Tag: Utah divorce

divorce attorney

7 Questions to Ask In Your First Meeting With a Divorce Attorney

Choosing a divorce attorney is one of the most important divorce-related decisions you will make. Many people choose an attorney based on personal recommendations from family and friends, but it’s still wise to do your research and ask the right questions when considering who to hire.

Family law is a complex specialty and you want to make sure you are working with someone who is qualified and has the experience needed to handle your case. We’ve put together 7 questions to ask in your first meeting with a divorce attorney so you can be sure that attorney is the right one for you and your case.

Questions to Ask In Your First Meeting With a Divorce Attorney:

1. How long have you been practicing family law, and what aspect of family law do you specialize in?

2. What do you need to know from me?

3. What can I expect the divorce process to be like?

4. What is your retainer up front? What will I be charged for and how much?

5. What can I do to keep the cost of my divorce down?

6. What is your strategy for my case, and how long do you expect it will take to resolve?

7. What should my next steps be after this meeting?

There’s no question that going through divorce is challenging and stressful and taxing. When it comes to finding a divorce attorney you can trust, coming prepared for the first meeting with your divorce attorney will help make the process go more smoothly.

How We Can Help

Are you considering separation or divorce? Contact us to schedule a consultation with an experienced divorce attorney who can help guide you through the process.

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).

property division

Property Division in Divorce–Introduction

CLASSIFICATION OF SEPARATE PROPERTY AND MARITAL PROPERTY IN A UTAH DIVORCE—Introduction: Three Circumstances Under Which Presumption of Retention of Separate Property Can Be Overcome

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

Undoubtedly, property division is at the crux of all drawn-out and contentious divorces. The classification of separate and marital property raises both traditional and nuanced issues, while never arriving at a hard-and-fast rule on how to make a determination as to when otherwise separate property becomes marital property. This blog post, followed by its three corresponding segments, is intended to provide the reader with a foundation as to how courts in Utah have classified separate and marital property under a diverse set of facts.

During a property division in Utah at the dissolution of a marriage, there is an “overriding consideration…that the ultimate division be equitable—that property be fairly divided between the parties.”[i] When so dividing property, there is a general presumption that each party retain his or her separate property—“married persons have a right to separately own and enjoy property, and that right does not dissipate upon divorce.”[ii] Marital property ordinarily includes all property acquired during the marriage, while separate property typically includes premarital property, gifts, inheritances, which also includes any appreciation that may accrue during the marriage.[iii] However, Utah courts have consistently found otherwise separate property is “not totally beyond the court’s reach.”[iv]

There are three circumstances identified in Utah under which the presumption of retention of separate property can be overcome: (1) the separate property has been inextricably commingled so as to lose separate property character; (2) the other spouse has augmented, maintained, or protected the separate property; and (3) in extraordinary circumstances when equity so demands.[v] Courts are given broad discretion in dividing property upon dissolution of the marriage.[vi]

In the following three (3) segments to this introductory blog post, we will explore each of the aforementioned exceptions to presumption of retention of separate property—namely, (1) commingling, (2) augmentation or maintenance, and (3) extraordinary circumstances.

 

[i] Granger v. Granger, 2016 UT App 117, ¶15, 374 P.3d 1043 (internal citations and quotations omitted); see also Utah Code Ann. § 30-3-5.

[ii] See Lindsey v. Lindsey, 2017 UT App 38, ¶32, 392 P.3d 968 (internal citations and quotations omitted).

[iii] Id. at ¶31.

[iv] See Sandusky v. Sandusky, 2018 UT App 34, ¶12, 417 P.3d 634.

[v] See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App 1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

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