Divorce Education Classes

Every parent in a divorce must complete divorce educations classes. One of the primary focuses of the divorce education classes teaches parents how to better serve the interests of their children and co parent. The principles taught at these classes can be very helpful in working together as parents even through an otherwise nasty divorce. The classes are mandatory and are regularly held depending on the area you live in. Get into these classes early. This may change your perspective on certain issues and help you reach a settlement on difficult child matters.

Divorce Education for Children

The courts in Salt Lake City and Logan offer divorce education classes for children. These can be incredibly helpful for kids going through a divorce. Parents living in these areas should seriously consider this class as a means of helping their children through these difficult times. Another good consideration is counseling. Not every child needs to be involved in counseling as a part of a divorce situation; however, for many it is more than helpful.

Free Consultation Regarding Child Issues

Speak with a Utah Divorce Lawyer in our office today for free. We can advise you on working towards your child’s best interests and can provide resources to help you and your kids get through these difficult times. Call us anytime and get  a free consultation right over the phone.

Dissenting Opinion by Scalia

The four justices who dissented from the majority were Antonin Scalia (who many argue to be the most conservative of the members) and liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Scalia wrote the dissent arguing nothing would now stop law enforcement from requiring everyone cited or arrested for any reason to be compelled to provide a DNA sample and be entered into a national database, regardless of whether or not they were rightly or wrongly charged. Scalia argued in his dissent that the majority’s opinion was a radical expansion of the 4th amendment not supported by the text. The ACLU spoke out against the decision issuing a statement that the ruling flies in the face of the well held principle that any search requires individualized suspicion.

How Will Law Enforcement React?

It remains to be seen how law enforcement may react to the court’s new decision. Will local officers here in Utah start cheek swabbing for DNA for petty offenses and traffic citations? Will they show restraint only requiring DNA sampling in serious crimes? Will it ultimately lie somewhere in between? What we do know is that inevitably, individuals who are wrongly charged and never convicted will nonetheless have their DNA collected and stored in a searchable database. We will keep you posted as this new law develops.

Anyone who is charged with a crime in Utah has very specific constitutional rights that apply to each criminal defendant throughout the entire proceeding.  Those rights include:

1. You have the right to be represented by an attorney. The court will appoint an attorney at no cost to you if: a) you cannot afford an attorney; and b) there is the possibility of a jail sentence for the offense. Later, you may have to pay for the appointed attorney’s service if the court determines you are able to do so.
2. You have the right to represent yourself. If you do so, the court cannot advise you on how to handle your case, and you will be required to comply with technical legal rules. There may be disadvantages to proceeding without an attorney. For any future hearing, you must: a) represent yourself; b) hire an attorney; or c) if you cannot afford an attorney, request a court-appointed attorney by filing an affidavit at least 10 days before the proceeding. Failure to exercise option b or c will be treated as an implied waiver of your right to counsel.
3. You have the right to a speedy public trial before an impartial jury. If you want a jury trial, you must make a written demand at least 10 days prior to trial. You are not entitled to a jury trial if you are charged only with an infraction.
4. You have the right to confront and cross-examine the prosecution witnesses in open court.
5. You have the right to call witnesses and compel by subpoena their attendance and testimony. If you cannot afford to pay for the attendance of witnesses, the prosecution will pay those costs.
6. You have the right to testify on your behalf. Any statement you make may be used against you. You may refuse to testify, and no one can make you testify or give evidence against yourself. Your refusal to testify cannot be held against you.
7. You are presumed innocent until: a) you plead guilty or no contest; or b) the prosecution proves you guilty. The prosecution has the burden of proving each of the elements of the crime beyond a reasonable doubt. A jury verdict must be unanimous.
8. You have the right to bail. If you post bail, you will be released on: a) the condition you appear in court for future proceedings; and b) any other conditions the court imposes. Bail may be modified on proper motion, notice, and findings.

If you decide to enter into a plea agreement, you waive all of the rights listed above.  It is very important that you understand these rights before entering into any kind of plea arrangement in a Utah criminal case.  For more information concerning the rights you have if you are facing criminal charges, call our defense lawyers at 801.413.1753 for a free over the phone consultation.

Recently the Utah Court of Appeals issued a ruling in an appeal concerning a Utah civil stalking injunction.  The case is Roper v. Shovan, 2013 UT App 124.  In that case the court addressed whether the district court erred in issuing the injunction. An appellate court will overturn a district court’s decision in a civil stalking case only if there was “clear error” or the court has a firm conviction that a mistake was made.

In this case, Roper and Shovan were spouses going through a divorce proceeding and they also had children together. The wife alleged that husband acted in a confrontational and harassing manner when he picked up the kids on a couple of occasions at wife’s neighborhood and at the kids’ school.  Wife argued that these two incidents constituted a “course of conduct” as required by the statute and that such course of conduct placed her to fear for her safety and suffer emotional distress.  The district court agreed and found that husband’s showing up to pick up the kids and acting in a confrontational manner on those two occasions was enough to satisfy the statute and issued the stalking injunction.

On appeal, husband’s main contention was that the district court incorrectly considered how wife “felt” in ruling on the injunction.  The appellate court, however, found that the district court properly considered wife’s feelings because the statute requires that a “reasonable person” would suffer fear or emotional distress and so wife’s reaction to husband was considered in the reasonable person analysis.

Lessons from Roper

There are two lessons that one may take from this case.  First, the appellate court reaffirmed the relatively low burden of the statute.  A person bringing a civil stalking injunction need only show two or more instances when the respondent acted in a way that would cause the petition fear for his physical safety OR emotional distress.  Emotional distress is so arbitrary and capricious that a judge can technically make a finding of emotional distress based on any facts.

Second, it is extremely difficult to overturn a district court’s ruling on a civil stalking injunction, so you better win at the district court level.

Give us a call if you are involved in a stalking case and need legal representation.  801.413.1753.

Protective orders in Utah have historically been limited to spouses and cohabitants (people living together) or former spouses and former cohabitants.  Courts hand out protective orders like candy as it is and the Utah Legislature has just made it even easier to get a protective order and has all but guaranteed that Courts will be issuing even more protective orders.

Tomorrow the Utah Dating Violence Protection Act goes into effect and allows boyfriends and girlfriends to bring a request for protective order against each other.  It specifically provides that a protective order may be sought by a person who is substantially likely to be subjected to “abuse by a dating partner of the person or dating violence by a dating partner of the person.”  A “dating partner” is someone who is at least 18 years old and has been in a dating relationship with the person.  A “dating relationship” “does not mean a casual fraternization in a business, educational, or social context.”  In order to determine whether someone is a in a dating relationship the court will consider all relevant factors including the following:

• whether the parties developed interpersonal bonding above a mere casual fraternization;

• the length of the parties’ relationship;

• the nature and the frequency of the parties’ interactions, including communications indicating that the parties intended to begin a dating relationship;

• the ongoing expectations of the parties, individual or jointly, with respect to therelationship;

• whether, by statement or conduct, the parties demonstrated an affirmation of their relationship to others; and

• whether other reasons exist that support or detract from a finding that a dating relationship exists; and

If the petitioner shows by a preponderance of the evidence that the respondent committed abuse or dating violence against the petitioner then the court will issue a protective order which will last for 180 days.

If you are facing a Utah dating violence protective order or seek to bring one against your boyfriend/girlfriend/fiance give our lawyers a call at 801.413.1753 for a free over the phone consultation.

Under common law, for every crime committed there needed to be a victim.  That of course is no longer the case as there are a multitude of “victimless” crimes (e.g., possessing drugs, drinking alcohol under age, etc.)  For those crimes that legitimately have victims (e.g., murder, assault, theft, etc.) the victim has obviously been affected by the defendant’s actions.  The State wants to ensure that the victim has his say to let the court know how the crime has hurt him.

In order to protect the victim’s rights, the courts allow the victim to testify at the defendant’s sentencing.  (Sentencing is when the judge issues the penalty for the crime committed.)  This victim impact statement is typically very influential because it puts a face with the crime.  When victims show up at a sentencing, the sentence is generally a little more stringent.

What is the Rule for the Admissibility of Victim Impact Statements in Utah?

A little over 20 years ago the U.S. Supreme Court ruled in Payne v. Tennessee, 501 U.S. 808 (1991) that “evidence that addresses the defendant’s character or expresses the victim’s opinion of the appropriate sentence at the penalty phase of trial is inadmissible under the Eighth Amendment” of the United States Constitution.  To allow such evidence would be cruel and unusual punishment.

This year, however, the Utah Supreme Court in State v. Mateos-Martinez, 2013 UT 23 (2013) found that Payne‘s hard and fast rule only applies to capital murder cases, that is, cases which can result in the death penalty.

How Does this Apply Practically?

With the Utah Supreme Court’s holding in Mateos-Martinez that “there is no Eight Amendment bar to certain types of victim impact testimony in noncapital, adult sentencing proceedings before a judge” there appears to be absolute freedom for victims to testify to a judge regarding the victim’s opinion of what he believes to be an appropriate sentence for the defendant.  This is very negative for criminal defendants’ rights.  Victims often times have personal vendetta or have a history with the defendant that will cause the victim to want an inappropriate sentence to get back at the defendant.

Although victims should have the right to be heard, the courts should keep in check their statements and limit their testimony to avoid unfair and prejudicial evidence from being admitted.

Medical Expenses

In nearly every divorce case the court will require that the parents maintain health insurance for the parties’ children if it is available at a reasonable cost.  What “reasonable” means is debatable.  Health insurance is so expensive as is that it is unclear whether “reasonable” has any meaning at all.

Both parties must pay half of the out of pocket costs of the premiums paid and the out of pocket expenses for any medical treatments such as copayments and deductibles.  A party who pays child support and also provides the medical insurance will get a credit for money paid toward the medical premiums, which means he can deduct the other parent’s share from his child support payment.

The parent who provides the insurance or incurs medical expenses must provide verification to the other parent of such amounts paid within 30 days of incurring the expense.  The verification requires that parent to then reimburse the other parent for his 1/2 of the cost.

Child Care

Parents are also equally responsible to cover the costs of child care.  When it comes to child care the party who incurs the expense simply has to present proof of the expense to the other spouse and then that spouse has to reimburse automatically monthly thereafter.  The spouse who pays the child care provider directly has to give notice to the other spouse within 30 days of the change.  A failure to provide the notice within the 30 day time period can result in a sanction preventing that spouse from recovering.

You may have a bunch of questions about expenses related to your children and what responsibility you and your spouse have to cover those costs.  If you are looking for legal representation regarding a Utah divorce matter, call us anytime for a free consultation.

Definition of Abuse and Domestic Violence

The key to obtaining or defending a protective order in Utah is to understand what the legal definitions of “abuse” and “domestic violence” are under the Utah Cohabitant Abuse Act. Abuse, for purposes of a protective order is generally defined as intentionally or knowingly causing or attempting to cause a cohabitant physical harm or intentionally or knowingly placing a cohabitant in reasonable fear of imminent physical harm. Thus, under this definition, a person would not necessarily have to have been physically harmed in order to seek court protection, reasonable fear of imminent physical harm would be enough to meet the initial burden. Domestic violence under the statute means any criminal offense involving violence or physical harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm, when committed by one cohabitant against another. Domestic Violence could also mean committing or attempting to commit any violent crime.

Definition of Cohabitation

Another important thing to consider in seeking or fighting a protective order is to understand what cohabitation means under the law. While it may seem somewhat clear at first, the definition of cohabitation can become a little bit grey under certain circumstances. Living in the same residence is cohabitation. Whether it is a boyfriend, girlfriend, husband, or wife, living under the same roof is the general definition. You don’t even have to have been involved in a relationship; roommates for instance may not be romantically involved but are living together and thus qualify under the statute. The Utah Cohabitant Abuse Statute specifically sets forth the following specific relationships that meet the cohabitation requirement:

• is or was a spouse of the other party;
• is or was living as if a spouse of the other party;
• related by blood or marriage;
• one or more children in common;
• biological parent;
• resides or resided together.

Hearings on Protective Orders

After the court issues an ex parte protective order, the court will set a hearing which shall be held within 20 days from the date the temporary protective order is granted. If you have been served with a protective order you will get your day in court. Depending on the county in which you live, the protective order hearing will be held before a commissioner or as an evidentiary hearing before the judge. Whether you have been served with a protective order or you are seeking a protective order, you should have an attorney represent you at the hearing. To get help now, call and speak to a Utah Protective Order Attorney at Salcido Law Firm right away.

Temporary Alimony

The first type of alimony or spousal support that could be ordered in a case is temporary alimony.  Typically this is alimony that is awarded during the pendency of the divorce.  It allows the poorer spouse to get sufficient funds to take care of his or her needs.  Temporary alimony usually lasts until a final divorce decree is entered.  That means it can last for months and even years.  It is extremely important, therefore, that you and your attorney make sure that all relevant financial information is presented to the judge to make sure the temporary alimony award is fair and reasonable.  The judge needs to be in possession of information concerning every aspect of the parties’ income, debts, and assets from all sources to make a determination.

Transitionary Alimony

Transitionary alimony is a form of temporary alimony but is different in the sense that it is implemented in a final decree of divorce rather than prior to the divorce decree being entered.  It is used to provide the spouse in need an opportunity for a specific amount of time to get an education, training, and other skills so that he or she can become self sufficient.  It usually terminates with a new and permanent order which either sets a sum certain of spousal support for a specified time period or it terminates alimony altogether.

Permanent Alimony

Permanent alimony is the set amount of spousal support that the paying party will be obligated to pay for as long as the decree states.  It can only be changed by a showing of substantial change in circumstances through a petition to modify.

If you have questions about spousal support and how you may be affected by the different types of alimony awards, give us a call at 801.413.1753 to talk to a Utah divorce lawyer.

What is Hearsay?

The legal definition of hearsay is a statement the declarant does not make while testifying at the current trial or hearing and which a party offers in evidence to prove the truth of the matter asserted in the statement.  So basically any out of court statement used to prove the truth of what was said is hearsay.

Utah rules of evidence preclude the admissibility of hearsay unless the law provides otherwise.

What is not Hearsay?

There are two types of statements that Utah courts do not recognize as being hearsay and are therefore admissible.  First, a prior statement made by the witness who is testifying is not considered hearsay if it is inconsistent with what the witness is now saying.  Second, statements made by an opposing party is not considered hearsay.

What are the Exceptions to the Hearsay Rule?

Utah courts recognize many exceptions to the general hearsay rule.  The following statements are admissible as exceptions to the hearsay rule:

(1)   Present Sense Impression.
(2)   Excited Utterance.
(3)   Then-Existing Mental, Emotional, or Physical Condition.
(4)   Statement Made for Medical Diagnosis or Treatment.
(5)   Recorded Recollection.
(6)   Records of a Regularly Conducted Activity.
(7)   Absence of a Record of a Regularly Conducted Activity.
(8)   Public Records. A record or statement of a public office
(9)   Public Records of Vital Statistics.
(10) Absence of a Public Record.
(11) Records of Religious Organizations Concerning Personal or Family History.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies.
(13) Family Records.
(14) Records of Documents That Affect an Interest in Property.
(15) Statements in Documents That Affect an Interest in Property.
(16) Statements in Ancient Documents.
(17) Market Reports and Similar Commercial Publications.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets.
(19) Reputation Concerning Personal or Family History.
(20) Reputation Concerning Boundaries or General History.
(21) Reputation Concerning Character.
(22) Judgment of a Previous Conviction.
(23) Judgments Involving Personal, Family, or General History or a Boundary.

There are also exceptions that apply specifically when the declarant (the person making the statement) is unavailable.  There are four exceptions when the declarant is unavailable:

(1) Former testimony given by the declarant under oath.
(2) Statements made under a belief of imminent death.

(3)  Statements made by the declarant which went against the declarant’s own interest.

(4)  Statement of personal or family history.

All of the above exceptions are considered reliable, which is why the common law has allowed for such statements to be made admissible.