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holiday safety

Holiday Safety: 5 Tips from Gallian Welker & Beckstrom

The holiday season is approaching with all its fun and hustle and bustle, and friends and families will gather to celebrate and spend time together. However, the holiday season is also a time to be on alert as there are more distractions and, usually, more people out and about. To help you and your loved ones stay safe, follow these holiday safety tips.

1. Beware of Last-Minute Shoppers

Last-minute holiday shopping can be dangerous. People are trying to navigate crowded parking lots and find that perfect gift for their loved one. Exercise patience so you can have a calm, clear mind, and be aware of your surroundings at all times–especially while backing out of parking spots. Do not drive distracted, always wear a seatbelt, drive slow, and carefully watch for pedestrians.

2. Decorate Carefully

There are thousands of emergency room visits during the holidays due to accidents involving decorating. Make sure you use steady ladders when hanging lights (and use them correctly), and keep children out of the way of any ladders. Avoid using glass decorations if you have young children around. Any poisonous plants, such as mistletoe and poinsettias, should be kept far from reach from children and pets.

3. Be Careful When Cooking

Always be cautious when working with high heat and oil (fried turkey, anyone?). Severe burns can occur during cooking accidents. Do not wear loose clothing around open flames or high heat, and if there is a kitchen fire, smother it rather than use water.

4. Never Drive While Intoxicated

Many people enjoy alcohol as they gather with friends and family, but always be responsible and never drink and drive. Alcohol impairment is involved in a large number of holiday accidents and deaths, and it is completely preventable. Have a designated driver or use a rideshare service instead to get home.

5. Consider Toy Safety

When buying gifts for small children, consider the safety of the toy first. Are there small parts that can be swallowed or present a choking hazard? Button batteries are especially dangerous for young children, and they can prove fatal if ingested. Do your research before buying.

The holiday season is a fun and joyous time of year, and holiday safety can make it even more so. If you or a loved one is involved in an accident or suffers an injury (at the fault of someone else) during the holidays, we want to help. Give us a call at 435-628-1682 and we will discuss your options to get you the help you deserve. The legal team at Gallian Welker & Beckstrom wishes everyone a happy and safe holiday season.

2021 Pro Bono Virtual Attorney of the Year

Our very own Travis Barrick was selected by Nevada Legal Services as the recipient of the 2021 Pro Bono Virtual Attorney of the Year. Travis consistently gives support and encouragement to his clients, especially in his work in Veterans Affairs. He is dedicated to helping and protecting those people in our community who may have been overlooked and making their lives better. Travis will be honored at a virtual event on August 23rd at the Champions of Justice Reception, hosted by Nevada Legal Services. All proceeds will go directly to helping Nevada residents access free legal services and representation.

If you would like to contribute by attending the event, please email frontdesk@utahcase.com and we will give you the event information.

separate property

Property Division in Divorce, Pt 1

CLASSIFICATION OF SEPARATE PROPERTY AND MARITAL PROPERTY IN A UTAH DIVORCESegment #1: Inextricably Commingled Separate Property

By: Zachary C. Lindley, Esq.
Gallian Welker & Beckstrom, L.C., St. George, Utah

As discussed in the Introduction to this blog post series, one of the exceptions to the presumption that separate property retains its character is when such property has been “inextricably commingled”—a costly classification for the spouse to whom the separate property would otherwise belong.

Courts are given broad discretion in making the determination as to whether separate property has been commingled with marital property so as to lose its character.[i] The analysis is highly fact intensive and there is no common rule upon which to rely in every case.

The following list represents some of what a court may consider in determining whether to classify otherwise separate property as marital property:[ii]

  • Whether there was expenditure of marital funds on the proposed separate property.
  • Whether co-mingled funds were subsequently transferred into an account that would otherwise be classified as separate property.
  • Whether, despite being put in the name of a third-party, marital funds were used to open a separate account.
  • Whether an account that would otherwise be deemed separate property is funded with a party’s day-to-day income and expenses, including marital earnings.
  • Whether marital funds have been expended toward separate property in the form of loan payments, taxes, etc.
  • Whether a party’s marital income, along with that party’s separate earnings, have been deposited into an account, and then said account is used to pay both business and personal expenses.
  • Whether an account consisting of both marital and separate property is used to make payments toward the purchase or improvement of otherwise separate real property.
  • Whether the property has been maintained in segregated accounts and portfolios.
  • Whether the only change to the property is a result of conversion from one investment medium to another, g. stocks, bonds, real estate, etc.
  • Whether a party uses proceeds from the sale of an asset owned prior to marriage to purchase another asset during marriage, and then that party uses marital income to make installment payments or effectuate other upkeep on the asset purchased.
  • Whether, despite premarital and marital funds being deposited together, it is still possible to trace and separately identify the funds, therefore maintaining the character of the property rather than losing its “identity.”
  • Whether the property is only temporarily placed in a joint account.
  • Whether, regardless of the change of the property through certain transitions, the separate property remains traceable and identifiable.
  • Whether the property becomes so commingled that it is impossible to distinguish or apportion it.
  • Whether there are sufficient records or evidence from which a determination can be made as to which portion of the combined fund is separate and which is community property.
  • Whether, despite being commingled for only a short period of time, there is other evidence that the co-mingled property was intended to be a gift to the community or that its status would thereafter be altered.
  • Whether the separate funds are far in excess of community funds deposited in the same account, resulting in more easily effectuated tracing.

Takeaways for Family Law practitioners:

When advising clients, ensure that you acquire all supporting documentation of the transactions surrounding any claimed separate property that has potentially been commingled with marital property. If such property can still be identified and traced, in a manner that is understandable to the parties and the court, there is a chance it will retain its character and not be converted to marital property.

Look for Segment #2 of this blog post series regarding the other spouse’s augmentation, maintenance, or protection of separate property.

[i] See Clarke v. Clarke, 2012 UT App 328, 292 P.3d 76; Elman v. Elman, 2002 UT App 83, 45 P.3d 176.

[ii] The list provided herein is supported by the following authority: Sandusky v. Sandusky, 2018 UT App 34, ¶12, 417 P.3d 634; Liston v. Liston, 2011 Utah App 433, 269 P.3d 169; Keiter v. Keiter, 2010 UT App 169, 235 P.3d 782; Oliekan v. Oliekan, 2006 UT App 405, ¶23, 147 P.3d 464; Schaumberg v. Schaumberg, 875 P.2d 598, 603 (Utah Ct.App.1994); Dunn v. Dunn, 802 P.2d 1314, 1321 (Utah Ct.App 1990); Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App 1990); Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988); 37 Am. Jur. Proof of Facts 2d 379 § 8. Mode of transmutation—By commingling; In re Marriage of Shui and Rose, 132 Wash.App. 568, 125 P.3d 180 (2005); Myrland v. Myrland, 19 Ariz.App. 498, 508 P.2d 757 (1973); In re Marriage of Jafeman, 29 Cal.App.3d 244, 105 Cal.Rptr. 483 (1972).