Kielkowski v. Kielkowski and the Who’s Your Daddy Question
The Court of Appeals addressed an interesting paternity case recently.
The Court of Appeals addressed a very interesting case this year regarding the parentage law in Utah which states that a child born to a woman who is married is presumed to be the child of the woman’s husband. So…if a woman gets pregnant with the child of man other than her husband, while married, the child in the eyes of the law is the child of the husband, unless the father takes legal means to establish that he is the child’s father. The presumption of paternity can be rebutted, but Utah law sets forth specific ways how that can be done.
In Kielkowski, the wife had the child of another man. From the time the child was born to when he was about two years old wife’s husband had a relationship with the child. When the child was about two the parties divorced. Father filed the divorce papers stating that there were no children at issue in the marriage, thereby bypassing the paternity issue. Mother did not respond to the divorce filing so the decree was entered upon the Father’s petition. After the divorce Mother allowed Father visitation with the child and Father paid child support but after about six months Mother started an adoption proceeding to allow the child’s biological father to adopt the child. She then started denying Father access to the child.
Shortly thereafter Father filed a petition to modify the divorce decree to address the issues of child custody and child support. The trial court denied Father’s petition on the grounds that it was undisputed he was not the father of the child and signed divorce documents stating the parties had no children together.
Paternity Must Be Decided Under the Parentage Act
The Utah Court of Appeals found that the district court erred because under Utah law Father is presumed the Father and nothing was presented in the divorce case to rebut that presumption. The fact that Father stated there were no children at issue in the marriage does not overcome that presumption because Utah law requires a legal parentage action to rebut the presumption of fatherhood. Since the parties never raised the issue of parentage, the court should have addressed that issue in the modification proceeding.
A trend nationally seems to be taking place. We have certainly noticed it in the past couple years at our law office. More older couples, those 50 and older, are seeking divorces these days. In fact, we stumbled across a recent article describing this trend. Older couples often face unique challenges when it comes to divorce. Most of these couples no longer have minor children in the home, so there are no custody battles to get through. Heaven knows a custody battle can usually be the biggest fight in a divorce and cause a divorce to drag out for months or even years. Older couples thankfully, for the most part, don’t have to worry about all the issues that come along with kids. However, there is usually more at stake financially for older couples because they are either already in retirement or nearing retirement.
Divorcing after 50 can mean a whole host of issues which younger individuals may not face, at least not to the same degree. For instance, when your past 50 you may have already accrued the bulk of your retirement or all of your retirement. If your retirement is cut in half and you are unable to sustain yourself, you might be less capable of recovering financially or in some cases you might not be capable of going back to work at all due to disability or old age. Additionally, if you are a spouse who didn’t work much during the marriage and relied on the other partner for the financial support in the marriage, it may prove difficult to enter the job market at an older age with little prior experience. For these, and many other reasons, older couples often choose to continue living together in the marriage simply out of economic necessity. Others simply can’t make that work or don’t want to and choose to divorce.
Other issues unique to older couples divorcing may include a long term business, social security, health insurance, and even end of life care. If you are over 50 years old and considering divorce, call our law firm anytime to find out more information on what issues you may be facing. An Ogden Divorce Attorney at our office is ready and willing to answer your questions.
The New York Times wrote an article recently about retirement and divorce, stating that a later in life divorce can cause serious havoc for individuals retirement plans. Hopefully the more you think about this statement the more intuitive it becomes because it illustrates a very simple divorce concept that is often overlooked. That concept is that a divorce takes what was once one team/group/household, and splits it into two teams/groups/households; and obviously that means that things are going to be much more financially tight for those new entities. Where this problem most often comes up is in regards to alimony. Divorcing individuals don’t logically think through the fact that their joint income is now going to be split in two and that income that once carried one home, one retirement, one set of dishes, etc… now has to pay for two of each of those things and that means that both parties will have to cut back regardless of how vindictive they want to be or how great their attorney is.
Divorcing Later in Life
According to the New York Times article “The divorce rate in the United States among people 50 or older has doubled since 1990,” and with that rise in divorce numbers it has become very apparent that divorcing couples who are approaching retirement can’t only think about divorce but they must now think retirement and divorce. The concept above of realizing that divorce will take a serious toll on the parties standard of living is especially important when considering retirement and divorce. For aging individuals not only are they going to be short on money due to the split but if they are divorcing later in life then they are also short on time meaning they are not going to be able to recoup the losses that the divorce has cause on their retirement accounts.
Legal Counsel to Guide You
Retirement and divorce go hand in hand and most family law attorneys will tell you that retirement is one of the biggest issues of contested divorces because there is a lot of money on the table. If you are considering a possible divorce then call the attorney’s at Ogden Divorce Law right away to make sure you understand all the aspects of your situation before you make a decision about what you want to do going forward.
Summer is almost here, hopefully you have already been thinking about your summer parent time and have been communicating with your ex spouse regarding this issue. If not, don’t wait any longer. If you have been awarded summer parent time as part of a divorce or custody decree, you should already have your specific days and times all set out and planned. The standard parent time statute (Utah Code Ann. 30-3-35) involving children 5 years old and over currently states this about summer parent time:
“(k) Extended parent-time with the noncustodial parent may be:
(i) up to four consecutive weeks when school is not in session at the option of the noncustodial parent, including weekends normally exercised by the noncustodial parent, but not holidays;
(ii) two weeks shall be uninterrupted time for the noncustodial parent; and
(iii) the remaining two weeks shall be subject to parent-time for the custodial parent for weekday parent-time but not weekends, except for a holiday to be exercised by the other parent.
(l) The custodial parent shall have an identical two-week period of uninterrupted time when school is not in session for purposes of vacation.
(m) Both parents shall provide notification of extended parent-time or vacation weeks with the child at least 30 days prior to the end of the child’s school year to the other parent and if notification is not provided timely the complying parent may determine the schedule for extended parent-time for the noncomplying parent.”
Most importantly you should have noticed reading through the cited statute above the requirement for each parent to provide the other with 30 days notice of their intended summer parent time. Many parents fail to provide this kind of notice which then sets off a string of contention and potential litigation. We recommend sending notice in writing well in advance of the 30 days required. Both parents should be accommodating. Every now and again we see problems where both parents want the same 2 week stretch for a summer vacation. Try and work problems like this out before seeking legal counsel, but, if the other parent is just not willing to work with you, give us a call for help.
In Utah, mediation is required before a court will allow a divorcing couple to set a trial date. Due to this statutory requirement it is a good idea for individuals to prepare themselves for the possibility of mediation in their divorce and what they should expect. Along with mediation being required by law it is also usually a really good idea for divorcing parties because it helps people come to a settlement instead of wasting time and money to fight over things in court. That being said there are plenty of cases where the parties simply cannot come to an agreement; whether that be for justified reasons because the parties simply have different views of what is in the best interest of the child or because one of the parties simply won’t budge.
The Basics of Mediation
Mediation is a fairly simply process but if done correctly it can have very rewarding results. The parties are separated into different rooms and a trained mediator goes back and forth between the rooms attempting to facilitate negotiation. If the parties have attorneys then they can have their attorney in the room with them to help them understand their options and what the possible outcomes could be if they decide to go to trial instead of settling. If the parties come to an agreement then they will sign a stipulation and settlement agreement at the end of mediation that will ultimately be filed with the court. One of the important things to remember, however, about mediation is that the only thing that ultimately matters about the process is what is written in that stipulation and settlement agreement. The parties will discuss a bunch of different things and possible scenarios but in the end none of it is worth anything unless it is written down in the paperwork that is signed by both parties.
Northern Utah Divorce Attorney – Getting Help with Mediation
If you are thinking about divorce or are already involved in the process then call the attorneys at Ogden Divorce Law to get help with your case. We can help you prepare for and go through mediation and we can help you defend your rights in the process. Call or email us today to find out more.
One of the difficult things about protective orders is that after a party requests the protective order, a temporary protective order is normally immediately issued and if the party requesting the protective order is married to the named respondent or they are parents together then they can request that the minor children also be included in the protective order. So regardless of whether or not there are sufficient grounds for a protective order to be issued there could be a temporary order of custody in favor of the individual who filed for the protective order. Due to the unrestrained power of this system it is often abused and protective orders are filed just to get temporary custody of the minor children or to get one of the parties kicked out of the house.
Reasons to Stay Away from Protective Orders
Obviously there are some clear situations where protective orders are very vital and can protect individuals and even save lives. However, in every other situation there are some good reasons why you should stay away from protective orders, especially if you are going through a divorce process. One of the biggest reasons why you shouldn’t try and get a protective order if you really aren’t afraid of being physically injured by your spouse is because it delays the process of your divorce and it makes people more vindictive and makes settlement negotiations more difficult.
Ogden Family Law Attorney | Getting Your Protective Order Questions Answered
If you are considering divorce or a protective order or both then you should talk to an attorney first. Call us at Ogden Divorce Law for answers to your divorce and protective order questions, we can help you make an informed decision about your situation.
20 years ago the Utah legislature passed an innovative and unique law for the time. The new law required that individuals with kids who were going through a divorce had to take a two-hour divorce education class. The class focuses on how to keep your kids out of the divorce proceedings and tips on how to help your kids deal with the difficulties put on them by having their parents divorcing. While that was a unique law 20 years ago it has now become commonplace today and many states have similar laws on the books.
The Utah Legislature is at it Again
Now with 20 years of divorce education classes under it’s belt Utah is now looking to add another class to the mix. The Utah legislature is currently contemplating passing a bill that would require individuals to take a class before they could file for divorce. The idea behind the bill is that it will illustrate some of the pros and cons of divorce and hopefully help some individuals realize they don’t want to get divorced. Apparently the state thinks they have an interest in reducing the divorce rate in Utah. That aside, the reality is that this bill could lengthen the already arduous and difficult process that is getting a divorce in the state of Utah and that alone has some people unhappy.
Ogden Divorce Attorney | Helping Answer Your Questions
If you are thinking about getting divorced and want to know the procedure or have any other questions then call Ogden Divorce Law today. Our experienced attorneys can help you understand the likely outcomes and let you know how we could help you along the way. Divorce is stressful enough so don’t do it alone and don’t leave the outcome up to chance, hire a knowledgeable Ogden divorce attorney who can help protect your rights and relieve your stress.
Under Utah law, parties can file for a temporary separation as opposed to a divorce. Temporary separation allows the parties to separate while still obtaining temporary orders to their benefit. Issues such as alimony, child support, custody, property division, debts, can all be entered as temporary orders controlling during the separation. Parties seeking this type of action should understand that separation orders are considered temporary only and eventually the parties will need to make a decision as to whether or not their temporary separation will be converted to a divorce or whether the parties will reconcile.
The Process of Obtaining Temporary Separation Orders
Even if you and your spouse agree on your separation terms, you should still seek the assistance of an Ogden Utah Divorce Lawyer. Unlike an uncontested divorce in Utah, there is not an easy online system for parties to obtain temporary separation orders in Utah. The action is commenced by the filing of a petition which must include a few specific statutory terms. The case must then proceed to a judge’s final order either by agreement of the parties or by contested litigation. The process may sounds simple but unless you have experience in this area, you may find yourself caught up not knowing how to get it done. The Utah Court’s website suggests clients hire attorneys to file this action.
Potential Effect of Temporary Separation Orders
One thing to consider before pursuing a temporary separation order is the effect of putting in place a status quo. Let me explain this in a little more detail. Say for instance you decide your spouse will have primary custody of the children and temporary possession of the marital home while you are separated. Things later go badly and the separation turns into a divorce but you decide you no longer like the current arrangements. You may have an uphill battle to change the prior agreed terms. This is because the status quo is an important principle for the judges to consider. If the children are well adjusted to a particular custody arrangement that has been in place for some time during separation, it might be unlikely the judge will want to upset that. Thus, before you do anything make sure you consult with a member of our team to understand all the potential side effects of your decisions.
One of the biggest issues in divorce is money and property and understandably so, as people split up they have to start thinking about how they are going to make it on their own. While everyone characterizes property division as a vindictive process of “taking every penny” or something along those lines, the reality is much different, both in purpose and outcome. While people may start out looking for revenge or to “stick it” to their ex, after a couple months of living on their own they realize their need for a stable income and their stuff.
What to Expect at Mediation
When it comes to mediation one of the scenarios that lends itself best to reaching a settlement is when the parties are only fighting over property and finances. That being said reaching a settlement is never easy and the parties should normally not expect to just be in and out at the mediation. The baseline for what a person should expect when going into mediation, in regards to property division, is that the marital estate will more or less be split in half and given 50% to each party. This doesn’t necessarily mean that everything must be sold but that is often an important option, especially when it comes to real estate.
Ogden Family Law Attorney | Getting Help for Mediation
If you are thinking about getting divorced or are already in the process of divorce and need to move toward mediation then call the lawyers at Ogden Divorce Law. Our attorneys have represented hundreds of clients in their divorce and mediation process and we can help calm your feels and protect your rights as you work towards a resolutions to your case. Call or email us today to find out more about how we can help you in your divorce.
The first thing potential lawyers learn when they get to law school is that practicing law is nothing like how it’s portrayed in movies and t.v. The classic movie scene of an attorney is being in trial before the judge and jury arguing for your client, and having some smoking gun evidence to bring in which surprises everyone and wins the case. In reality very few cases go to trial and that’s for a number of reasons, the two biggest reasons however are money and uncertainty. Going to trial involves a lot of trial preparation by your attorney and the more your attorney works on your case the more money you have to pay him or her. Going to trial also involves a lot of uncertainty, while your attorney can give you an idea of some possible outcomes he or she cannot tell you how the jury or judge is going to ultimately rule on your case and therefore you have to be prepared for almost anything.
Divorce and Trial
In divorces the trial process is the last step in the divorce and is only reached if the parties are unable to come to an agreement on their own. At trial the parties will make their arguments to the judge as well as provide evidence if they have any, as they try and convince the judge that they should receive what they are asking for from the divorce, such as child custody, alimony, or a certain property distribution. The standards that the judge will judge a case on in family law are very loose and there are few if any bright line rules. When it comes to child custody the judge will try and do what is in the best interest of the child and in regards to property distribution and alimony the judge will attempt to effectuate a fair and equitable distribution. Other than that the judge can really consider any arguments and make his or her decision based on close to anything and the that is why so few cases go to trial because parties would rather resolve case themselves instead of having the judge do it for them. However, there are cases where the parties simply cannot come to an agreement and when that happens that is what the trial process and the judge are there for.
Experience Family Law Trial Attorney
If you’re thinking about getting divorce then having an experienced trial attorney can be very helpful even if you don’t end up going to trial. Having been through the trial process an experienced attorney can better help you frame your decision making when dealing with settlement offers and mediation. If you have questions about your divorce call Ogden Divorce Law for help.