say can be used against you. If you say too much or if you say things in a certain way that can be twisted then you are not going to have the recourse that you’d like to have. Make sure that if you’re arrested you contact an attorney and make sure that you have your rights protected.

    WHAT IF THE ALLEGED VICTIM DOESN’T WANT TO PRESS CHARGES?
    If you’re charged with a crime and the victim decides that they don’t want to testify, people often wonder if that just makes the case go away.  The answer is that it doesn’t.

    Usually, the prosecutor has discretion to determine whether they want to continue to prosecute the case. And that’s going to depend on what evidence is out there. If there is other evidence that they can use to build their case, they may feel like that’s strong enough to continue to prosecute the claim. Just because the victim decides that they don’t want to testify it doesn’t mean that the case necessarily goes away. You’re going to want make sure that you have an attorney that can protect your rights.
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  • FAMILY LAW - Cost of Divorce, Ways to Reduce Costs, Spouse to Pay Attorney Fees

    HOW MUCH WILL MY DIVORCE COST? FACTORS TO CONSIDER
    Everyone who is going to go through a divorce wants to know how much it’s going to cost. The answer is, it depends on several different things; how much your spouse is going to fight you, how many assets and debts you have, and how much parenting time each spouse is going to get. Those things all contribute to how long a divorce will take as well as how much it will cost.

    In a typical divorce, there are several different pieces including negotiations, mediations, and during the discovery process there may be depositions and preparations for a trial. If you go through that entire process, it’s obviously a lot more expensive than if you’re able to settle the case earlier on in that process.

    So, one of the things that you’ll want to look at is the model that the attorney sets up. A lot of attorneys just bill for these types of cases on an hourly basis. While we do bill many of our cases on an hourly basis, we also have a flat rate model so people know they can do certain pieces of the case for a set amount of money, and that’s something that people may have more confidence in.

    WHAT CAN I DO TO REDUCE THE COST OF MY DIVORCE?
    People often wonder if there’s something that they can do to reduce the costs of a divorce. And the truth is, there absolutely is.

    If people come here with all of their paperwork in order, make fewer phone calls and communications via email over and over again to the attorney, it will cost less money when billing at an hourly rate.

    With all documents gathered together, we can sit down with them and lay out the process, which will take a lot less time and, therefore, cost them a lot less than someone we have to continually reach out to and say, “we need this, that and the other.” Being prepared can certainly save you a lot of money.

    One of the other questions that people have is what is a retainer and how does that work. A retainer is simply an amount of money that’s placed in a trust and that account is billed against as we go through and work on a case each month. Invoices are sent out and the money that’s in trust is swept into that account and pays for the invoices. People will need to continue to have money set aside in trust to be able to have work done on their case.

    IF I DON”T WORK, WILL MY SPOUSE BE RESPONSIBLE FOR ATTORNEY FEES?
    Some people wonder if their spouse will have to pay for their attorney fees if they don’t work. The answer is, there are times when the court can order someone to pay the other spouse’s attorney fees. You can file a motion for temporary orders and request that the court order an allocation of money be given to that person in order for them to pay for their attorney fees. There are specific parameters that govern that.

    Typically, most people are going to have to pay for their own attorney fees going through litigation, and then even at the end of litigation, unless there are significant issues in the case where people are doing things intentionally to drive up costs, or intentionally being unreasonable. It’s a judge-specific issue, but we typically ask that the other side pay for attorney fees. Sometimes the court will allow it and sometimes they won’t.
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  • PERSONAL INJURY - Gaps in Treatment, PIP, UIM & UM Coverages

    If You’re Injured in a Car Accident, Don’t Do This!
    If you’ve been involved in a car accident, one of the things you need to do is get medical treatment. The goal in an auto accident case is to get you better, and to get back to a place where you were as if the accident hadn’t happened.

    Now, in reality is that going to happen?  Likely not. You’re never going to be perfectly back to the position you were in prior to the accident.  But, the goal when it comes to the law is to get you back to the place where you were, or as close to that place as possible.

    Often, one of the things people do that hurts their case and also hurts their wellbeing and their overall health is taking too much time before going to a doctor.  That’s a real problem in the case, and that’s a real problem for their health.  Something you need to do is get competent medical advice, make sure you’re following that advice, and get all of the treatment that you actually need in order to get better and healthy so you’re recovery doesn’t take as long.  Overall, that will also help your case.

    What Is PIP?  What Is the Utah State Minimum Coverage?
    When folks are involved in an auto accident, often there is some confusion as to how their medical bills are going to be paid.  There are a couple of different provisions in insurance coverage that takes care of some of the medical payments, although usually not all of them.

    The first one is personal injury protection, often called PIP, which is required coverage in the state of Utah.  It’s a no-fault provision that, regardless of who caused the accident, will kick in and cover the medical bills up to a certain amount, usually a low threshold like $3,000 or $5,000 or up to $10,000 depending on what you select and what your insurance coverage allows.

    The other coverage you would want to look at is whether your insurance has a medical pay provision, or if the other person’s insurance has it.  A medical pay provision can pay for additional medical bills prior to a settlement or anything done on the bodily injury side of things before the entire case is resolved.

    What Is UIM?  What Is UM?
    If you’ve been injured in an auto accident, one concern is how you’ll get full coverage for your injuries. Often times, in Utah, the amount of damage surpasses what the underlying coverage amount is for the person who hit you. If that person’s insurance, for example, is the low threshold in Utah, the minimum requirement is $25,000.  Many times, someone’s injuries are going to surpass that limit.  If that’s the case, you have two options.  You can accept that limit and then you would be barred from continuing to go after the person who hit you.  Or, you could go after that person individually and try to get some amount in excess of what their policy limit allows.

    If you accept the limits offer from the other insurance, usually people have what’s called underinsured motorist coverage.  That would allow you to pursue your own insurance company’s policy and receive coverage above and beyond what the torfeasor’s policy would cover.

    If somebody hits you who doesn’t have insurance, you can receive coverage if you have uninsured motorist provision on your own insurance policy.  This is a place where people can have better coverage than they realize. People ought to be looking to have higher underinsured and uninsured motorist coverage.  The insurance doesn’t cost that much money, and it’s great to have in the event that you’re hit by someone who doesn’t have a lot of insurance. 
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  • ESTATE PLANNING - Trusts & Wills, Power of Attorney, Probate Issues

    Trusts & Wills
    After someone passes away, their estate has to be probated.  Or, if that person has a trust in place, the trust can operate as an instruction manual for the people who are left behind to then operate and carry out the wishes of the person who passed away.  

    If you have a will in place, then the will goes through the process, called probate, a judge goes through and makes sure that the will is valid and allows the will to work as the instruction manual to determine where all the assets and the different things are distributed to the different heirs.

    They are two different mechanisms to do essentially similar things by taking all of an estate and dividing it up amongst the heirs or beneficiaries, whoever is designated in either that trust or that will.

    What Is a Power of Attorney?
    A power of attorney is typically used in estate planning production. Unlike most other estate planning documents that deal with things that are happening after someone dies, a power of attorney is an instrument that is used while someone is alive but not able to handle their own responsibilities.

    It could be a situation where someone is traveling outside of the United States or an area where they’re able to communicate effectively and they need to have someone to sign documents for them.  A power of attorney could provide the ability for that person to do that type of task.

    It could also be a situation where someone is incapacitated, without the mental ability to sign a document. A power of attorney could allow a person to sign or execute documents on their behalf.  A power of attorney can be very broad in its scope, or it can also be very narrow depending on the need.

    Be Cautious When It Comes to Probate
    We’ve had a few different cases that have involved probate issues where individuals have either tried to draft something themselves, or they’ve taken a form that they’ve found on the internet and have tried to fill it out.   When they have not done everything that they should have done, the children, or heirs, have ended up litigating over those things.

    Unfortunately, those types of cases can drag on and become incredibly expensive.  The people were initially just trying to save a few hundred dollars or up to a couple thousand dollars if they were doing some sort of irrevocable trust.  By doing it themselves they end up costing their heirs tens of thousands of dollars in litigation costs.

    Probate is one of those areas where an ounce of prevention is absolutely worth a pound of cure.  If you can do things proactively on the front end and do them right, you’ll prevent a lot of expense and heartache on the back end.
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  • PERSONAL INJURY - Negligence, Injured at Work, Wrongful Death

    Personal Injury – How to Establish Negligence
    In almost every law school in the country, every first year law student has to take a course called “Torts”.  Within that class, often half of the class is devoted to the subject of negligence. Negligence comprises claims such as wrongful death, slip and falls and car accidents.  Those types of claims happen from someone else’s negligence, not from an intentional act. Negligence is composed of four pieces: a duty, a breach of that duty, causation and damages.  You have to have all four pieces for there to be a valid negligence claim.
    I Was Injured on the Job.  Do I Have a Personal Injury Case?
    A question we get from time to time from clients is, if they were injured in an accident at work, if they have a personal injury claim.  There are two different aspects to these types of cases. On one side, there is the one action rule. Which means that if you’re injured on the job you’re not able to do that except through workers’ compensation.  Workers’ compensation guarantees, no matter who was at fault, you are going to get paid under a specific structure. You are not able to pursue the employer. The other side is that there can be a personal injury action even if you’re injured at work.  If the injury is caused by someone other than one of your employers or employees of that company, then you may have a third party claim which can be run like any other personal injury case.
    Wrongful Death – Can I Bring a Lawsuit Against the Negligent Party?
    If you have a loved one who has passed away as a result of someone else’s negligence, this is called a wrongful death claim.  We handle a lot of these. The claim is brought on behalf of the estate of that person who passed away and it’s also brought on behalf of the individuals who are left behind – parents, siblings, children or others.  These people also may have claims that derive from wrongful death statute in Utah and allow them to receive compensation for the lack of enjoyment they would have had if their loved one had not passed away. Not to mention all of the compensation the decedent would have been entitled to if not for the injuries: their life expectancy, future damages and all of those things that comprise a wrongful death claim.
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  • FAMILY LAW - Taxes, Divorce Decrees & Retirement Accounts

    Taxes on Alimony and Child Support
    In one of our case mediations, a question came up whether the spouse who is receiving child support and alimony will have to pay taxes on that money. As of 2019, alimony is no longer taxable to the person receiving it in the state of Utah. The person paying alimony pays as a post-tax payment on that and also pays the tax on child support. It’s important for those receiving and paying to understand the tax implications.
    Spouse Refuses to Sign a Final Divorce Decree
    Here are a couple of things to consider: First, if the parties settle the case through a stipulation and one spouse will not sign the divorce decree, the other spouse can file a motion to enforce the settlement agreement. The court can then enforce that settlement agreement and finalize the divorce. Second, if there isn’t a stipulation or settlement, you can still push the case through to a trial. If one spouse refuses to respond, unfortunately, it does become more difficult and time consuming to resolve until a divorce decree is in place.
    Splitting Retirement Accounts in Divorce
    An issue that comes up from time to time is whether a spouse will receive a fair share of their spouse’s retirement account in a divorce. This is one of the subtlest pieces of law in Utah. Basically, you split the amount that has accrued during the course of the marriage. This is done through a qualified domestic relations order, or QUADRO, as it’s often referred to, which takes the one account and splits it into two different accounts. This way, there are no immediate tax implications, and both spouses will keep them as their own retirement accounts continuing forward.
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