Is Dating During Separation Adultery?

Legal separation can mean different things in different states, so it should come as no surprise that the laws regarding dating after Legal separation are also somewhat inconsistent. Dating might be adultery before a divorce is final but it might not be. The significance of committing adultery also varies from state to state. Some states consider a couple legally separated when they have signed a separation or marital settlement agreement and relocated to separate homes. A separation agreement is a binding contract, but the contract is between the spouses and doesn’t involve the court until they’re divorced and it becomes part of a decree. Until that time, they’re still married. In other states, legal separation is a process similar to divorce. One spouse must file a petition with the court and a judge decides issues of property, support and custody, much as he would in a divorce. At the end of the litigation, the court issues a decree of legal separation. Some states, call this a divorce from bed and board. However, spouses are still legally married when they separate by this method.

Dating is not adultery in itself. Adultery requires that sexual contact exists between a married individual and someone other than his spouse. If a married but separated man takes a woman out for dinner, but drops her off at the end of the evening and goes his own way, it’s generally not adultery. Sexual contact probably did not occur. If he dates that woman repeatedly and they begin spending time together in each other’s homes, this can open the door for his spouse to claim the affair is adulterous because sexual contact might be taking place.

Adultery During Separation

In some states, adultery is a crime, although it is rarely prosecuted. In states that still recognize fault-based divorces, adultery has more of an impact. If a man begins dating during a legal separation in one of these states, and if his wife can prove that the relationship is sexual in nature, she can usually file for divorce on grounds of adultery. This can affect issues of property distribution and alimony. However, some states make a legal distinction between dating during separation and dating while living together as man and wife. In Utah, unless one spouse is clinically insane, couples can only file for divorce after a one-year separation period. If a spouse commits adultery prior to the beginning of the separation, it affects issues of alimony. If the adultery occurs after the date of separation, it does not.

Other Considerations

Under the terms of the Uniform Code of Military Justice, adultery is a criminal offense. However, the timing of the adultery may be considered. Adultery in the military is punishable when it is construed as morally wrong. Therefore, if the adultery occurred after separation and not before, it may be excusable during a military inquiry. It would depend on the opinion of the officers conducting the inquiry. In states where legal separation involves a court proceeding similar to and as complicated as divorce, or when spouses have signed a separation agreement and want to begin dating, it might make sense for them to simply divorce instead, so they can move on with their lives. Dating during a marital separation may or may not classify as cheating, depending on the promises made and expectations held by both spouses. Having an affair during a temporary, let’s-take-a-breather separation looks very different than a romantic involvement after a final, legal separation. In either case, however, dating while technically married can have detrimental legal effects in some states.

Expectations and Promises

When the word cheating is used in a marriage, it generally implies that one spouse has broken promises of fidelity. For some people, they never end, and the “till death do us part” vow makes any dating forbidden ever, even after separation or divorce. Others see marriage as a legal institution that is terminated together with all commitments and responsibilities upon divorce. Still others consider some types of separations enough to cancel marital commitments.

Types of Separations

Whether separation annuls marriage vows in a moral sense may depend on the type of separation. Marital separation means that a couple is living apart, but the range of separations is great. Some couples decide to live apart for a few months while working on their issues. Sometimes spouses separate when one moves out and files for divorce. Other married couples go to court and obtain a legal separation, with a court decree resolving all custody, support and property issues, the equivalent of a divorce in all but name.

Evaluating Your Separation Commitments

To decide whether your actions constitute cheating, morally speaking, you’ll have to review the terms of your separation. If you and your spouse agreed not to see anyone during the separation, dating is cheating. If nothing was said about the subject, but you and your spouse are actively working on your marriage during the separation, a promise not to get intimate with a third party can be implied. A break is not a break-up, according to psychologist Mark White, and dating around violates the spirit of your arrangement.

Legal Consequences

Years ago, having an affair while still in a marriage constituted adultery and provided grounds for divorce. All states now provide for no-fault divorce, allowing divorce, and in some, like California, adultery cannot be considered in property division or support awards either. However, this doesn’t always mean that adultery has no effect on your divorce. The majority of states also permit fault-based divorce on grounds including adultery. If your spouse wins a divorce based on your adultery, it may affect the division of marital property as well as alimony rights. As you can see, the definition of cheating has many definitions and variations based upon circumstances and basic understandings (implicitly or explicitly) between couples. One cannot make claims as to what is right and not right, but safe to say there should be an understanding between the individuals involved.

Married couples split up. Many will then go on to start new, happy, fulfilling relationships. It is not uncommon for separated couples to move on by moving in with their new respective partners. Sometimes couples will decide to live separately before seeking a divorce so that they can use that period of separation as the basis for their divorce. Once you have been living apart for more than two years, this can be used as grounds for your divorce as long as you are both in agreement. If you wanted to proceed with a divorce sooner, then one of the two ‘fault based’ grounds would need to be relied upon. If your partner does not agree to proceeding on the basis of two years separation – and you do not want to use the fault based grounds – you would need to wait until you had been separated for five years before you could start divorce proceedings. It does not matter if you have agreed with your spouse to see other people, if you do it on holiday abroad, if they have done it first, or even if you have moved in with your new partner. It is still adultery. Your husband or wife can use your adultery as the basis of a divorce petition as it is one of the five facts that can be used to prove that a marriage has broken down beyond repair. With the party that files for the divorce also usually the one that pays the court’s fee of $318, it’s not surprising that, when a married couple separates because one party committed adultery, it’s the spouse that committed the offence that looks to apply for the divorce in order to shoulder this cost.

Unfortunately, this inevitably causes problems. When any of the three fault based grounds (adultery, unreasonable behavior or desertion) are cited as the reason for a marriage irretrievably having broken down, the petitioner (the individuals that formally requests the divorce) must state that they find it intolerable to remain married to the respondent (the party not filing for divorce). Because of this, it is not possible for someone to file for a divorce whilst relying on their own adultery. By doing this, the petitioner would essentially be claiming that they could no longer reasonably be expected to remain married to the respondent as a result of their own actions – something which the courts will not accept. When couples find themselves in this situation, they’re usually left with two options: the ‘victim’ of the adultery can file for the divorce or the adulterer can file on the grounds of their spouse’s unreasonable behavior. The former is problematic because the ‘victim’ of the adultery feels that they should not pay the court’s fees. The latter can cause problems when the ‘victim’ feels they should not be blamed for the breakdown of the marriage or because they simply have not behaved unreasonably.

Under such circumstances, the logical solution is actually pretty simple: the party that committed the adultery can pay their spouse the fees in question before they file for the divorce. Whilst this would mean that the couple could obtain a divorce on the grounds of adultery, that the appropriate party would be blamed for the breakdown of the marriage and that the person that committed the adultery would foot the bill for the court’s fees, there is still one hurdle that’d need to be cleared: a lack of trust. Once it becomes necessary for the parties to exchange money before the process has even begun it is, in our experience at least, normal for a lack of trust to cause delays. If the parties are still on relatively good terms, this can usually be overcome with little more than simple reassurance. When the relationship has become more fraught, though, the thought of simply handing over several hundred pounds is met with trepidation and a standoff usually ensues. One possible solution here is that the petitioner files for the divorce under the proviso that, following them having received correspondence from the court (and therefore proof that the request was filed and the fee paid), the respondent repays them. In this instance, the petitioner can seek added security by requesting that the courts order the respondent to return these fees to them by ticking the relevant box in section 11 of their Divorce Petition meaning that they can then pursue repayment through the small claims court if necessary. This arrangement should also suit the respondent as they will not be pursued by the court in any way unless the petitioner authorizes the necessary proceedings. Dating might be termed as adultery before the divorce is confirmed – or it may not be.

The significance of both concepts is very crucial. It is not new to see couples moving on with their lives after separation. Fault-based divorces work on the concept of adultery as well. The spouse needs to provide strong evidence for sexual relations of their significant other with someone else. In most states, only clinical sanity is a barrier for legal separation and the time allotted for divorce exceeds a year. Despite that, before this time period, any sexual relations with someone other than your spouse are regarded as adultery. They might seriously affect the provision of property and financial divisions. However, the leniency dates from the time separation began. In most areas, adultery is more of a criminal offense. Timing and recurrence rates, however, are of major importance during such cases. The law’s opinion on this issue makes a big difference and you can, by no means, challenge the law. Signing a separation and beginning to date makes sense both legally and personally. This might confirm the need for divorce. This will also increase the ease of moving on and continuing a new life. Choosing to divorce is rarely an easy decision to make, but escaping a bad situation can feel like a breath of fresh air. For many men and women, divorce provides a rare opportunity for a new beginning.

The way adultery will impact your divorce depends on your state’s laws, which is why it’s wise to hire family lawyers to guide you through this process. For instance, in no-fault divorce states like Utah it is no longer necessary to prove that your spouse committed adultery or abandonment to file for divorce. And while some states do still use adultery as a partial basis for alimony, this is also becoming less common. However, in some states, proof of adultery could have an impact on your divorce settlement. If you and your spouse have separated but not divorced, you may be in a legal gray area when it comes to adultery. Again, consult a family law firm to understand the risks, if any, to dating while divorcing. Unfortunately, some divorces can take years. During this time, you may feel like you’re ready to re-enter the dating world. The best course of action is talking to your divorce lawyer. Each divorce is different, and your state may have specific laws regarding separation prior to divorce.

Why people may date during their divorce

People date during a divorce for a variety of reasons. The most common reason is that it’s a welcome distraction during a stressful time. Gaining positive energy and contemplating future relationships is one of the many reasons people get divorced in the first place. Others may seek out dates for a sense of empowerment that they may not have had during the course of their marriage. Between 40% to 50% of married people will get a divorce, and it’s not a surprise that some people will inevitably date during the divorce process. When you want to discuss your rights when you’re going through a divorce, contact divorce lawyers in your state to give you the advice you need during this trying time. Dating during divorce can have legal consequences both for the divorcing spouse and their new partner. Dating while separated can hold up and complicate the divorce proceedings, can effect custody and visitation decisions, and rarely but possibly, depending on the state, may be grounds for a lawsuit.

Effects on the Divorce

Dating while going through a divorce can have a number of negative effects on the divorce proceedings, both in court and emotionally. Additionally, while every state is now a no-fault divorce state, marital misconduct can still be considered in some situations. Marital misconduct can encompass a wide variety of actions, including adultery and cruelty. During the proceedings, the fact that a dating spouse is already separated will be noted, but that does not necessarily mean the circumstances of the new relationship will not be considered. For example, the judge might disapprove of the dating spouse’s behavior and develop a bias against them. While such a bias is ostensibly unacceptable in the some system, judges are human and biases are natural and even probable in some instances. In addition, in some states the new relationship may be considered in the division of property or alimony determinations, so the dating spouse may not get as much as they want out of the divorce depending on the new partner’s financial circumstances.

This is especially true if the dating spouse begins cohabitating with their new partner during the divorce process. Some states have laws stating that a spouse cohabitating with a partner of the opposite sex is presumed to have a decreased need for spousal support. Dating before a divorce is final is one of the typical issues that cause heightened conflict during a divorce. The other spouse, if they are not dating, may develop the idea that the dating spouse was committing adultery even if that idea hadn’t surfaced before. Or, the other spouse may simply suffer anger and hurt as a result of the limited amount of time it apparently took the dating spouse to recover and move on. Either way, the other spouse may become confrontational, may become unwilling to compromise and obstinate during the proceedings, or, at best, may become cold and distrustful of the dating spouse. These feelings can cause property division to be more difficult, as well as other aspects of the divorce.

Separation Lawyer in Utah Free Consultation

When you need to get a divorce or separation in Utah, please call Ascent Law LLC (801) 676-5506 for your free consultation. We want to help you.

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<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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Real Estate Lawyer Park City Utah

Always hire the services of an experienced Park City Utah real estate lawyer to draft your construction contracts. The clauses of the contract will determine how you can legally terminate the contract.

The termination of a contract for default is the exercise of the property owner’s express right to completely or partially terminate a contract because of the contractor’s actual or anticipatory failure to perform its contractual obligations. If the contractor can establish, or if it is otherwise determined, that the contractor was not in default, or if the failure to perform was excusable (i.e., the failure arose out of causes beyond the control and without the negligence of the contractor).

In general, the Default articles may be looked on as a limitation of remedies clause, which results in a forfeiture of rights by the contractor. The articles establish the rights of the property owner and the procedures it must follow in the event the contractor fails to perform his contractual obligation.

When the Default articles are invoked, the property owner is not liable for the contractor’s costs on undelivered work and is entitled to repayment of any advance or progress payments made to the contractor. The clause does not permit the property owner to use it as authority to acquire any completed supplies or manufacturing materials, unless it is ascertained that the property owner has acquired title under some other provision of the contract. If the property owner has acquired title, it is required to pay the contractor the contract price for such supplies or the amount agreed to by the parties for any manufacturing materials acquired by the property owner.

Furthermore, the contractor is liable to the property owner for any excess costs incurred in acquiring supplies or services similar to those terminated for default and for any other damages, whether or not repurchase is effected.

Procedures for invoking default

When a default termination is being considered, the property owner has to determine which type of termination action (i.e., default, convenience, or no-cost cancellation) is most appropriate under the circumstances. A default termination action may be initiated only after review by contractual and technical personnel and by counsel to ensure the propriety of the proposed action. In determining whether to terminate a contract for default, the property owner is required to consider such factors as

• The terms of the contract and the applicable laws and regulations;

• The specific failure of the contractor and the excuses for that failure;

• The availability of the supplies or services from other sources;

• The urgency of the need for the supplies or services and the period of time required to obtain them from other sources, as compared with the time delivery could be obtained from the delinquent contractor;

• The degree of essentiality of the contractor in the property owner acquisition program and the effect of a termination for default on the contractor’s capability as a supplier under other contracts;

• The effect of a termination for default on the ability of the contractor to liquidate guaranteed loans, progress payments, or advance payments; and

• Any other pertinent facts and circumstances.

Failure to make timely delivery

It has long been held that time is of the essence in any construction contract specifying fixed dates for delivery or performance. Accordingly, if the contractor fails to perform within the time specified, or an extension thereof, the Default article authorizes the property owner to terminate the contract, in whole or in part, by written notice to the contractor. As a practical matter, the property owner should be lenient in granting reasonable extensions of time for contract performance because it is more interested in production than litigation. Nevertheless, it may terminate the contract immediately after the close of business on the exact date specified in the schedule.

In those instances where the contract requires delivery in increments, the entire contract can be terminated for default when the contractor fails to meet any incremental delivery schedule. Where the property owner is held to be estopped from terminating one or more increments for a delivery failure, it nonetheless retains the right to terminate subsequent increments for delivery failure since each delivery failure of later increments creates a new right in the property owner to terminate that increment or the entire remaining contract.

A material breach does not automatically and ipso facto end a contract. It merely gives the injured party the right to end the agreement. The injured party can choose between canceling the contract and continuing it. If he decides to close the contract and so conducts himself, both parties are relieved of their further obligations, and the injured party is entitled to damages to the end of the contract term. If he elects instead to continue the contract, the obligations of both parties remain in force, and the injured party may retain only a claim for damages for partial breach. A contract–and the property owner’s right to terminate–remains in effect, regardless of any prior breach by the property owner, where a contractor fails to put an end to the contract due to property owner’s breach before the property owner exercises its right to terminate.

Failure to meet specification requirements

In the absence of unusual facts or circumstances, the property owner has the right to demand strict compliance with all contract provisions. Where performance fails to conform to the contract’s specifications, this can be the basis for default termination, even if delivery is timely, since such failure constitutes nondelivery under the Default articles.

Under the doctrine of substantial compliance, the contractor may be entitled to relief even though the articles delivered did not conform precisely to the requirements of the specification. In order to obtain relief under the doctrine, the contractor must demonstrate in good faith that (1) the items shipped substantially compiled with the contract’s specifications, (2) the items were timely delivered, and (3) the contractor had reasonable cause to believe that the items were acceptable and the defects minor and correctable within a reasonable time. Once these conditions have been met, the contractor must be given a reasonable time within which to cure the defects, thereby precluding the issuance of a default termination even if the time extends beyond the original delivery date.

Waiver of Rights

If the property owner fails to exercise its right to terminate immediately upon a contractor’s failure to make timely delivery, it may have waived that right. It has often been said that the term “waiver” is a troublesome term in the law. It is a flexible word with no definite and rigid meaning, and since it may be used in many senses, it is often of equivocal significance. While the term has various meanings depending on the context, it is nevertheless capable of taking a very definite meaning from the context in which it appears. Waiver is generally defined as an intentional relinquishment of a known right. As minimum requirements to constitute an implied waiver of substantial rights, the conduct relied on must be clear, decisive, and unequivocal, showing a purpose to waive the legal rights involved before such conduct constitutes a waiver.

The determination as to what conduct constitutes an election or waiver is more conjectural than to prescribe the proper method of effecting a valid termination once the election has occurred. The necessary elements of an election by the nondefaulting party to waive default in delivery under a contract are (1) failure to terminate within a reasonable time after the default under circumstances indicating forbearance, and (2) reliance by the contractor on the failure to terminate and continued performance by him under the contract, with the property owner’s knowledge and implied or express consent.

What is a reasonable time for the property owner to terminate a contract after default depends on the circumstances of each case. Notice of failure or of the possibility of termination for default is not required to be sent to the contractor before the actual notice of termination when the contractor has defaulted for failure to make delivery implying that the property owner is required to issue a termination notice “at once.” The period for default termination will naturally be greater where the contractor abandons performance, or where his situation is such as to render performance impossible or unlikely, than where he continues performance in reliance on the lack of termination and proceeds to incur obligations in an effort to perform.

Time is of the essence in any contract containing fixed dates for performance. When a due date has passed and the contract has not been terminated for default within a reasonable time, the inference is created that time is no longer of the essence so long as the constructive election not to terminate continues and the contractor proceeds with performance. The proper way thereafter for time to again become of the essence is for the property owner to issue notice under the Default clause, setting a reasonable, but specific, time for performance on pain of default. The election to waive performance remains in force until the time specified in the notice, and, thereupon, time is reinstated as being of the essence. The notice must set a new time for performance that is both reasonable and specific from the standpoint of the performance capabilities of the contractor at the time the notice is given.

Failure to make progress

The property owner may also terminate a contract for default before the specified delivery date if the contractor fails to make progress so as to endanger performance of the contract. This remedy is based on the policy that the property owner should not be required to stand idly by awaiting nondelivery by a contractor who obviously cannot meet a required delivery or performance date. Rather, the property owner should have the option to terminate inadequate performance in order to obtain needed supplies or services from a more capable source.

Cure Notice Requirement

As a condition to a default termination for failure to make progress, the property is required to give the contractor written notice, specifying the performance failure and providing a time period in which to cure the failure. The cure notice must specify the progress failure in sufficient detail so as to enable the contractor to effectively utilize the opportunity to cure. Default terminations for failure to make progress have been frequently overturned on the basis that the notice to cure did not set forth performance defects with the particularity required of such a notice. On the other hand, the termination will not be defective if the contractor was actually aware of the basis for default. If the contractor was not misled by the lack of particularity in the notice, the courts will generally find that the notice was sufficient.

When deficiencies become the rule, necessitating corrections or deductions from the contract price virtually every day, overall performance of the contract can be deemed unsatisfactory even though individual problems are resolved. The repeated need for correction may itself serve as the default, making termination an appropriate remedy. It is entirely permissible for the property owner to make a tentative decision to terminate the contract before the expiration of the cure period, so long as the decision is subject to reconsideration if there are subsequent timely cure efforts. Similarly, there is no harm if a final decision to terminate is made before the expiration of the cure period if the contractor makes no further efforts to cure. But when an irrevocable decision to terminate is made before the end of the cure period and a contractor’s timely efforts to cure are ignored, the termination is improper.

Repudiation

A separate basis for default termination is repudiation, or anticipatory breach of contract. Repudiation, as defined by section 2-610 of the Uniform Commercial Code, centers on an overt communication of intention or an action that either renders performance impossible or demonstrates a clear determination not to continue with performance. A repudiation occurs when (1) the contractor, by a positive and unequivocal statement made before performance is due, indicates that he will not perform the contract according to its terms and conditions; or (2) the contractor, although willing to continue performance, admits that he is totally unable to perform. The hallmark of anticipatory repudiation is that there must be a definite and unequivocal manifestation of intention on the part of the repudiator that he will not render the promised performance when the time fixed for it in the contract arrives.

Always have your construction contracts prepared by an experienced Park City Utah real estate lawyer. The lawyer will ensure that your rights are protected.

Park City Utah Real Estate Lawyer Free Consultation

When you need legal help from a real estate lawyer in Park City Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

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What Is An Estate When You Die?

What Is An Estate When You Die?

After a person’s death, their money or property has to be handled by an executor or an administrator — in Utah we call them personal representatives. He or she is the person who is supposed to take care of the taxes and debts for the deceased person, and then distribute his or her money among the people entitled to it.

Therefore, an estate when someone dies is the property or money he or she leaves behind. Read on to get more answers on the questions you might be asking yourself concerning what an estate is when someone dies.

Who is an executor or administrator?

An executor is a person who deals with the deceased estate if he or she left a valid will. An administrator is a person who deals with the deceased estate if he or she left an invalid will or no will at all. An administrator can be chosen and appointed by the court before they take any move concerning the estate of the deceased person.

How do you access a deceased person’s estate?

In a situation where the deceased left a lot of money, property, or assets in their estate, the executor and the administrator are tasked with applying for a grant of representation to gain access to the money — the application for the award is usually made to the probate registry.
In a situation where the deceased left a valid will, the Probate Registry will grant probate of the will. On the other hand, if the deceased did not leave a valid will or failed to leave a will at all, the registry will give a grant of letters of administration.

What Is Estate Tax?

There are states which have to pay an estate or an inheritance tax. Either a part or the whole of it must be paid before the court decides to issue a Grant of Probate or letters of administration. The deceased may as well be owed a tax rebate or may be required to pay some tax.

As soon as the death occurs, you can contact Ascent Law who will give you information concerning the next steps that need to be taken and if there needs to be paid any type of estate tax and whether there is any need of filling a self-assessment tax return for the deceased.

What Is Property Of The Estate?

Property entails shares, antiques, and works of art, houses, jewelry, and general real estate. It can also include intangible property like copyrights and patents. In a situation where the deceased held their wealth in their sole name, and then they left a valid will dealing with the property, then the property will usually pass in line with the will. If the deceased left no valid will or a will that did not deal with the property, it is dealt with under the law of intestacy.

If the property of the deceased was held with other people, the executor or the administrator is needed to find out how the property was owned. If the property is a house, a written document should be present as proof about the ownership of the property. If the property of the deceased is sold at a gain, then a capital gains tax will be imposed if the profit gained is above the market value at the date the deceased died.

What About Jointly Owned Property?

In a case where the deceased owned property worth another person or with other people as beneficial joint tenants, the deceased person’s share goes to the joint owners who are alive by default. Any property possessed by joint owners does not become part of the deceased person’s estate upon their death. However, the value of the dead person’s share is usually part of the value of the estate for inheritance ta calculations.

In a case where the deceased owned the property with other people, his or her are of the property becomes [part of the estate and the executor handles it under their terms indicate in the will or as reported by the administrator as stated in the law of intestacy. Administering the estate is expected to be complicated and looking for independent legal advice is highly recommended.

In a case where the deceased was receiving any benefits, the social security agency should be notified as soon as possible. If the dead person was a blue badge holder, the badge should be taken back to the blue badge unit

Before distributing the estate, you have one year to sort it after the death of the property owner. After a year is passed, you can be held liable to account for any interest accrued on any undistributed assets. Remember that all the bills, taxes, and debts have to be settled before you get to share any property, belongings, or money which remain after the person’s death.

If the deceased left a small amount of money in their estate, you might not be necessitated to acquire a grant of probe or letters of administration to make withdrawals from the deceased’s account in the bank or any financial institution. This can be very useful if this money is required to pay for the funeral expense like a mortgage or house insurance.

Every bank or financial institution usually has a specific set of rules on the documents needed as proof so that the withdrawals can be made. They also have provisions to dictate the timeline in which the withdrawals should be made.

In a case where the deceased person had multiple bank accounts, each with a small amount of money, but exceeding the given limit, it may still be possible to acquire the funds without having to present letters of administration or probate. Every individual bank or financial institution will decide to release the funds or not release it to the person acting in the estate of the deceased.

If a bank or financial institution does not need you to have a grant, the acting person in the estate of the deceased may be necessary to sign an indemnity. This is purposed to protect the financial institution or the bank in case it later turns out that the money was paid to the wrong person.

What happens to your mortgage when you die?

According to the U.S Bureau of Labor Statistics, 30% of Americans aged between 65 and 74 years old still have a mortgage, and even some people who are 75 years and holder still have home debts. These numbers have increased since 2001. I will answer what happens to the property as well as the liability if it lands in the laps of the heirs.

Different scenarios may occur if you hold your home loan when you die. In case of sudden death or a foreseen death, there are various ways in which your death may catch your heirs. Here is a list of six scenarios

Your heirs may take over your loan

In most cases, federal law permits the transfer of the credit to a close relative or an heir once you die. In most of the home loans, there is a due-on-sale or acceleration clause that allows a lender to demand immediate and full payment upon transfer or sale of the home; however, removals due to death are exempt.

This is an indication that your heirs would have o take on your home loan with the same interest rate and the equal payment that you have. However, this does not just happen like that. There are legal procedures which have to be followed like filing a will or letters of administration on probate court.

Your heirs may refinance your home loan

If an heir decides to keep a home, in most situations, they will have to refinance the , especially if they are in a position to get a lower interest rate or reduced monthly payments. If the heirs are not financially stable to finance the new loan, they can always agree to pay every month and still keep the house.

You may make your relatives lucky if you have some estate. This estate may have enough funds to finance the mortgage or simply pay off the loan. You have to indicate in your will the assets that you possess and give directions on the way they can be sold to retire the mortgage. If you had a mortgage protection insurance policy, it would help a great deal by automatically paying off the loan balance. It is advised that you have the insurance policy if your relatives or the heirs are not financially stable enough to make the payments or afford a refinancing.

If the mortgage becomes too hard for your heirs to handle, they may decide to sell the home or walk away. And in most cases, heirs walk away when they cannot meet the burden. Mostly, the instances where the house is worth less than the balance on the mortgage, most heirs see walking away as the wisest decision. However, there are cases when there is a sentimental attachment between the heirs and the home. In such a scenario, you can always try to work out something with the lender and agree on new terms of payment. Some lenders may forgive some of the debts, but in rare cases.

A reverse mortgage is considered to be a lien to the home. When there is no co-borrower or the co-borrower is also dead or is no longer living in the home, the loan becomes due when the borrower dies. The heirs will only be able to inherit the house itself if the reverse mortgage balance can be paid off without having to sell the property. To achieve this, your heirs will be forced to pay off the balance together with the cash from the estate or another source or finally take out a new loan. The most expected outcome is that your heirs will inherit whatever equity is left after the home is sold and the lender gets paid.

It doesn’t matter what your heirs want to do with your home when you die. Even for the house that you have paid off and does not have a mortgage, it might be sold to pay off any other debts which you might have left behind. If the only significant asset you leave behind is a house, then some regions may require you to sell them off and pay off non-mortgage debts.
However, your heirs may avoid a forced sale by using their money to pay off any debts which you might have left behind, even though they may not be directly liable to what you owe unless you had cosigned with them. But all in all, the bills have to be paid. There is no shortcut to this, and any lender would want to see their bills settled.

Preparing for your death is not a fun thing. Even the thought itself scares yo off. However, it is in the best position that you make your relatives for life after your death. If you own property, assets of money, you will be in a good spot if you leave a directive on who should inherit it. However, that alone is not enough. You should make goodwill to pay off your debts if you had any so that your relatives will not be forced to stretch to their pockets to settle your debts. In case of any misunderstanding, an executor or administrator is a right person to handle your inheritance and distribute it well among your heirs to avoid scuffles.

An estate is a property you leave behind when you die. Ensure that you plan early enough for your relatives and loved ones. In case you have any debts, make it a point of giving directions on the clearance of the debt in a situation where you die. Plan early for your property and money.

Estate and Probate Attorneys in Utah Free Consultation

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Bankruptcy Lawyer Midvale Utah

The Utah bankruptcy process is complex. If you want to file for bankruptcy in Utah, seek the assistance of an experienced Utah bankruptcy attorney. If you have a lot of debts to pay off, use bankruptcy as the last option. Try and negotiate with your creditors. If the debt is backed by a collateral, surrender the collateral. If you have exhausted all your options, consider bankruptcy filing. An experienced Midvale Utah bankruptcy lawyer is the one you should talk to when you are considering bankruptcy.

The exact Utah bankruptcy process will depend on your chapter of filing. Individual debtors in Utah usually file for bankruptcy under Chapter 7 or 13. Individuals can also file under Chapter 12 but Chapter 12 is exclusively for discharging the debts of a family farmer or fisherman. The process involved in a Chapter 12 bankruptcy is more or less similar to a Chapter 13 process. An experienced Midvale Utah bankruptcy lawyer will review your circumstance and advise you on the chapter you should choose. Choosing the wrong chapter can have serious consequences. Don’t take chances.

Chapter 7 is by far the most popular bankruptcy for individuals. A Chapter 7 bankruptcy is often called liquidation because the Chapter 7 bankruptcy process is essentially a liquidation process.

Bankruptcy is a legal recognition that an individual or a business cannot pay its debts. There are many sections, or “Chapters,” of the bankruptcy code. These different Chapters try to deal with the different situations debtors find themselves in. The most commonly used Chapters of the bankruptcy code are Chapters 7, 11, and 13. Debtors, assisted by the courts, must decide which Chapter best addresses their situation. Speak to an experienced Midvale Utah bankruptcy lawyer before you decide on the Chapter.

Chapter 7 Bankruptcy

Chapter 7 bankruptcies apply to individuals. Under Chapter 7, all of the individual’s assets are “liquidated”–sold off–by the courts to pay creditors. To determine what assets the debtor owns, a complete list must be supplied to the federal bankruptcy court. In addition, a full accounting of all liabilities must be presented to the court. Once the assets have been liquidated, creditors start getting paid. First in line is the government! Payment of taxes gets the highest priority.

Some financial obligations must be paid even after a Chapter 7 bankruptcy is finalized, including alimony and student loans. Naturally, few creditors will ever see their money because of the sad condition of the debtor’s finances. And the debtor now has the bankruptcy recorded in his credit file, which means that the likelihood of receiving additional credit is slight–at least for the next ten years. In a Chapter 7 bankruptcy, the bankruptcy trustee who is appointed by the court will take over the assets of the debtor. The assets will then be liquidated and the creditors will be paid off from the amount recovered through liquidation. Some creditors may not be repaid in full. But the debt will be discharged and the debtor will no longer be responsible for that debt. An experienced Midvale Utah bankruptcy lawyer can help you file a Chapter 7 bankruptcy in Utah. Chapter 7 filing can be complex. There are many complex forms to be submitted to the court.

Chapter 11 Bankruptcy

Chapter 11 bankruptcies apply to businesses. By filing under Chapter 11, a business is allowed time to reorganize the firm, and is shielded from persistent creditors. The hope is that through reorganization, the firm can return to profitability and thereby repay some of its debts. While the firm continues with its day-to-day operations, the bankruptcy court reviews the firm’s financial condition, and hears from the firm’s creditors–who may ask the court to investigate the firm for mismanagement or other wrongdoing. The Chapter 11 court proceedings may take years to complete and, even if the firm’s reorganization efforts are successful, there is a distinct possibility that the firm will pay its creditors only a fraction of what is owed to them. Speak to an experienced Midvale Utah bankruptcy lawyer if you are considering a Chapter 11 bankruptcy in Utah.

Chapter 13 Bankruptcy

Chapter 13 bankruptcies apply to individuals who are not in the hopeless financial situation that individuals filing under Chapter 7 find themselves in. Under Chapter 13, debtors turn their finances over to the bankruptcy court. After examining the financial documents, the court decides how to deal with the situation. Often, the debtor’s debts are rescheduled so that a portion of the debt can be repaid over time. In addition, a bankruptcy trustee may be appointed to oversee the case for the next few years. It is also common for the debtor’s wages to be tapped by the court to help repay creditors. The benefit to the debtor is that most of his assets are protected under Chapter 13. But the bankruptcy is recorded, and the prospect of receiving future credit is slim for a decade or so. In a Chapter 7 bankruptcy, the debtor submits a repayment plan. This repayment plan is placed before the creditors. Once the creditors approve the plan, the debtor has to make payments according to the plan. Once all the payments are made, the debts are discharged. Speak to an experienced Midvale Utah bankruptcy lawyer to know if you are eligible to file a Chapter 13 bankruptcy in Utah.

Credit Repair

Bankruptcy can remain on your credit. This will make it difficult for you to get loans, mortgage and credit cards. You should work on improving your credit score once you are out of bankruptcy. Some debts cannot be discharged in bankruptcy. You will have to pay them. Speak to an experienced Utah bankruptcy lawyer to know which of your debts can be discharged by bankruptcy and which debts will survive your bankruptcy.

Improving Your Credit After Bankruptcy

You have to deal with old and existing debt before you can truly move on. A Chapter 7 takes only 90 -100 days to discharge. A Chapter 13 gives you a full discharge as well, although it does take longer, the average being 3-5 years. If you don’t have enough debt to file a bankruptcy, then an attorney can help settle debt so you can get on a sustainable track with an end in sight instead of one where you are robbing Peter to pay Paul all the time.
Even if you file bankruptcy, not all debts are dischargeable in bankruptcy and have to be dealt with after the bankruptcy. Some of the debts that commonly survive a bankruptcy include:

• Debts you reaffirmed (agreed to keep paying), such as your mortgage or car loan

• Back taxes that were not discharged in your Chapter 7 bankruptcy (usually those less than three years old).

• Student loans (federal or private)

• Alimony, child support

Student loans are exceptionally difficult to discharge in bankruptcy. There is a separate legal proceeding called an “adversary proceeding” that you must file in addition to the underlying bankruptcy to attempt to prove that an undue hardship exists to justify the elimination of your student loans. The standard to discharge student loans is quite high although sometimes bankruptcy will help reduce student loan debt. That being said, there are often solutions to reduce your student loan payments to something that is both affordable and sustainable with an end in sight. Endless forbearances are only putting off the problem, and in fact, making it much bigger later in life. Consult a qualified Midvale Utah bankruptcy attorney regarding these solutions as soon as you can. The sooner you create a plan to deal with your student loans, the quicker they will be in your rearview mirror.
If you have federal student loans, there are many excellent income based programs with debt forgiveness.

It’s important to seek the advice of a qualified student loan attorney because these programs are not “one size fits all,” and the servicer is not required to give you all of your options or help to identify which option is best for you. They are merely debt collectors. For private loans, we recommend negotiating a settlement to put an end to this debt once and for all. This can include payment plans, but will usually only be effective upon a default so they are willing to negotiate. Often private lenders have poor documentation and many defenses exist to repayment. Finally, these lenders commit frequent consumer law violations that can be used as leverage in a settlement by a knowledgeable Midvale Utah bankruptcy lawyer.

Building and Maintaining Good Credit

The best time to start building your credit is when you don’t need it, so there is time for the small incremental increases to build over time. People with no credit will build their score faster than someone with bad credit – but either way it will happen faster than you might think. Many debtors are able to get back to high 600s, low 700s within two years of filing a bankruptcy, sometimes earlier.

Can you Re-establish Credit After Bankruptcy?

It is actually easier to re-establish credit after a bankruptcy than it is for a person who has not filed bankruptcy and has poor credit. In a way, while a bankruptcy will cause your credit score to go down initially, it also provides a base from which it can go up. Bankruptcy does not automatically make you a bad credit risk. Provided the rest of your credit information is good, bankruptcy can actually make getting credit easier. Your debt to income ratios following a bankruptcy may be the best they have ever been. You cannot file another Chapter 7 bankruptcy for over eight years, so many creditors will view you as a good credit risk. You are likely much less of a credit risk than someone who has a lot of debt on their credit report and could file a Chapter 7 bankruptcy at any time. Some people will say to you that you should be debt-free and pay cash for everything. I take a slightly different approach. Credit is important, there are things that you ordinarily can’t just pay cash for, such as a car or home, for instance. That’s why it’s important to re-establish your credit so it is there when you are ready to use it again.

Most negative information more than seven years old must automatically be removed. There are four exceptions:

1. A Chapter 7 bankruptcy will remain for ten years.

2. A Chapter 13 bankruptcy will stay on for seven years from the date you complete your repayment plan (which generally lasts three to five years from the date of filing).

3. Tax liens, paid lawsuits and judgments stay on seven years from the date you paid them off.

4. Unpaid lawsuits or judgments stay on your credit report for seven years from the date they were entered or the time allowed by law for collecting the judgment, whichever is longer. This period of time varies from state to state, but it can be as long as 20 years.

Getting Rid of Credit Report Errors

If you see discharged accounts that are still reporting on your credit report, you can file a “Dispute” to update your credit report. You may see debts still listed as delinquent, under collection, or charged off – all of which are negative entries that will continue to adversely affect your credit. You would also need to send a request to the creditor to correct their records and provide the updated information to each credit bureau. Send any request to a creditor via certified mail, return receipt requested, to ensure you have proof of when you sent your request. You will need to update each credit report. Alternatively, there are credit repair organizations that will send disputes on your behalf. An experienced Midvale Utah bankruptcy lawyer works closely with local credit repair agencies and can recommend them to you. If the credit reports are not accurately updated after you have filed a dispute and notified the creditor, you may have a violation of the Fair Credit Reporting Act. It takes approximately 45 days for a credit inquiry to be processed.

Midvale Utah Bankruptcy Lawyer Free Consultation

When you need legal help to file a chapter 7, chapter 11, chapter 9, chapter 12 or chapter 13 bankruptcy in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.

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

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Which Is Better Divorce Or Separation?

Which Is Better Divorce Or Separation?

A legal separation does not put an end to the marriage; it enables you to live separately while remaining married. During the time you are living apart, you have a court order that outlines the rights and responsibilities of each spouse. Your legal separation agreement will cover all issues that would be covered in a final decree of divorce. If you have children how much child support you receive or pay will be documented. Custody will also be documented according to the agreement the spouses come up with together. You remain legally married while choosing to live separate lives. Issues that can be addressed in a separation agreement are the division of marital assets and debts, child custody and child support, visitation schedules and spousal support. The same issues addressed during the divorce process are also addressed in a separation agreement. A separation agreement can protect your interests until the decision is made to file for divorce. The separation agreement also sets precedence for the divorce that may follow.

If you divorce after a separation and your case goes to court, a judge is likely to assume that since you were satisfied with the separation agreement, the agreement should carry over to the divorce settlement agreement. For that reason, it is important that you come to a separation agreement you can live with long term. If, however, the terms of your separation agreement were not workable during the period of separation you can petition the court to draw up a new divorce settlement agreement. A legal separation agreement can be a learning tool to use to find out what you can and can’t live with after the divorce.

Advantages to Legal Separation

Although a legal separation and divorce have many things in common, there are some advantages to separating rather than divorcing. Those advantages include:

• It allows couples time apart, away from the conflict of the marriage to decide if divorce is what they truly want. A separation can be a cooling down period if there has been a lot of conflict in the marriage. It can also be a period of time when a couple can take advantage of couples counseling and finding new ways to handle conflict when it arises in the marriage.

• It allows for the retention of medical benefits and certain other benefits that divorce would bring to an end. Legal separation, unlike divorce, doesn’t leave one or both spouses without healthcare insurance. Legal separation may be a better option if a couple is struggling financially or if a woman has been out of the workforce for a long period of time. A period of separation will give a long-term stay-at-home mother the opportunity to become more financially stable while still able to enjoy the benefits of marriage.

• If your religious beliefs conflict with the idea of divorce, you are able to live separately and retain your marital status for religious beliefs.

• If you are a military spouse, you may wish to remain married for 10 years so that you can take advantage of benefits set up by the Uniformed Services Former Spouse Protection Act. Please be aware, though, that just as in civil cases judges have great discretion when it comes to splitting assets like retirement income during a military divorce.

• Remaining married for 10 years or more also means being able to take advantage of certain social security benefits for a spouse. If at retirement age your spouse will draw more social security than you, it is to your benefit to remain married for 10 years so you can draw a larger sum of social security by drawing on your spouse’s social security retirement.
• If the decision to divorce is made, the legal separation agreement can be converted into a divorce settlement agreement. This, after the decision to divorce, has been made will save the expense of a long and conflicted journey through the family court system.

Grounds For Divorce

Before filing for divorce, you should first consider the grounds for divorce, as these will need to be specified as part of the divorce process. Currently, the five possible grounds for divorce are: adultery, unreasonable behavior, desertion, living apart for more than two years (with agreement) and living apart for more than five years (without agreement). In practice, divorcing couples who both want to get divorced will often decide to choose the reason of ‘unreasonable behavior’ as a catch-all ground.
• Adultery: The ground of adultery can be used where your husband or wife has had sexual intercourse with someone else of the opposite sex (so if your husband had sex with a man this does not count as adultery). It must be actual sexual intercourse – not just a kiss or ‘heavy petting’. If you decide to file for divorce on grounds of adultery, you must do so within six months of discovering that your spouse cheated on you – although this time limit does not count if you have stopped living together. You can only use the ground of adultery if you are the ‘innocent’ party (i.e. your husband or wife slept with someone else not if you committed adultery). However, if you both had sexual relationships with other people, either husband or wife can file for divorce.

• Unreasonable behavior: There are essentially two distinct situations where the ground of unreasonable behavior is given in a divorce petition: firstly where unreasonable behavior has actually occurred and secondly where none of the other grounds for divorce apply (e.g. where husband and wife have simply drifted apart and no longer wish to remain married). Although unreasonable behavior can constitute serious accusations including domestic violence or drunkenness, it also encompasses rather vague issues such as lack of support in maintaining a household. In reality, there is a very low standard when it comes to unreasonable behavior, but some factual reason must be given and an incident of ‘unreasonable behavior’ must have occurred less than six months prior to filing for divorce. It should be noted that, if your husband or wife has become intimate with someone else but has not had sexual relations with them, although adultery cannot be given as a ground for divorce, unreasonable behavior can be used. Similarly, if your spouse has a sexual relationship with a member of the same sex, this does not count as adultery but can count as unreasonable behavior.

• Living apart for more than 2 Years (with agreement): If you and your spouse have lived apart for at least two years, and you both agree to get divorced, this ground can be used.

• Living apart for more than 5 Years (without agreement): If you have not been living with your husband or wife for at least five years, you can file for divorce on this ground, even if your spouse does not agree to divorce.
• Desertion: If your husband or wife left you, without your agreement or a good reason and with the intention of ending the relationship, it may be possible to use the ground of desertion when filing for divorce. They must have deserted you for over two years within the last two and a half years and you can have lived together for up to six months during this period. In practice, this is a rarely used ground.

There are key differences between a separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation and in a divorce, your marriage is dissolved. Other differences include:

• Health care/other benefits: Legal separation allows for the retention of health care and other benefits including certain social security benefits that terminate with a divorce.

• Marital status: Legal separation allows you to retain your marital status, meaning that you’re not free to marry another; once you’re divorced, you can remarry.

• Decision-making: Spouses are still considered next of kin and can still make medical or financial decisions for the other; divorced spouses aren’t considered next of kin.

• Debts/liabilities: Spouses may still be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process.

• Property rights: Legal separation preserves each spouse’s legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights.

• Remarriage/reconciliation: Divorce cannot be undone; reconciliation is easier with legal separation. With a divorce, you would have to remarry if you want a legal reunification.

Legal Separation vs. Divorce: Similarities

In both divorce proceedings and in the proceedings for legal separation, the court decides the following:

• Separation maintenance (a legal separation includes the equivalent to alimony and child support, but is distinguished from the effects of a divorce and is usually achieved through a “motion pending litigation”).

• Child custody

• Child visitation

• Property division (both legal separation and divorce property division is based on the couple’s situation and how it relates to the property)

Circumstances may arise that lead to couples living apart with no intent to continue the marriage. Additionally, some states have laws that require couples seeking to file a no-fault divorce to live apart for a designated period of time. Living separately can affect the property division. Property and debt acquired while living separately is classified differently depending on where the couple lives. Some states determine the property classification based on whether either spouse has the intent to end the marriage.

Trial Separation: Couples can also have a trial separation, but it has no real legal effect and is viewed only in terms of time in the couple’s marriage. Any property or debt acquired during a trial separation is still considered to be acquired during marriage and therefore, likely marital property.

Permanent Separation: Once a couple decides to separate for good, they have a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation in which one of the spouses has filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation as the separate property of that acquiring spouse. Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for family necessities, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the children’s care.

The factors that the court takes into consideration for permanent alimony/maintenance for the wife as follows:

• The status and position of the husband, his income, his assets and his lifestyle: The position and status have reference more to the financial than to the social position. Income and financial status are the most important factors while arriving at a justified amount to be awarded as alimony/maintenance.

• The reasonable wants of the wife: Want is not confined to what is required for keeping the claimant wife alive and providing for food only. When a minor child is living with the mother, the necessities of the child are also considered. Much emphasis is given on the reliefs prayed for by the wife by taking into consideration the status and station in life of the parties, the duration of the marriage, support and education of children, the ability of the spouse to earn and their future prospects, as also their age, health, liabilities, liabilities of the husband and the reasonable wants of the wife.

• The wife’s own income or earnings: The court will not only take into account the position of the husband but also the position and situation of the wife. In case the wife is working and drawing a handsome salary, the Court will certainly take that into consideration along with the husband’s income and then depending on the facts and circumstances of the case decide whether alimony/maintenance is to be awarded to the wife and if yes, then the amount she shall receive from the husband.
Usually, the husband is bound to maintain his wife till her lifetime. However, if the wife remarries, the husband is absolved of his responsibility and can petition the court for orders to stop the alimony.

Similarly, if there is a change in circumstances, that is, the husband is unable to maintain the wife due to a financial crisis or any other adverse situation and the wife is financially independent earning a decent salary, then the husband may petition to the court to address the changed circumstances.

The court may, taking into account the facts, evidences and circumstances prevailing at that point of time, modify, vary or rescind the order. If the spouse paying alimony/maintenance earns more income after the award for permanent alimony/maintenance has been passed in the case then the wife receiving alimony/maintenance may make a petition addressing the court about the increase in the husband’s income but she will have to prove her inability to maintain herself with the alimony already awarded by the court. The court may take into account the facts, evidences and circumstances prevailing at that point of time increase the alimony payable. However, just because his income goes up does not necessarily mean she will get more alimony.

Divorce and Separation Lawyer Free Consultation

When you need either a divorce or separation in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.

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West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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Some couples don’t recognize the legal and financial benefits that can accompany marriage. In contrast, marriage is financially unattractive for some couples. If the wife currently receives Social Security payments based on the earnings record of her late husband, in some circumstances, remarriage could cause the payments to end. If those Social Security payments are greater than anything the second husband can offer financially, the woman may prefer unmarried cohabitation to marriage.

Moreover, some committed cohabitants intentionally reject marriage to avoid its financial obligations. Some couples choose cohabitation over marriage to preserve their individual rights and benefits and to protect their assets for children from earlier marriages. For couples like these, cohabitation is not the result of an informal decision or something that just happened over time; instead, it is a deliberate choice to avoid marriage and its financial consequences. Emotionally, these couples may be just as committed as any married couple. They may have exchanged rings. They may put part of their assets in a shared bank account. Even so, they have chosen cohabitation as an alternative to—and not merely a substitute for—marriage.

If you want to choose cohabitation over marriage, speak to an experienced Orem Utah family lawyer to know your rights in Utah.

Is It Cohabitation or Marriage?

Determining whether a survivor was the decedent’s cohabitant is not simple. On rare occasions the law may conclude that someone who initially appears to be a surviving cohabitant is in fact a surviving spouse—or should be treated like a surviving spouse.

In a few states, a man and woman can become husband and wife even though they never participate in a legally valid marriage ceremony. The common-law marriage—long a source of intrigue and melodrama in books and movies—is not entirely a relic. If a surviving partner can prove her common-law marriage to the decedent, she becomes a surviving spouse and receives the full panoply of spousal property and probate benefits under state law. Among the common probate benefits are the right to an intestate share or an elective share. She receives statutory priority among the potential appointees as administrator for the decedent’s intestate estate. She also receives homestead and personal property exemptions as well as a family allowance. As an heir of the decedent, she has standing to contest his will if one exists. However, Utah does not recognize common law marriages. You have to petition the court to have your relationship recognized as a marriage. Seek the assistance of an experienced Orem Utah family lawyer to file this petition. If you don’t seek to have your common law marriage recognized in Utah, it will be legally treated as a cohabitation relationship.

The Cohabitant as Creditor or True Owner

Because cohabitation alone does not make the survivor part of the decedent’s family under probate law, the decedent can effectively disinherit the survivor. The survivor’s assertion that the decedent would have wanted her to receive part of his estate is likely to fall on deaf ears.

Sometimes, however, the survivor can assert a noninheritance claim against the estate. Perhaps she can prove that the decedent owed her money when he died. Perhaps she can show that she paid for assets titled in his name and that those assets rightfully belong to her.

Probably the most frequently asserted claim of the surviving cohabitant is that, prior to or during their cohabitation, she and the decedent entered into a contract whose terms entitle her to part of his estate. This claim is a variation of the “palimony” claim that one cohabitant occasionally asserts against the other when the couple splits during their lifetimes. While the cohabitation contract or agreement cannot make her an heir, it may entitle her to assert a creditor’s claim against the estate. In most states, the contract does not have to be in writing.

Not that long ago, the surviving cohabitant’s chance of success on the claim was slim, even if she could prove that the couple had entered into the contract and that the decedent had violated its terms. Why? Because courts often concluded that such an agreement was essentially a contract for sexual services out of marriage—an agreement so against public policy that we simply couldn’t enforce it! Today, the couple’s sexual relationship is less likely to spell doom for the survivor’s claim. If the survivor can prove that the couple entered into a contract for other, lawful services, that she performed her end of the bargain, and that the decedent or his estate has not compensated her as the contract requires, then she will often recover from the estate.

Will Contract

Another contract claim available to a surviving cohabitant arises when a decedent breaches a binding promise to will part or all of his estate to her. Again, the survivor must prove the existence of such a contract. Often state statutes require the survivor to show written evidence of the will contract. Under these statutes, the contract can be a separate document apart from the will or it can be made a part of the will. If the will indicates that the contract exists but does not spell out the contract terms explicitly, the claimant can still perhaps assert those terms.
If the statute requires written evidence and the survivor has none, in rare instances the court may allow the survivor to recover if she can demonstrate that her action or performance unequivocally refers to the existence of the contract. Moreover, a court may prevent or “estop” the decedent’s estate from denying the contract if strict adherence to a statutory writing requirement would defraud the survivor or unjustly enrich the decedent’s estate at the surviving cohabitant’s expense. The principal problem in these part performance or estoppel cases, however, is the claimant’s credibility: often she will be the only person who can testify concerning the purported contractual promises. The decedent, who is the other party to the alleged contract, cannot rise from his grave to confirm or deny the survivor’s assertions.

Sometimes the survivor cannot prove the existence of a will contract with the decedent, but her evidence clearly shows that she performed uncompensated services for him and expected to be remunerated. When this scenario exists, the survivor may receive an award in quantum meruit—that is, an award for the value of her services to the decedent. The quantum meruit award is a second-best award for the surviving cohabitant because it is typically far less than the amount she seeks under the purported contract. Although better than nothing, the award is still something of a slap in the survivor’s face, for it treats her as a mere employee or servant of the decedent. On the whole, probate courts are wary of a survivor’s claim concerning an oral will contract. In most such cases, the survivor has a difficult time persuading the court to apply part performance or estoppel principles in her favor. In some instances she will receive a minimal reimbursement for her services to the decedent.
To protect herself, the cohabitant who is a party to a will contract should make sure that she obtains the decedent’s promise of a legacy in writing.

Trial

In Utah, a cohabitation dispute trial begins with the opening statement of the side responsible for bringing the case to trial. The plaintiff is heard first. The defense then has the option of delivering its opening statement or waiting until after the prosecution or plaintiff has presented all of its evidence. Strategy issues relevant to opening statements include statement length, amount of detail, organization, whether to make concessions to the opposing side, and, for the defense, the timing of the statement.

Presentation of evidence occurs through the testimony of witnesses. Again, the prosecution or plaintiff always presents its evidence first. Following the direct examination of each witness, the opposing side has the opportunity to question, or cross-examine, the witness. Strategy issues relevant to the presentation of evidence include questioning style, degree of aggressiveness, especially during cross-examination, and proxemics, or interpersonal distance between the attorney and the witness during questioning.

The last phase of the trial is the closing argument. Like the opening statement, closing arguments are not evidence. However, they differ from the opening statements in that they are argumentative, characterized by attempts to persuade the court to reach a specific verdict. While attorneys are not free to introduce new facts or evidence during closings, they can, within limits, appeal to the emotions as they summarize key components of their case and retell the stories first constructed during openings. Trial strategies relevant to closing arguments focus on organization, content, and use of ingratiation strategies.

Opening Statements

Although attorneys will often begin their persuasive attempts during voir dire, the opening statement represents the first formal opportunity for them to make an uninterrupted presentation of their case.

The defense has the option of making its opening statement immediately following that of the prosecutor or plaintiff’s attorney, or waiting until after the prosecution or plaintiff has presented all of its evidence. Evidence is presented through the testimony of witnesses and demonstrative materials, such as courtroom reenactments, photographs, and videotapes. Although some have argued that a case is won or lost during opening statements, without the evidence to back it up, a good opening becomes little more than an empty promise. At the same time, it might be argued that this is the phase of the trial over which attorneys have the least control. The evidence is what it is. Attorneys must make the most of what is given to them.

During the evidence presentation phase of the trial, attorneys only really control a few things: the medium through and order in which the evidence is presented, the questions they ask, and the manner in which they ask them.

Direct Examination

Most of the evidence presented during a trial is delivered through witness testimony. Direct examination of a witness is conducted by the attorney who calls that witness to testify. Under most circumstances, this exchange will be friendly, characterized by the use of open-ended questions that allow the witness to simply tell his or her story.

Cross-Examination

Cross-examination involves an entirely different questioning strategy. While the direct examination of a witness is characterized by open-ended questions that allow the witness to fully develop and make clear for the jury his or her position, questions delivered during cross-examination tend to be closed-ended, often limiting the witness to a one- or two-word response. Goals of cross-examination occasionally do include clarification of direct testimony and acquisition of additional information that is helpful to one’s case. However, cross-examination is more often conducted with the goal of reducing the credibility of the witness and his or her testimony.

Closing Arguments

The closing argument represents the attorney’s final shot at persuading the jury. Like the opening statement, it is not evidence. However, unlike the opening, during closing arguments, attorneys are allowed some latitude to draw on emotion as they seek two primary goals: to clarify the evidence and to persuade jurors to their side

Probate laws do not permit courts to infer from cohabitation that the couple was an economic partnership, or that the survivor was a member of the decedent’s family. Cohabitation alone does not permit the surviving cohabitant to claim a temporary allowance from the estate immediately following the decedent’s death. Moreover, only rarely will the survivor be able to obtain part of the decedent’s estate through contractual or equitable principles. Thus, while the stigma once attached to nonmarital cohabitation has largely disappeared in modern society, flouting the social convention of marriage still exacts a very high price from many cohabitants.

The message is clear: excluded from the default rules of traditional inheritance law, cohabiting couples should take affirmative steps to protect themselves from disinheritance by each other. If you are entering into a cohabitation or you are in a cohabitation relationship and your partner has passed away, speak to an experienced Orem Utah family lawyer to know your rights.

Orem Utah Family Law Attorney Free Consultation

When you need a family law lawyer in Orem Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with divorce, child custody, adoption, guardianships and much more.

Ascent Law LLC
8833 S. Redwood Road, Suite C
<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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