Thursday, June 7, 2018

Can Bankruptcy Fix a Judgment?

A judgment is really just a piece of paper signed by a judge that says you owe a debt. For example, in the event you can’t pay a credit card on time, the bank has no immediate recourse. They can call and write, but they cannot immediately attach your personal assets in satisfaction of what you owe.

Can Bankruptcy Fix a Judgment

A judgment is a legal determination that you owe a debt

Once a judgment has been obtained, the game changes. A creditor then has the green light to use the legal system to try to attach your personal property or garnish your wages (if your state’s laws permit garnishment) in satisfaction of the debt.

How do creditors obtain a judgment?

In order to obtain a judgment, a creditor will usually be required to file a lawsuit seeking payment of past due debts. In the credit card scenario, most borrowers fail to respond to the lawsuit, which allows the bank to win by default. If the borrower never files an answer to the creditor’s complaint, the court will assume the debt is valid and automatically enter judgment for the creditor. Although the process can seem complicated, judgments don’t come falling out of the sky. You must receive notice of a creditor lawsuit in order for a judgment to be entered against you. When a creditor files suit, they must notify you by delivering a summons and a copy of the complaint to your home.  The summons will tell you how long you have to respond before a default judgment will be entered against you. If you receive court documents in the mail that you do not understand, it is always best to pick up the phone and call an attorney to make sure that your rights are protected. Creditors are typically more difficult to negotiate with once they have obtained a judgment because their ability to collect is strengthened.

A judgment puts the public on notice that you owe money

A judgment is a matter of public record, often recorded in the county records where you live. One of the truly unfortunate aspects of the recordation of a judgment, is the fact that it will appear on your credit under the “public records” section of the report. Judgments and bankruptcies will both appear under this section of your credit report and both can do significant damage to your FICO score. In addition to telling the story of your financial history, the judgment tells the world that you owe a debt and that your creditors can look to your personal assets in satisfaction. Notice I say “look to your personal assets.” Unless you have property that is considered nonexempt under your state’s exemption laws, even the creditor armed with a judgment will not be able to take anything from you. Debtors who have no property that is vulnerable to creditors are known as judgment proof.

How long do judgments last?

Although this is a function of state law, most recorded judgments last for a period of 10 years, and creditors are often given the opportunity to seek renewal of the judgment prior to its expiration. This means that although you may be broke today, if you win the lottery tomorrow, your creditor can still enforce its judgment against your winnings.

Does bankruptcy eliminate a judgment?

Filing for bankruptcy will discharge your personal liability for debts, including debts that are owed to judgment creditors. However, if a judgment creditor has placed a lien on your property, filing for bankruptcy will not, in and of itself, remove the lien. While the lien cannot attach to property that you acquire after bankruptcy, it can remain as an encumbrance on property that you owned prior to filing for bankruptcy, such as real estate. In some cases, your bankruptcy lawyer may be able to petition the court to have liens that impair an exemption avoided, but judgments are sticky. The best strategy is to take action before they attach.

Next Steps for Bankruptcy Help

Creditors use judgments to step up their efforts in collecting a debt. Prior to a judgment being entered against you, you will likely receive collection letters, phone calls and eventually a summons in a lawsuit. It is important to take action when you receive documents in the mail that you do not understand, working with an attorney sooner rather than later, can help you protect your credit as well as your assets.

Free Consultation with a Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wednesday, June 6, 2018

Selling Your House in Divorce

If neither spouse wants to stay in the family home, or if neither can afford to buy out the other, you can put the property on the market and try to get the best possible price for it. Keep in mind that before the sales proceeds can be divided, you’ll have to pay off the mortgage, any equity line or second mortgage, and the brokers’ fees. You’ll also have to pay any capital gains tax that might apply. These expenses are one disadvantage of selling, especially if market conditions aren’t good for sellers. Another disadvantage is the need to uproot the kids when they’re already adjusting to a lot of change.

Selling Your House in Divorce

But there are advantages, too. Both spouses get money to start over, and it may help you make a clean break.

Once you’ve decided to sell, you’ll be faced with a lengthy and detailed process that involves a number of projects. Each of these projects takes hard work in the best of times, and the emotional upheaval that comes with divorce doesn’t make them any easier.

Picking an Agent to Sell Your House

While in general, it’s fine to sell a house without an agent, it’s not recommended when you’re in the middle of a divorce—the added stress is really not necessary. Try not to spend a lot of time arguing about who your agent will be. If you were satisfied with the agent who worked with you when you bought the house, see whether that person is available. If you’re starting from scratch and having trouble agreeing, each of you should pick a friend or relative, and have those two people agree on an agent. Or you can each choose an agent and have those two agents select a third to sell the house—if the first two agents are willing to do it with no listing in the offing. (They probably will if they both work for the same realty company and you agree that they can pick someone in their company.)

Settling on an Asking Price in Divorce

Take the agent’s advice about your asking price—that’s one of the main reasons you’re using an expert instead of selling the house yourself. Turning that decision over to the agent will eliminate one potential conflict. If you think the agent’s opinion is really off-base, you might need a different agent (or a reality check of your own).

Preparing to Show the House while in Divorce

Getting the house ready can be the most difficult part of the sale process. There’s often some work that needs to be done—minor repairs, painting, and the like—before the house is ready to be shown, so you need to agree on where the money for that will come from. If both of you have moved out by the time you put the house on the market, you can leave the place to be staged by the agent. If one of you is still living there, you’ll need to get things cleaned up, get the clutter out of the way, and probably remove some of the furniture. If this work falls mostly on one person, you might need to figure out a way to compensate that person for the extra effort.

Reviewing Offers for Sale

You’ll have to work together when it comes time to review offers from potential buyers, especially if you live in a place where the real estate market is volatile. Your agent can advise you, of course, but ultimately you’ll have to make the decision jointly.

Dividing the Equity with your Ex

Finally, you’ll have to figure out how to divide the proceeds. In general, that shouldn’t be too complex—the escrow company can distribute the money, after paying off all the obligations on the house and making whatever other payments you’ve agreed to. (For example, you might pay off marital debts with the proceeds of the house sale.) And if one spouse has been making post separation mortgage payments, that spouse has probably been reducing the principle amount and increasing the equity, which may increase the amount to be divided between the spouses after the closing costs and obligations have been paid. The distribution should be adjusted to account for the paying spouse’s contribution.

Imagine that a year passes between your date of separation and the date your house is sold (not an unusual scenario). During that time, your spouse has made all the mortgage payments, in addition to paying child and spousal support. Each month, $1,700 of the $2,200 payment goes to interest, and $500 goes to principal. That means that over the course of the year, your spouse has reduced the principal on your loan, and thus increased your joint equity in the house, by $6,000—using separate property. Your spouse would be justified in arguing that when the profit from the sale of the house is divided, the division shouldn’t be equal. Instead, your spouse should get back the $6,000 in equity that was earned as the result of the payments during the separation.

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
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Tuesday, June 5, 2018

Remarriage and Alimony in Utah

When a couple divorces in Utah, the court may order the spouse in a better financial position to pay the other spouse “alimony,” or payments of financial support. Often, however, the spouse making payments (the “paying spouse”) will want those alimony payments to end if the other spouse (the “supported spouse”) gets remarried or begins living with a new partner.

Remarriage and Alimony in Utah

Overview of Alimony in Utah

Utah law defines alimony as payments made by one spouse to the other after divorce, to help one spouse meet his or her reasonable needs. Courts won’t order alimony in every divorce, but are more likely to do so when the couple has been married for a substantial amount of time, and one spouse has much greater earning ability than the other spouse.

The most common type of alimony is periodic alimony, meaning the paying spouse makes payments on a regular basis (usually monthly), for a set period of time or until a certain event occurs. Alimony can also be in the form of a lump sum payment, or a transfer of a specific piece of property from one spouse to the other.

Impact of Remarriage on Alimony In Utah

Unlike in many other states, alimony in Utah does not automatically end when the supported spouse remarries. When a supported spouse remarries and the paying spouse wants to end alimony, the paying spouse needs a court order terminating alimony before he or she can stop making payments. The couple can either agree to terminate alimony and file a signed agreement with the court, or the paying spouse can file a motion asking the court to end alimony.

If a divorcing couple wants alimony to end automatically when the supported spouse remarries, they need to specifically state that in their divorce agreement. Most Utah divorce agreements that provide for alimony now include a provision that ends alimony when the supported spouse remarries.

When the court decides the terms of a divorce at trial, the judge has the power to order that alimony will not terminate if the supported spouse remarries or cohabits with another person. This typically happens only in extreme circumstances. For example, if a husband and wife have been married 30 years, and the wife never worked during the entire marriage, the court may decide that she deserves to receive alimony even if she remarries.

Termination or Modification of Alimony in Utah

If a paying spouse wants to end alimony payments to a remarried supported spouse who won’t agree to the termination, the paying spouse should file a motion to terminate alimony immediately. When a supported spouse remarries, the court will presume that he or she is giving up the right to receive alimony unless the supported spouse can prove otherwise. Except in very rare cases, the court will terminate the paying spouse’s obligation to make alimony payments.

Unless a couple’s divorce agreement states otherwise, the court has the power to modify or terminate periodic alimony if there is a substantial change in financial circumstance of either the paying spouse or the supported spouse. For example, if the supported spouse begins making much more money, or the paying spouse’s income decreases significantly, the court may modify or terminate alimony.

The court can change alimony as of the date either spouse files a motion to modify or terminate alimony. The court can’t, however, change alimony retroactively. In other words, a spouse must still pay whatever amounts are owed at the time he or she files a motion to modify alimony.

Impact of Cohabitation on Alimony in Utah

If the supported spouse’s financial needs decrease because he or she begins living with another person, the court can choose to reduce or eliminate alimony. If you are paying alimony and discover that your ex-spouse’s financial needs are lower due to his or her cohabitation with another person, you will probably want to file a motion to modify or terminate alimony.

In order to end or lower alimony, you’ll need to show that your ex-spouse’s financial needs have decreased as a result of his or her cohabitation with another person. The court will require the supported spouse to detail the new living partner’s contributions to the household expenses.

If a divorcing couple wants alimony to automatically end when the supported spouse begins cohabiting with another person, they can say so specifically in their divorce agreement.

Free Consultation with an Alimony 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 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
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Monday, June 4, 2018

Medicaid and Trusts

For the person who is not a multi-millionaire, the greatest threat to the estate is not probate. It is not estate taxes. The greatest threat is nursing home costs. It is for this reason that estate planning is essential to protect your assets from Medicaid liens should you ever require long term care. With careful Medicaid planning, you may be able to preserve some of your estate for your children or other heirs while meeting the Medicaid asset limits.

Medicaid and Trusts

Some individuals believe that transferring assets is a viable method of protecting ones assets. The problem with transferring assets is that you have given them away. You no longer control them, and even a trusted child or other relative may lose them. A safer approach is to put them in a trust.

A trust is a legal entity under which one person — the “trustee” — holds legal title to property for the benefit of others — the “beneficiaries.” The trustee must follow the rules provided in the trust instrument. Whether trust assets are counted against Medicaid’s resource limits depends on the terms of the trust and who created it.

A trust is either revocable, meaning it can be changed or ended by the trustor at anytime, or irrevocable, which is typically permanent and unalterable.

Revocable Trust

A “revocable” trust is one that may be changed or rescinded by the person who created it. Medicaid considers the principal of such trusts (that is, the funds that make up the trust) to be assets that are countable in determining Medicaid eligibility. Thus, revocable trusts are of no use in Medicaid planning.

Irrevocable Trust

An “irrevocable” trust is one that cannot be changed after it has been created. In most cases, this type of trust is drafted so that the income is payable to you (the person establishing the trust, called the “grantor”) for life, and the principal cannot be applied to benefit your or your spouse. At your death the principal is paid to your heirs.

This way, the funds in the trust are protected and you can use the income for your living expenses. For Medicaid purposes, the principal in such trusts is not counted as a resource, provided the trustee cannot pay it to you or your spouse for either of your benefits. However, if you do move to a nursing home, the trust income will have to go to the nursing home.

Testamentary trusts

Testamentary trusts are trusts created under a will. The Medicaid rules provide a special “safe harbor” for testamentary trusts created by a deceased spouse for the benefit of a surviving spouse. The assets of these trusts are treated as available to the Medicaid applicant only to the extent that the trustee has an obligation to pay for the applicant’s support. If payments are solely at the trustee’s discretion, they are considered unavailable.

Remember, Medicaid is a joint federal-state program. While there are some federal guidelines, states have some of their own qualification guidelines, so it is important to check the laws in your state and to consult a qualified attorney when setting up the trust.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate 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
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Sunday, June 3, 2018

Do’s and Don’ts for Cohabitation

Even though a couple may not decide to get married, living together without a legal union may still have its own hardships. A couple that’s living together presumably will be sharing the cost of rent, utilities, food, and other daily expenses. There are also the intangibles when two or more people share a space, such as cultural preferences and personal hygiene. It’s important to keep in mind the following do’s and don’ts before becoming cohabitants with your significant other.

Do's and Don'ts for Cohabitation

THE DO’s

DO consider entering into a cohabitation agreement before moving in together. It can set the ground rules for the financial and other arrangements in the relationship, and may prevent a lot of headaches if the relationship doesn’t last.

DO hold title to any major purchases in the name of the person or persons who is/are actually paying for it. If you buy a car with your own down payment and make all the monthly payments yourself, the car should be in your name only. Joint purchases, however, should be in the names of both parties.

DO keep finances separate if you want to avoid heated disputes in the event the relationship terminates.

DO keep accurate records of your financial contributions to any property held by your partner.

DO write “gift” or “loan” on checks written to your partner if you want to negate any possible suggestion that you have been supporting him or her, which is an issue that can arise in a post-break-up “palimony” lawsuit.

DO remember that a never-married parent has the same child support obligations as a once-married parent.

THE DON’Ts

DON’T commingle your money by opening joint accounts, incurring joint debts, or making joint purchases if you want to avoid legal complications and the possibility of a “palimony” suit for support of your partner after a split.

DON’T allow your partner to hold title to major purchases in his or her name alone if you are both paying for that property, even if he or she orally agrees that the house or car belongs to both of you. The deed or title is more convincing evidence than one partner’s allegation of a spoken promise.

DON’T co-sign or guarantee debts that are incurred by your partner unless you intend to be equally responsible for paying them back, even if you should split up.

DON’T become so financially dependent on your partner that you limit your ability to support yourself in the future. Whereas divorced spouses may have the legal obligation to support each other, especially if one gave up a career to take care of the home and children, the same is not true of former cohabitants. Either keep up your skills and contacts in the job market, or consider a written agreement setting forth your partner’s legal obligation to help support you if the relationship ends.

DON’T hold yourselves out to the public as husband and wife, allow yourselves to be known as or referred to as “Mr. and Mrs. So-and-so,” or use the same last name, even casually, if you want to avoid the legal complications of a “palimony” suit or the potential for common-law-marriage status should the relationship end.

Free Initial Consultation with a Utah Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law 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
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Saturday, June 2, 2018

Different Kinds of Divorce in Utah

There’s not just one way to divorce. The differences can be in the law, like fault or no-fault, or in the way you and your spouse approach it, like uncontested, contested, or default. This article describes briefly the different kinds of divorce in general terms, with links to more information about some kinds of divorces.

Different Kinds of Divorce in Utah

No matter how you slice it, divorce is expensive and time consuming. The most important variable is how well you and your spouse are able to put aside your anger and grief and cooperate on the big issues of money and children. The better you are at working together to make decisions for your changing family structure, the better for your bank account and for your chances of emerging from the divorce with a decent relationship with your ex.

Summary Divorce

In many states, an expedited divorce procedure is available to couples who haven’t been married for very long (usually five years or less), don’t own much property, don’t have children, and don’t have significant joint debts. Both spouses need to agree to the divorce, and you must file court papers jointly. A summary (sometimes called simplified) divorce involves a lot less paperwork than other types of divorce—a few forms are often all it takes. You can probably get the forms you need from the local family court. For this reason, summary divorces are easy to do yourself, without the help of a lawyer.

Uncontested Divorce

The best choice, if you can make it happen, is an uncontested divorce. That’s one in which you and your spouse work together to agree on the terms of your divorce, and file court papers cooperatively to make the divorce happen. There will be no formal trial, and you probably won’t have to ever appear in court.

Default Divorce

The court will grant a divorce by “default” if you file for divorce and your spouse doesn’t respond. The divorce is granted even though your spouse doesn’t participate in the court proceedings at all. A default divorce might happen, for example, if your spouse has left for parts unknown and can’t be found.

Fault and No-Fault Divorce

In the old days, someone who wanted a divorce had to show that the other spouse was at fault for causing the marriage to break down. Now, every state offers the option of “no-fault” divorce. In a no-fault divorce, instead of proving that one spouse is to blame, you merely tell the court that you and your spouse have “irreconcilable differences” or have suffered an “irremediable breakdown” of your relationship.

Mediated Divorce

In divorce mediation, a neutral third party, called a mediator, sits down with you and your spouse to try to help you resolve all of the issues in your divorce. The mediator doesn’t make any decisions; that’s up to you and your spouse. Instead, the mediator helps you communicate with each other until you can come to an agreement.

Collaborative Divorce

Collaborative divorce involves working with lawyers, but in a different way from the usual expectation. You and your spouse each hire lawyers who are trained to work cooperatively and who agree to try to settle your case. Each of you has a lawyer who is on your side, but much of the work is done in cooperation. Each of you agrees to disclose all the information that’s necessary for fair negotiations, and to meet with each other and both lawyers to discuss settlement. You all agree that if your divorce doesn’t settle through the collaborative process, your original attorneys will withdraw and you’ll hire different attorneys to take your case to trial.

Arbitration

In arbitration, you and your spouse agree that you’ll hire a private judge, called an arbitrator, to make the same decisions that a judge could make, and that you will honor the arbitrator’s decisions as if a judge had made them.

Contested Divorce

If you and your spouse argue so much over property or child custody that you can’t come to an agreement, and instead take these issues to the judge to decide, you have what’s called a contested divorce. You’ll go through a process of exchanging information, settlement negotiations, hearings, and, if you can’t resolve the case after all that, a court trial.

Divorce for Same-Sex Couples

All States now allow same-sex couples to marry—not just Utah, Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New York, and Vermont—but they’re not the only states that allow same-sex couples to divorce. In the past if you lived in California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, Rhode Island, and Washington State, same-sex couples had to be registered as domestic partners or entered into civil unions must use the same forms and procedures as married couples to end their legal relationship.  Unless the United States Supreme Court overrules themselves, this is the law of the land.

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 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
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Friday, June 1, 2018

Calculating Alimony in Utah

Alimony is money one spouse pays to the other for support either during or after a divorce. In Utah, alimony is sometimes called “spousal maintenance,” “spousal support,” or a “spousal allowance.” When spouses with large differences in income separate, a lower earning spouse may be unable to continue paying for normal living expenses, in which case a court may require the higher earner—whether that’s the husband or the wife—to assist the lower earner financially for at least some period of time.

Calculating Alimony in Utah

Types of Alimony Available in Utah

Utah law allows a judge to award temporary alimony during divorce proceedings—sometimes referred to as alimony “pendente lite”—as well as temporary or permanent alimony after the divorce is final. Usually, the paying spouse gives the recipient spouse a specified amount periodically—monthly or biweekly, for example—for a set length of time. In a few cases, the alimony order calls for payment of a lump sum.

Permanent alimony was once common but is becoming increasingly rare–and even when “permanent” alimony is ordered, it’s usually not truly permanent, but just long-term. Permanent alimony is generally reserved for older spouses who have served as homemakers during long marriages. A couple can also agree between themselves to provide one spouse with long-term or permanent alimony.

Particularly in shorter marriages, courts tend to look at alimony as rehabilitative—paid for a temporary period of time to allow a spouse to find a job or obtain training and education to improve employment prospects.

In some cases a court may award limited alimony as reimbursement to a spouse who worked to support the couple while the other spouse attended graduate school or advanced vocational training.

Eligibility for Alimony

To award alimony a court must find that one spouse has financial need and the other has the ability to pay. A court will determine whether there is both need and ability to pay by looking at all of the relevant circumstances in a particular case. One of the biggest factors an Utah court will consider is the length of a marriage. In a short marriage, the mutual investment in the couple’s standard of living is generally substantially less, calling for either brief alimony or none at all.

In evaluating a spouse’s need, a court will first consider the extent to which separate assets, or any marital assets the spouse receives in an equitable property division, may provide a sufficient means of support without an alimony award. (This means that alimony is always determined after the property division is complete.)

In determining the ability of a higher earning spouse to pay alimony, the court will generally not consider as part of the paying spouse’s assets any property the spouse owned before marriage, or acquired by gift or inheritance, unless the property was used by the couple as a source of income during marriage. A court may consider vested retirement benefits accumulated during the marriage as an available source of alimony if the couple has been married for at least 10 years.

Other factors a court might take into account in deciding whether to award alimony include:

  • each spouse’s age and health
  • the standard of living during the marriage
  • the lower earner’s contribution to the increased earning power of the higher earner
  • a spouse’s past services as a parent or homemaker
  • both spouse’s future opportunities to gain income and assets
  • the needs of any dependent children of the couple, and
  • any conduct by either spouse that contributed to the breakup of the marriage.

There is no specific formula governing the calculation of alimony in Utah, and a court has great discretion in deciding what amount to award, or whether to award any amount at all.

Termination or Modification of Alimony

Unless the couple has a written agreement stating that they won’t seek any changes in alimony, a court can modify periodic payments on a showing of material change in circumstances. Proof that a spouse has remarried or is cohabiting in a marriage-like relationship with a person of the opposite sex will generally result in termination of an award.

Tax Effects of Alimony

Periodic alimony payments are usually taxable to the recipient and tax-deductible by the payer. Couples can sometimes take advantage of this situation by structuring alimony payments to create the best possible tax scenario for both spouses. The IRS generally treats lump-sum payments as property distributions even if the court or the couple refers to the payment as alimony. Under these circumstances there would be no tax effects for either spouse.

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 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
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