Commingled Property

In Utah, divorce courts presume that all property is marital, unless one of the parties prove that the property is separate property, or the property of neither the Plaintiff nor the Defendant. You should always talk to a divorce lawyer before you move forward with a divorce.

Commingled Property

In the Deitz case, Husband was living with his mother and brother during the divorce.  At trial, Wife introduced an exhibit which was a list of cars, trailers, parts and tools that she asked to have classified as marital property and sold at auction.  Wife testified that she hoped to have the proceeds of the auction applied to Husband’s child support arrearages.  At trial, the Wife, the Husband, and Husband’s mother all testified regarding specific items of property that Wife asked to be classified as marital property.

The Commissioner’s decision ordered that most of the property listed on the exhibit were presumed to be marital property because husband had failed to properly trace the items as his separate property.  The Commissioner’s decision ordered the items to be sold at auction.  The Judge adopted the Commissioner’s decision the same day.

Divorce Lawyer in Utah

The Husband objected to the Commissioner’s decision stating that “some of the property listed appears to be the property of third parties.”  Shortly afterwards, the husband’s brother and mother filed motions for joinder.  The court denied the motions for joinder saying they were “too little, too late”.

Under the Utah Rules of Civil Procedure, you are allowed to claim an interest in property out of which a party seeks a division of marital property, a distributive award, or an award of spousal support to be made a party defendant to the case, at the discretion of the trial court.   The trial court has to believe that the person’s interest in property needs to be protected within the divorce action.

Likewise, the rules allow the Plaintiff or Defendant (a party) to a divorce case to join a person as a party to a case, even against their will, if it is necessary for the court to protect property from which the Plaintiff or Defendant are seeking a division of marital property, a distributive award, or an award of spousal support.  This can be very important when one of the parties is trying to hide assets outside of the court’s reach.

The court of appeals stated that the term “interest” as used in the code and rules usually means lien or ownership, legal or equitable.  The court said that the parties seeking to join in the divorce bore the burden of sufficiently detailing their respective property interests and the basis for their claim of ownership.  Because they had not done so, the Court of Appeals concluded that the trial court did not abuse its discretion by denying their motions to be joined as a party.

What is to be learned here is that if you have property that is joined, shared or collective in any way with the property of a couple who is being divorced, it is up to you to make sure your property is protected, early on, and with specificity.

Business partners often assume that their interests are protected, however, in reality, they are relying on their friend, partner or family member to do adequate tracing at a time when they are financially and emotionally stressed.  It may be advantageous to be asked to be joined to the case yourself if you have proof to present that the property is not marital property.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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Utah Family Lawyer on Moving

In situations where court ordered parenting time has been established, and the residential parent wants to move, pursuant to Utah law, the other parent is entitled to notice of the move and, if requested or ordered by the court, a hearing.  These notice provisions apply REGARDLESS of whether the non-residential or non-moving parent contests the move. As a relocation lawyer, I’ve seen parents make mistakes in doing this before, which can require a big problem for them.

Utah Family Lawyer on Moving

A parent has a fundamental right to live where he or she wants to live, BUT they do not have a fundamental right to permanently relocate the child in violation of the Utah Revised Code or the parties’ court order.

Depending on the language of your court order and/or the language in the Local Rules of the court who issued the order, simply moving a certain distance away MAY automatically trigger a change in custody, shared parenting, school placement parent, parenting time or other provisions of  your parenting order.

Utah law, case law and the code  requires a court to consider whether either parent has established a residence, or is planning to establish a residence, outside this state when determining the best interest of the child.

In addition, pursuant to Utah law when determining whether shared parenting is still in the best interest of the child the court must consider,

  • The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;

Utah laws requires a court to consider

  • The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person’s residence and the distance between that person’s residence and the child’s residence;
  • Whether either parent has established a residence or is planning to establish a residence outside this state;

Sometimes parents want to move for legitimate reasons, and sometimes they want to move to thwart the other parent’s access to the child.  Regardless of the reason for the move, if the move creates additional distance between the child and the other parent, the move IS going to have an impact on the parenting time of the non-moving parent.  The question is, how much of an impact, and does the non-moving parent object?

If the non-moving parent believes that the impact upon their parenting time and relationship with the child is significant, he or she may wish to modify custody, shared parenting, or the school placement parent in a shared parenting plan.  At a minimum, the parties will need to consider whether a new parenting time schedule is appropriate.

Can you sue for a broken heart?

Did you have a change of heart and leave your fiancé at the altar? If so, be glad that you are in Utah where “heart balm actions” have been abolished.  Many years ago there was the Heart Balm Statute, which says that no person shall be liable for civil damages in the following types of cases:

  • breach of a promise to marry
  • alienation of affections
  • criminal conversation

Later cases have generally found that the following types of actions are also abolished under the statute, at least when it relates to civil damages for a failed relationship or a person wronged in a relationship:

  • enticement
  • intentional infliction of emotional distress
  • fraud
  • negligence

Although some states will still allow heart balm actions, Utah does not.  You cannot sue the person who stole your spouse away from you for money damages, and you cannot sue your spouse for money damages in a civil case for cheating on you.  Generally, you cannot successfully sue your fiancé for leaving you at the altar, even if you had already spent a lot of money on the wedding.

Be sure to also take a look at our article about returning the wedding ring after a broken engagement in Utah.

There is no broken heart law in Utah.

Free Consultation with Family Lawyer in Utah

If you have a question about divorce law or if you need to relocate to another state, call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Utah Father’s Rights Attorney

In Utah, does a father have a right to get visitation, even if paternity has not yet been established? Does the law regarding an Utah Father’s Rights include the right for the father to request temporary orders regarding visitation or custody, even if paternity has not yet been established?

Utah Father's Rights Attorney

The answer is YES.  Since the husband is presumed to be the biological father when a child is born to a couple who is married, this issue applies to Utah Father’s Rights situations where the mother and father of a child were never married.  Temporary Custody Order While Action is Pending allows the following regarding an Utah Father’s Rights to visitation and/or custody while a court case is pending, or temporary orders:

In any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a childwhen requested in the complaint, answer, or counterclaim, or by motion served with the pleading, upon satisfactory proof by affidavit duly filed with the clerk of the court, the court, without oral hearing and for good cause shownmay make a temporary order regarding the allocation of parental rights and responsibilities for the care of the child while the action is pending.

If a parent and child relationship has not already been established pursuant to section 3111.02 of the Revised Code, the court may take into consideration when determining whether to award parenting time, visitation rights, or temporary custody to a putative father that the putative father is named on the birth record of the child, the child has the putative father’s surname, or a clear pattern of a parent and child relationship between the child and the putative father exists.

There are several things about that statute that you want to read carefully.  Every word matters.  Here is some additional information about important phrases from the statute:



  • First, this means a COURT  It does NOT apply to an administrative proceeding for child support through the ORS.  The ORS has no authority to order visitation.  Sometimes, during an administrative child support proceeding, if the parties agree, the ORS attorney or liason will give the parties a form to seek court ordered visitation, but that form is still submitted to the COURT, and is not ordered by the ORS.
  • Second, notice the phrase “parentalrights and responsibilities”.  This means that if a Father files a motion in an actions which was only filed as a grandparent visitation proceeding, the court may find that it has no authority to make temporary orders for visitation for the Father.  The Father may file a motion to be made a party to the grandparent visitation proceeding, but unless he files a Complaint for the Allocation of Parental Rights and Responsibilities (and, if applicable, for establishment of paternity), the court may find that the action is not a “proceeding pertaining to the allocation of parental rights and responsibilities), and therefore deny the Father’s request for Temporary Visitation.  (The Mother would, at that point, still have full custody of the child pursuant to Utah law and would not need temporary orders for visitation.)
  • Temporary Orders are available during the INITIAL proceeding, not in post-decree proceedings.
  • Temporary Orders of visitation are not available in a court proceeding which is merely an objection to an administrative child support order.  The court proceeding has to include a complaint, answer or counterclaim for parental rights and responsibilities.


To establish an Utah Father’s Rights to temporary visitation or custody, the Father, or his Utah Father’s Rights Attorney, should request temporary orders pursuant to the Utah Rules of Civil Procedure in his Complaint, or his Answer to the Mother’s Complaint, if the Mother filed the Complaint.  In the alternative, the Father can seek his Utah Father’s Rights by filing a motion.  It is unclear from the statute whether his Motion must be served with his Complaint, Answer or Counterclaim, but it is the better practice to file the Motion at the outset of the case.  In addition, sometimes a request tucked at the end of a Complaint Answer or Counterclaim escapes the notice of the court at the initial hearing, but a Motion which is pending on the Court’s Docket is more likely to be noticed and addressed at the first hearing.

Something that is important to note is that if child support is not yet established, but paternity is established (perhaps through an Affidavit signed at the child’s birth which allows the Father’s name to be on the child’s birth certificate), Utah judges and magistrates almost always establish a temporary order of child support.  If the father, or his attorney, has not already filed a Motion for Temporary Orders or requested temporary orders in his complaint, this would be a great time to point out that Utah law allows the following:

Whenever a court issues a child support order, it shall include in the order specific provisions for regular, holiday, vacation, parenting time, and special visitation in accordance with the sections of the Utah Code or in accordance with any other applicable section of Utah law.

Free Consultation with a Utah Father’s Rights Lawyer

If you have a question about child custody question or if you need to protect or enforce your rights, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Business Lawyers in Utah for Gold and Silver

“Shafting” the IRS is the verbiage used in the article in Forbes, not ours, though who hasn’t dreamed of evading, er, we mean finding loopholes in taxes at least once in their lives? Well, now the secret is out, thanks to writer Brian Domitrovic, who may be onto something. Obligatory disclosure: he’s not a tax lawyer. Interestingly, he cites a 2011 law that was passed in Utah “banning taxes on the use of gold and silver coins as currency and permitting residents to remit taxes in these coins.” Apparently Oklahoma recently did something similar. But before business lawyers in Utah as well as entrepreneurs and wealth management specialists across the Beehive State dismiss this small bit of legislation as trivial, Domitrovic points out that transacting in gold can save you tons on taxes.

Business Lawyers in Utah for Gold and Silver

Maybe not literally tons, and almost certainly not tons of gold, whose current market value is something like $1,267 per ounce. So here’s the first thing: gold’s official Treasury price is $42.22 per ounce, meaning that some savvy individuals or companies who leverage the legal know-how of their business lawyers in Utah could be saving hundreds of thousands of dollars on taxes each year if they worked in gold. So, Business lawyers in Utah may be called on in greater demand for transacting in gold because it can shaft the IRS.

But hold on a minute, some of you astute readers of legal news might say. What about the “federal law” that requires you to “declare as taxable the gain on any market appreciation of the gold you use to make purchases”? Well, that’s the other thing: it’s a “federal law” in quotation marks. It’s not a real law. It’s what Dimitrovic calls “administrative law,” which is basically an idea that the Internal Review Service came up with and tossed back and forth in a series of emails (8,000 pages worth, as discovered under the Freedom of Information Act) and said “okay, we’re doing this requirement of market appreciation on gold thing.” How enforceable is administrative law? You’d have to ask your business lawyers in Utah: legal counsel isn’t superseded by Dimitrovic’s blog-based advice.

Just think about it, though: if enough people get together and decide to make transactions in gold, “somebody might clear, for example, $3,000 in gold income a year, or $90,000 if translated into paper dollars.” And given Utah’s 2011 statute, even the most experienced business lawyers in Utah would be hard pressed to disagree that everything with that plan seems above board. And when you’re only paying taxes on $3,000, why wouldn’t you get on board with this idea?

Part of the problem is finding enough people to get together to decide to make the transactions in gold. If the gold movement does get traction though, “it could have the effect of requiring business in this country to cut their taxation costs by arbitraging the gold-note dollar spread that the United States has allowed to emerge over the past century of serious inflation.” Gold has the potential, like Bitcoin to stick it to the man (i.e. the IRS), with the added bonus of being constitutionally protected since 1787 and time tested through copious amounts of litigation in the 19th century. Pony, up, people; together we can “shaft the IRS.”

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Financial Misconduct in Utah Divorce Cases

What is financial misconduct?  In Utah, it is a basis upon which an Utah divorce court can make a distributive award.  

Financial Misconduct in Utah Divorce Cases

Consider this:

If a spouse has engaged in financial misconduct, including, but not limited to, the dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets, the court may compensate the offended spouse with a distributive award or with a greater award of marital property.

So what does this mean in plain English?  It means if you are getting divorced and your spouse is destroying, ruining, hiding, or getting rid of assets in a sneaky way, the court can give you some of their separate property to punish them.  When a court does this, it is called a distributive award. 

So what is separate property?

(a) “Separate property” means all real and personal property and any interest in real or personal property that is found by the court to be any of the following:

(i) An inheritance by one spouse by bequest, devise, or descent during the course of the marriage;

(ii) Any real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage;

(iii) Passive income and appreciation acquired from separate property by one spouse during the marriage;

(iv) Any real or personal property or interest in real or personal property acquired by one spouse after a decree of legal separation issued under section 3105.17 of the Revised Code;

(v) Any real or personal property or interest in real or personal property that is excluded by a valid antenuptial agreement;

(vi) Compensation to a spouse for the spouse’s personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets;

(vii) Any gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse.

So what does this all mean?  It means if your spouse has separate property, and they are playing games with the marital property, the court can remedy this by giving you some of their separate property.

Retroactive Arrearage Modification Not Prohibited

The Supreme Court has decided that parties to a support order may modify child support by agreement.  In Byrd v. Knuckles the Supreme Court held that nothing prohibits a juvenile court from adjusting an existing arrearage in child support if the parties agree to do so.

In this case, as part of an agreement to consent to a step-parent adoption, the Mother agreed that the Father’s child support arrearage would be reduced by 50%.  After the adoption was completed, the Father attempted to have his child support arrearage reduced pursuant to this agreement, and the Court found that it had no authority to reduce this arrearage under the Law.  This matter was appealed, and then brought before Supreme Court.

The Supreme Court noted that this decision does not mean that a court MUST accept a parties’ agreement to reduce a prior arrearage, but that a court is not prohibited from doing so pursuant to the Law.  As in this case, this issue is particularly relevant where one party is willing to sign away their legal rights in order to be released from future, and possibly past child support obligations.

Free Consultation with a Utah Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Child Sexual Abuse Investigation

In rape and sexual abuse of child investigations, the detective will usually call the suspect to get her “side of the story.”  After charges are filed, a defendant calls to ask me if the interview can be thrown out because the officer did not read her Miranda warnings. This is important for you to think about because as a child sexual abuse defense lawyer, you want to do everything you can to protect yourself before, during, and after the investigation phase.

Child Sexual Abuse Investigation

Most people, because of crime shows, are very familiar with the Miranda warnings.  But most do not realize that an officer does not have to read a suspect her Miranda warnings unless she is in custody.  So, if the officer is questioning the suspect at her home, it is not likely that the officer needs to give any Miranda warnings.

If you are being questioned and are unsure if you are in custody or not, ask the officer if you are “free to leave.” If you are questioned without being Mirandized, but you were not in police custody, your interview is still admissible at trial.

If a suspect is in the back of a police car or at the police station, she is in custody fo purposes of Miranda and the warnings must be given before an interrogation begins.  If the officer fails to issue Miranda warnings, the interview will likely be tossed at a motion to suppress hearing, meaning the prosecutor cannot use the interview at trial.

If, however, the defendant testifies at her trial and she says something different than she said in the police interview, the prosecutor will be allowed to use the interview to impeach her.  By talking to police, a suspect is potentially compromising her case.  Don’t talk to the police.  The police are not your friend, even if they are acting like they are.  The prosecutor won’t deal with your case more leniently if you talk, even though the police will tell you this.  You can always talk later –with the assistance of an attorney– if there is something you’d like the prosecutor to know.

If you are ever contacted by a detective for an interview, ask for a lawyer.  The police have to stop questioning you until a lawyer is provided to you.  Don’t compromise your rape or sexual abuse of a child case because of something you say.

Rape And Child Sex Cases At The Investigation Phase In Utah

Being investigated for rape or sexual abuse of a child?  Too many make the mistake of waiting to hiring a lawyer.  This is the most critical portion of the case sometimes.  Police officers often tell suspects they don’t need a lawyer and that telling their side of the story will curry favor with the prosecutor.

Nothing could be further from the truth.  Giving a statement to the police locks you into a specific defense if they case goes to trial.  You provide the prosecutor ammunition on cross-examination if you have spoken before.  If your testimony varies at all from your interview with the police, the prosecutor will impeach you with the prior interview and tell the jurors that you are lying.  And, the inconsistencies don’t have to be on major points.  Something that you may think is insignificant may become significant at trial.  Make sure that you ask for an attorney before giving an interview.  You have a right to remain silent and the prosecutor cannot use that silence against you, such as “John Doe must be guilty because he refused to tell us his side of the story.”  That is improper.

Once a rape or child investigation is completed, a warrant will go out and you could be picked up. A rape or sexual abuse of a child case is a high priority case for law enforcement and officers are going to focus on picking up these individuals once charges are filed.

If you have an attorney, most times the detective will work with your attorney to do a surrender.  Before going into court, the “wheels are greased” and a release or bail reduction is already worked out.  Remember, it’s easier to stay out of jail than to get out of jail.

Don’t make the mistake of waiting to call an attorney after the prosecutor decides to file charges.  Hire a competent lawyer to help you through the process.

Free Consultation with Child Sexual Abuse Defense Lawyer

When the police are coming after you for child sexual abuse or rape crimes, call us for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Change of Circumstances and Grandparent Custody

The concept of “change of circumstances” is an important on in the context of child custody, but it’s complicated concept in family law.  When a person wants to change the court’s custody orders, there has to be a change in circumstances.

The first important question is “Whose circumstances have to have changed?”  The answer to that depends on whether the order is a shared parenting decree (two residential parents), joint custody (one parent and one non-parent) or whether a person (or persons) have legal custody (aka residential parent or sole custody).  In a nutshell, the question is “Shared Parenting, Joint Custody or Sole Custody?”

Change of Circumstances and Grandparent Custody

When a person has sole custody of a child (aka “legal custody” or sole residential parent), then the change of circumstances must be a change in the circumstances of the child or legal custodian.  It does not matter if the parent who has visitation only, (or has no visitation but simply retains his or her residual parental rights) has changed his or her circumstances, even if his or her circumstances have changed substantially.

In Alexander v. Alexander, the court of appeals for found that the trial court did not abuse it’s discretion when it overruled the Mother’s Motion to Change Allocation of Parental Rights and Responsibilities regarding her three children.  The children were in the custody of their paternal grandmother as a result of the agreement of the Mother and Father during their divorce.  The Mother had visitation (parenting time).

During the trial on the Mother’s Motion to Reallocate, Mother testified that she had been working for some time to make a more stable home for the children.  Among other things, Mother testified that she was employed and had lived in her apartment for a year and a half.  The trial court found that the change of circumstances must have occurred “in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree“.  In this case, the changes were in the Mother’s circumstances.  In addition, the trial court found that the children have become more stable in the grandparents’ home, and so the “harm of a change in environment for the children outweighs any advantages that may have now arisen to justify a change.”

Even if there HAS been a change in circumstances of the RIGHT person, the court should not change custody unless the change is in the child’s best interest AND one of the following is true:

(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.

(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.

(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506