Wednesday, October 31, 2018

Child Custody for Babys

Child Custody for Babys

Resolving child custody and visitation issues is often a complicated process fraught with emotion, and perhaps never more so when a baby or an infant is involved. While the “best interests of the child” is the standard typically applied by judges in awarding custody, it may be less clear with infants who can and should be caring for them.

The ability to attach and bond to a caregiver is an important developmental milestone for babies that can affect their mental health for the rest of their lives. While mothers were once traditionally considered the best de facto caregivers, this has changed in recent years. Some states award custody on specific factors, while other states allow judges a wide berth in determining the crucial elements in determining custody.

For infants, this might include a mother who is breastfeeding or whether or not a parent can spend a generous amount a time with the baby. Fathers who can show that they have consistently cared for the infant may receive greater consideration than those with less involvement in their child’s life.

Demonstrating caregiving capability is essential in Child Custody Cases

Even if both parents can demonstrate that they have competently cared for an infant — including handling overnight care on a regular basis — judges may award custody based on the special needs of infants to have predictable schedules. Another consideration is ensuring that both parents have the necessary access and time to each bond with an infant, which may necessitate a schedule of visitation that alternates daily, or arranging for the child to be seen by a parent during the daytime even if it coincides with another parent’s primary parenting time.

Proposed Changes to State Custody Laws Strengthen Fathers’ Rights

For many years, fathers have argued for more parity in custody arrangements. But instead of making their case to a judge, they are now helping promote bills that would alter state laws pertaining to custody arrangements.

As recently reported by the Wall Street Journal, 20 states are currently considering legislation regarding shared parenting. The proposals call for judges to “maximize” time spent with each parent. In Utah and Washington State, the proposed law requires equal time among parents unless a judge deems it in the best interest of the child to rule otherwise.

Opponents of the bill are concerned that limiting the discretion of judges may not end up actually reflecting the true parenting needs of the child, which can be difficult to ascertain. Advocates worry that this will provide undue advantage to fathers who have been physically or emotionally abusive if a de facto time split is implemented. Additionally, they suggest that the laws primarily affect cases where parents are particularly hostile to one another and unable to sustain cooperative agreements without court intervention.

Those favoring the legislation point to studies that indicate that shared parenting responsibilities have been demonstrated to improve outcomes for children. They argue that without more time with their children they are not able to actually parent and supply those benefits two-parent children enjoy.

Although it is unlikely that all 20 bills will pass, advocates are hoping that passage of even just a handful of bills can be leveraged to continue promoting a movement toward shared parenting and more significant parental rights for fathers.

Free Consultation with a Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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When Do You Have to Go Through Probate?

When Do You Have to Go Through Probate

Leaving a will behind when you die is the responsible thing to do. But leaving a will, doesn’t always mean that there’s no need for probate. An estate may undergo formal probate for many reasons including when a will is contested, unclear, or invalid, or when the assets are held only in the deceased’s name. And when there’s no will, probate is often required to oversee the distribution of the deceased’s property.

As a general rule, you’ll want to avoid probate if possible. Unfortunately, there are situations where you don’t have a choice. Let’s explore those situations that determine when you have to go through probate.

When There’s A Will There’s Usually Probate

Determining if a will needs to go through probate depends on the laws of your state and the property you hold at death. Some states, such as Washington, do not require probate to be filed. Other states base the need for probate on the value of the estate. Common situation when you have to go through probate with a will include:

  • Will Contest: Disputes can arise because family members are unhappy with the deceased’s estate plan. Death can cause old family tensions to resurface causing disputes over insignificant family property. A beneficiary may contest the validity of a will’s construction. If someone who could take under the will protests the division of property, you must probate the will. All challenges are handled in probate court.
  • Value of the Estate: Smaller is better when it comes to probate. It’s common practice to allow estates falling below a predetermined value to avoid probate. In California, estates valued over $150,000, and that don’t qualify for any exemptions, must go to probate. In Oklahoma, a probate is required on an estate valued over $20,000.
  • Assets Held Only in Deceased’s Name: Probate is not just about distributing property. It also initiates the legal transfer of title to that property. If a person dies and owns real estate, regardless of value, either in his/her name alone or as a “tenant in common” with another, a probate proceeding is typically required to transfer the property. However, many states offer a quicker, less expensive probate-alternatives for transferring title to cars.

When There’s No Will You Really Need Probate

When a person dies without a will, they are said to have died “intestate”. The laws of the state where you reside will determine how your property is distributed upon your death. However, probate administration when there’s no will is similar to when there is one. When you die, your property is classified as either probate property or non-probate property.

  • Determining the Estate’s Heirs: If no Will exists, the property is divided among the person’s heirs. In California, if the person has a spouse and or children, the property first goes to them. If there is no spouse or children, the property goes to the person’s next nearest relatives. The laws of intestate succession are very state specific.
  • Transfer of Assets: When there is no will, probate is frequently required to determine the deceased owner’s probate assets, assess their value and distribute them to creditors and heirs. It’s not uncommon for property transferred under intestacy to be counter to what the deceased would have chosen if living. Probate transfer title to the heirs with the closest family relationship to the deceased. Special provisions, such as the small estate exemption, also apply to an estate without will.

Free Consultation with a Probate Lawyer

If you are here, you probably have a probate issue you need help with, call Ascent Law for your free probate consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, October 30, 2018

At What Time of Year is Divorce Most Likely?

At What Time of Year is Divorce Most Likely

A recent study of divorce filings in Utah indicates there are two particular months out of the year at which divorce filings peak: March and August. But January and February are also higher than normal.

Researchers have presented a number of hypotheses as to why people are more likely to get divorced in these months. The most commonly accepted reason is that these months typically come after winter or summer holidays. Many couples might hope the holiday season in the winter or a big summer vacation will mend their relationship and allow them to get “back to normal,” but this mindset tends to lead to disappointment. Divorce is sometimes the logical next step.

In the study, researchers examined divorce filings in Washington between 2001 and 2015. filings steadily increased by about 33 percent from December to March. In Salt Lake County, for example, there was an average of 430 filings each December, with that number jumping to an average of 520 in March.  In Utah, in 2018, there are literally thousands of cases that have been filed.  In the Third District Court, there has been more than 6,000 family law cases.

The general consensus is that people make the decision to get divorced around the holidays in December and January, but then wait a couple of months to get their finances in order and consult a family law attorney before formally moving ahead. This would explain why the peak falls in March, rather than in January or December.

Researchers also noticed a spike of divorce filings in the month August. Researchers suspect that couples may be waiting until after their family vacations are over, or that they may wish to get the process started before their kids go back to school.

All of these seasonal divorce filing patterns were consistent with research performed in other states, and so these trends may very well be present nationwide.

Free Consultation with Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Employer Responsibilities for Worker’s Compensation

Employer Responsibilities for Worker's Compensation

In most states, including Utah, employers are required to purchase insurance for their employees from a workers’ compensation insurance carrier. In some states, larger employers who are clearly solvent are allowed to self-insure, or act as their own insurance companies, while smaller companies (with fewer than three or four employees) are not required to carry workers’ compensation insurance at all. When a worker is injured, his or her claim is filed with the insurance company, or self-insuring employer, who pays medical and disability benefits according to a state-approved formula.

Unless they fall within limited, exempt categories, employers without workers’ compensation insurance are subject to fines, criminal prosecution, and civil liability.

Penalties for Not Having Worker’s Comp

Failure to provide workers’ compensation insurance coverage can result in:

  • Fines;
  • Criminal prosecution;
  • Personal liability of the employer for any workers’ compensation benefits due injured workers; and,
  • An employee’s exercising the option to sue the employer rather than file a compensation claim.

Duties of Employers

In addition to providing workers’ compensation coverage, in most states, employers must perform some, if not all, of the following duties:

  • Post a notice of compliance with workers’ compensation laws in a conspicuous place at each job site;
  • Provide immediate emergency medical treatment for employees who sustain on-the-job injuries;
  • Furnish further medical attention if an injured worker is unable to select a doctor or advises the employer in writing of a desire not to do so;
  • Complete a report of the injury and mail it to the nearest workers’ compensation board office. A copy of the report should also be mailed to the employer’s insurance company. An employer who refuses or neglects to make an injury report may be guilty of a misdemeanor, punishable by a fine;
  • Make a written report of every accident resulting in personal injury that causes a loss of time from regular duties beyond the working day or shift on which the accident occurred or that requires medical treatment beyond first aid or more than two treatments by a doctor or persons rendering first aid;
  • Comply with all requests for further information regarding injured workers by the workers’ compensation board or the insurance company, such as statements of the employee’s earnings before and after the accident, reports of the date of the employee’s return to work, or other reports that may be required to determine the employee’s work status following the injury.

Employer’s Duty Not to Retaliate

Employers often appear to frown on employees who file workers’ compensation benefit claims, and some blatantly discriminate against such employees.  To protect employees from employers who discriminate against, harass, or unjustly terminate injured employees, many states prohibit employers from punishing, discriminating against, or discharging employees who exercise their rights under workers’ compensation laws, and allow employees to bring civil actions against their employers for the tort of “retaliatory discharge.”

If an employee believes he or she has been discriminated against or discharged in retaliation for exercising rights under workers’ compensation laws, he or she may have a claim against his or her employer for retaliatory discharge.

Besides termination, retaliation may take the form of more subtle types of discriminatory treatment, such as demotion or salary reduction. Injured employees are protected from discriminatory conduct immediately after an injury and before a formal workers’ compensation claim is filed. An employee’s cause of action may be successful even though all the employee did was give notice to the employer of a claim.

Free Consultation with a Utah Employer Lawyer

If you are here, you probably have a business law or employment law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We help businesses and business owner navigate the law. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, October 29, 2018

Can I Write My Own Divorce Settlement?

Can I Write My Own Divorce Settlement

In many situations, divorcing couples can reach agreements outside of court and resolve their issues without much need for mediation.

The answer to the question, can I write my own divorce settlement is yes, of course you can.  The problem is that if you do, you might forget something.  Or you may word it in such a way that has a different legal meaning than a common meaning.  Also, the court may reject it because its not done the way the court wants to see it done.  For this and many other reasons, you shouldn’t ever do it.

You do have the legal ability to write your own divorce settlement, but it is almost never advisable to do so. Many issues related to your divorce require a high level of knowledge about the practice area, which only an experienced family law attorney will have. Even if you do not retain an attorney for the entire divorce process, you should at the very least work with a lawyer to draft your divorce settlement agreement.

The forms you need to fill out

There are many divorce settlement forms you can find online, some of which will be adequate for your case, others of which will not. An attorney will be best positioned to determine which forms you need to fill out and what you need to include in them.

Settlement preparation

Before you begin the process of negotiating a settlement with your spouse, you need to be fully armed with all the pertinent facts surrounding your divorce, including a full list of assets and values, income and debt information and anything else that is financially relevant.

You will be much better prepared for the settlement process if you work with an attorney who has experience in handling divorce negotiations. The attorney will know exactly what information you need to gather, what types of initial offers are reasonable and how much you should be willing to compromise or negotiate from that initial offer. Without the assistance of an attorney, you risk ending up with a bad deal.

Written agreements

Once the time comes to write your settlement agreement, you could end up leaving legal loopholes in the document if you do not have the expertise needed to create a thorough agreement. Attorneys are highly skilled in creating these written agreements that capture all the most important details and do not leave anything up for debate.

Getting Through the Holidays as a Divorced Parent

Getting through the holidays as a divorced parent with children can be a struggle. However, if you can find the right balance in everything you do, this time of the year does not need to be so stressful. Below are a few tips to help you through the holidays:

  • Prepare for the challenge: Accept that it may be difficult to deal with the challenges of the holiday season, especially if you’ll be without your children for a few days. Getting yourself emotionally prepared ahead of time can help you stay collected when the holidays arrive.
  • Acknowledge your kids’ feelings: You are not the only one who is dealing with the emotional challenges of dividing time over the holidays. Your children are likely to have complicated emotions, as well. Have conversations with them ahead of time so they know what to expect over the holidays. Honestly answer any questions they have.
  • Be flexible: When dealing with the other parent, put your emotions aside as much as possible to find timesharing agreements that work for the two of you and are in the best interests of your kids.
  • Budget: You and the other parent should agree on a budget for holiday spending. Getting into a situation in which you are each trying to “outdo” the other in terms of gifts is unfair — especially to the children.
  • Establish new traditions: Although you can attempt to maintain old traditions as much as possible, it can be a lot of fun to find new ways to celebrate that will stand the test of time.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

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

Military Leave Law

The Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) provides job protection to workers who serve in the military, typically those in the National Guard or military reserves. More specifically, USERRA prohibits employers from engaging in discriminating acts against employees who serve in the military and provides eligible service members with job reinstatement rights upon completion of military service. The law applies to all employers, but does not require the employer to pay the employee during military leave.

Military Leave Eligibility

The right to reinstatement in a civilian job applies to individuals who voluntarily or involuntarily serve in the military, or who have served in the military. All employers are required to comply with the law, regardless of size. USERRA benefits apply to the following type of uniformed service:

  • Active duty, including Reserve and National Guard duty
  • Active duty for training
  • Initial active duty for training
  • Inactive duty for training
  • Full-time National Guard duty

Reemployment Eligibility

When a service member returns from military leave, the guarantee of reemployment in a civilian job applies if:

  • The employee gave the employer advanced written or verbal notice of military service or training
  • The employee’s cumulative military leave does not exceed 5 years
  • The employee was discharged under honorable conditions
  • The employee applied for reemployment within the specified time

The USERRA provides exceptions to the five-year limitation when certain situations apply. For instance, this limitation is inapplicable when the service member is unable to obtain a release from service, must participate in necessary training, or the service occurs during a time of war or a national emergency. Also, employers are required to make every effort to provide reasonable accommodations for military service members with disabilities.

There are limited instances where an employer is not required to rehire a military service member returning from active duty. These include the following:

  • Changes in the workplace make it impossible (or nearly so) to reinstate the employee
  • Reinstatement would create an undue hardship for the employer (in the context of a disability, this could be the unavailability of a reasonable accommodation)
  • Employment of service member was so brief that there should be no reasonable expectation to return

Military Leave Benefits

The law protects a service member’s job status, pay, and benefits as if he or she was not away at active duty. For example, the service member who leaves for six months of active duty should get the same pay raise as his or her non-military peers (assuming performance levels and seniority are equal). Upon reemployment, the employer must:

  • Count the employee’s military leave toward seniority status: The service member is entitled to increased pay, promotions, benefits, and pension vesting as if continuously employed.
  • Provide training: If the employee is not qualified for the reinstatement position, the employer must make “reasonable efforts” to qualify the employee.
  • Not discharge the employee without cause: The law prohibits an employer from discharging an employee for 180 days if service was for 31 to 180 days or for one year if service exceeded 180 days.
  • Offer immediate reinstatement of health insurance coverage: The employer cannot impose a waiting period on health insurance coverage for the employee and the previously covered dependents of the employee.

State Military Leave Protection

Many states have military leave laws that protect workers that serve in a state militia, the National Guard, or as a reservist. Laws vary by state, but most prohibit discrimination against employees that serve in the military and entitle the worker to unpaid leave. Laws typically also provide reinstatement rights and protect the worker’s benefits. For example, Washington state law prohibits employers from denying employment, reemployment (after taking a leave for active duty service) or employment benefits to servicemembers because of their military association and obligations.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Sunday, October 28, 2018

Splitting Up After a Long-Term Marriage

Splitting Up After a Long-Term Marriage

In 2010, former Vice President Al Gore and his wife, Tipper, announced their separation. By all outward appearances, the couple was happy and comfortable, and the announcement came as a shock even to close friends. Many asked why they were separating.

As a firm dedicated to the practice of divorce and family law, we hear and understand the reasons men and women of all ages, in marriages of all lengths, decide to divorce. For long-term, stable couples, divorce oftentimes brings few fireworks, no accusations and oftentimes no infidelity. What contributes to the demise of a long-term marriage?

Consider this:

  • Al and Tipper Gore separated after 40 years of marriage. They raised children, sought and found adventure, and following a process of long and careful consideration, they decided to separate. From their statements, it seems clear they still love each other as friends, but chose to pursue their lives separately.
  • While the end of a long marriage can come rudely, it may also come as an emotional relief. As people live longer and healthier lives, fewer people are willing to accept an empty marriage that lost its love and intimacy long ago. In a recent paper from Bowling Green State University, researchers found the divorce rate for those over 50 has doubled between 1990 and 2010.
  • Divorce after decades means careful consideration about wealth, and often retirement monies as well. While two people can live together less expensively than two can separately, more women and men are choosing to go it alone, understanding the financial difficulties and potentially lowered quality of life that may follow.

By all accounts, the Gores remain happy with their decision and the new opportunities pursued by each party. While causes of divorce are many, changes in time and relationship often spell the end of a marriage.  If you’ve been in a long-term marriage and it’s time to put an end to this chapter in your life, give Ascent Law a call for help.  We’ll help you navigate through this.

False Accusations of Abuse During Divorce

In some particularly contentious divorces, it is all too common for one spouse to make false allegations of abuse in order to gain an upper hand. The presence of abuse by one spouse can have a huge impact on divorce litigation, especially insofar as determining custody of minor children, and can lead to criminal charges in some cases.

While wise Utah divorce lawyers strive to keep discord to a minimum when negotiating a divorce, allegations of abuse change the entire character of the process. Abuse allegations can be very difficult to conclusively disprove and, as a result, often make divorce litigation unavoidable.

If you are involved in a divorce and your spouse has turned to false accusations of abuse, you need to act quickly to prove your innocence. Our experienced divorce lawyers in Utah have seen nearly everything that can happen during the divorce process. We have the investigation and litigation skills to deal with false accusations of abuse and are prepared to handle anything your spouse can throw at you.

We understand that it is important to confront allegations of abuse immediately. Experience has taught us that negotiations may still be salvageable if we can disprove allegations early.

It is much more common, however, for such allegations to signal the end of any chance at a peaceful resolution. That is why we are always prepared to go to trial if necessary to defend the reputations of our clients and their rights to their children and property.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

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

Wills

Welcome to the Wills section where you’ll find resources covering how to prepare a will, how to amend or revoke an existing one, the benefits and limitations of wills, and more. Other topics include an overview of inheritance law, information about challenging a will, a discussion of living wills, and a list of important factors for married couples to consider. Wills are a part of Probate Law in the State of Utah.

The Basics of Wills

Wills are perhaps the most common and well-known form of estate plan. A valid will allows a person to designate how his or her estate is distributed and otherwise managed upon his or her death. In most circumstances, a person who creates a will can feel secure in knowing that the will’s instructions will be honored. On the other hand, a person who passes away without a will runs the risk of a court or other estate administrator making decisions that do not reflect the person’s wishes and intentions. Unfortunately, the failure to create a will can lead to disputes between family members, and even to expensive lawsuits and the ruining of relationships.

First Thing in a Will

One of the most important decisions that comes with creating a will is deciding on a competent and trusted executor. This is the person that will carry out the instructions contained in your will. Of course, you’ll also need to create a list of beneficiaries, and it’s important that you begin to learn about estate tax laws, to minimize the taxes that you and/or your heirs pay.

What Makes a Will Legally Valid?

Estate planning laws vary by state, so it’s best to consult with an attorney if you have specific questions about your state’s laws. Generally speaking, a person must have been of “sound mind” when he or she created the will. This means that he or she understood the effects and consequences of the will, and that he or she was not coerced or otherwise manipulated into signing it. Typically, at least one witness is required to verify the will, and it’s best that this person be someone who doesn’t stand to benefit from the will. Although wills are usually made in writing, oral wills can be valid, and recently, electronic wills have been upheld in some courts.

Will Limitations

A will cannot violate state or other laws. As an example, a person cannot circumvent a state’s community-property marriage laws by asserting in a will that his or her spouse is entitled to no property. Also, note that some states have passed heirship laws that require, for example, children to be listed as heirs in a decedent’s will. A will that breaches heirship laws will likely not stand up in court, and the decedent may be considered intestate.

How We Can Help

An estate planning lawyer can answer your questions about wills and other estate plans. He or she can also explain applicable estate laws to you and help you to create a will that fits your needs and reflects your intentions. This section provides a link for consulting with an experienced estate planning attorney in your area.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Saturday, October 27, 2018

How Child Custody Decisions Are Made

How Child Custody Decisions Are Made

In any situation where child custody rights are at issue, a number of key questions are raised. If you are going through a divorce, you will want to know whether your child will live primarily with you, and if not, whether will you will be able to make important decisions as to how your child will be raised. If you are a close relative or family friend of a child who is not your own, you may be wondering if getting custody of that child is even a possibility.

Answers to these questions are at the root of most custody situations, but for parents and others without significant experience with child custody and the legal system, a fundamental concern is: How are custody decisions made? Following is a brief discussion in response to that question.

Divorce and Child Custody Decisions

If you are a parent considering divorce, or if you are already involved in the process, you are probably wondering how child custody and visitation issues are resolved in a divorce. In general, like all aspects of a divorce — including property division, child support, financial division, and spousal support (alimony) — child custody and visitation will either be decided by agreement between the divorcing couple (usually with the help of attorneys and mediators) or by the court. More specifically, custody and visitation decisions are typically resolved in one of two main ways in a divorce:

  1. Parents reach an agreement on child custody and visitation, as a result of:
    • Informal settlement negotiations (usually with the help of attorneys); or
    • Out-of-court alternative dispute resolution proceedings like mediation or “collaborative law” (usually with the help of attorneys).
  1. Court makes a decision on child custody and visitation (usually a family court judge).

 

Unmarried Parents and Child Custody Decisions

When a child’s parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he can take steps to secure some form of custody and visitation rights.

For unmarried parents involved in a custody dispute, options for the custody decision are largely the same as those for divorcing couples — child custody and visitation will be resolved either through agreement between the child’s parents, or by a family court judge’s decision. But, unlike divorcing couples, unmarried parents will not need to resolve any potentially complicated (and contentious) divorce-related issues such as division of property and payment of spousal support, so the decision-making process is focused almost exclusively on child custody. For this reason, resolution of custody and visitation may be more simplified for unmarried parents.

If unmarried parents do not reach a child custody and visitation agreement out-of-court, the matter will go before a family court judge for resolution.

Especially when making child custody decisions involving unmarried parents, the family court’s primary consideration will be to identify the child’s “primary caretaker.”

Non-Parental Child Custody Decisions

In some cases, people other than a child’s parents may wish to obtain custody — including relatives like grandparents, aunts, uncles, and close family friends. Some states label such a situation as “non-parental” or “third-party” custody. (Note: Other states refer to the third-party’s goal in these situations as obtaining “guardianship” of the child, rather than custody.)

Whatever the label, most states have specific procedures that must be followed by people seeking non-parental custody. The process usually begins when the person seeking custody files a document called a “non-parental custody petition” (or similarly-titled petition) with the court, which sets out the person’s relationship to the child, the status of the child’s parents (living, dead, whereabouts unknown), and the reasons the person is seeking (and should be granted) custody. Usually, a copy of this petition must also be delivered to the child’s parents, if they are living and their whereabouts are known.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

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

Securities Law

Most small businesses will work with banks at some point in their existence, often for loans but also for initial public offerings or other large transactions. If you want your business to sell stocks, it’s important to become familiar with federal and state securities laws. Securities laws provide a strict set of rules and procedures related to selling shares of stock to the public, and require strict compliance.

What Is Insider Trading?

Insider trading is a type of securities fraud, which is a white collar crime. Basically, insider trading occurs when an “insider” uses confidential information (that is not yet available to the public) to make decisions about buying or selling stocks. An insider refers to anyone who has confidential information about the finances of a corporation. Examples of insiders include high-level employees, such as a Chief Executive Officer (CEO) or a member of the board of directors, and people employed in a corporation’s finance department. Even a family member of an employee with confidential financial information can be considered an insider.

If a person is an insider, it’s important that he or she avoids certain actions and exercises caution when buying or selling stocks. Anyone with inside information should never trade securities based on that information, nor should they share that information with anyone. A person with inside information should keep up to date with all trading laws and the corporation’s policies that apply to a person in his or her position. Finally, if you have doubts or questions about whether your actions could be considered insider trading, you should consult with the corporation’s attorney.

 

What Are Blue Sky Laws?

Blue sky laws refer to the securities laws that are enacted by each state, which are intended to protect society from fraud. These laws work in conjunction with federal securities laws, and cover at least merit review and disclosure. A merit review is a way to regulate disclosure and the fairness of the securities offering to investors. Disclosure laws typically require corporations to fairly and fully disclose all material facts related to an offering. It’s important to note that while securities statutes and regulations may be identical in many states, the interpretation may differ from state to state.

This is the Process of Going Public

The process of taking a company public presents unique challenges best faced with the assistance of an experienced team. A crucial member of that team is an experienced securities lawyer. Each member of the team has key responsibilities to fulfill in guiding the company through the following process.

The Securities Law Process

  1. Board approval. The initial public offering (IPO) process begins with a proposal to the company’s board of directors by management of the company. Management presents and discusses in detail the company’s past performance, objectives, business plan, and financial projections. Management then proposes that the company enter the public market. After carefully considering the benefits and detriments of going public, the board of directors makes a decision as to whether the IPO should go forward.
  2. Assembling the team. Upon board approval, management of the company should begin the process of assembling the IPO team. In particular, a securities lawyer and an accounting firm should be retained as soon as possible.
  3. Reviewing and restating the financials. If the board of directors approves the proposal to go public, the company’s financial statements for the preceding five years should be carefully reviewed and, if necessary, restated to comply with Generally Accepted Accounting Principles (GAAP). Certain transactions that are ethical and legally permissible for private companies, such as certain sale-leaseback arrangements, must be eliminated and the financial statements appropriately adjusted. The accounting firm normally assists with the review of the financial statements and the making of appropriate adjustments.
  4. Letter of intent with investment bank. The company should at this point select an investment bank and formalize its arrangement with the investment bank pursuant to a “letter of intent” outlining the investment bank’s fees, the size of the offering, the price ranges and other parameters.
  5. Drafting the prospectus. After the letter of intent is signed, the securities lawyers and accountants begin the process of preparing the prospectus. A prospectus is a written document prepared for presentation to investors as both a selling document and as a legal disclosure document. The prospectus is required to contain the following information:
  • A description of the business;
  • A description of the management structure;
  • Disclosure of management compensation;
  • Disclosure of transactions between the company and management;
  • Names and shareholdings of principal shareholders;
  • Audited financial statements;
  • A discussion of the company’s operations and financial condition;
  • Information on the intended use of the proceeds of the offering;
  • A discussion of the effect of dilution on existing shares;
  • A description of the company’s dividend policy;
  • A description of the company’s capitalization;
  • A description of the underwriting agreement.

Usually the lawyers draft the narrative part of the prospectus and the accountants prepare financial statements.

  1. Due diligence. The company’s investment bank and accountants will perform a detailed “due diligence investigation” of the company. They will examine the company’s management, operations, financial condition, competitive position, performance, and business objectives and plan. Information regarding the company’s labor force, suppliers, customers, and industry will also be reviewed. It is likely that information discovered in the due diligence investigation will result in changes being made to the prospectus.
  2. Presenting the preliminary prospectus to the SEC. The preliminary prospectus must be presented to the SEC and the relevant stock market regulators. Approval of state securities commissions may also be required. The SEC usually provides its comments regarding the prospectus, normally in the form of requirements for additional disclosure or explanation, in one to four weeks.
  3. Syndication. After the preliminary prospectus has been prepared and filed with the SEC, the investment bank should assemble a “syndicate” consisting of other investment banks who will attempt to sell portions of the offering to investors. The assembly of the syndicate often generates useful information as to the market for the shares and helps to narrow the share price range.
  4. Road show. Company management and the investment banker often perform a series of meetings with potential investors and analysts. The road show is a formal presentation by management of the company’s financial condition, operations, performance, markets, and products or services. The potential investors and analysts are then permitted to “kick the tires” by asking questions about the company.
  5. Finalizing the prospectus. The prospectus must be revised in accordance with the comments of the SEC and the relevant stock market. When the SEC declares the registration effective, the company can “go to print” with the prospectus.
  6. Pricing the offering and determining the offering size. On the day before the registration becomes effective and sale commences the offering is priced. The investment banker should recommend a price for the company’s approval, taking into account the company’s performance, the stock price of competitive companies, the success of the road show, and general market and industry conditions. The investment banker will also consult with the company regarding the size of the offering, considering such factors as the amount of capital required, investor demand, and the desired retention of control over the corporation.
  7. Printing. The company should have earlier selected an experienced financial printer who has adequate printing capacity and is familiar with the SEC’s regulations regarding the use of graphics. The final prospectus is sent to the printer for printing on an expedited basis.

 

Free Initial Consultation with a Securities Lawyer

When you need SEC or securities law help, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Friday, October 26, 2018

Small Business Owner Liability

Small Business Owner Liability

This article will discuss the liability a business owner has in a slip and fall situation.  When a small business owner opens his or her doors to the public, potential liability for a slip and fall accident also opens up. Following is an overview of slip and fall accidents, including a look at personal injury cases arising from a slip and fall incident.

“Slip and Fall” Overview

“Slip and fall” is a term used for a personal injury case in which a person slips or trips and falls, and is injured on someone else’s property. These cases usually fall under the broader category of cases known as “premises liability” claims, because slip and fall accidents usually occur on property (or “premises”) owned or maintained by someone else, and the owner or possessor of the property may be held legally responsible.

Dangerous conditions such as torn carpeting, changes in flooring, poor lighting, narrow stairs, or a wet floor can cause someone to slip and hurt him or herself inside a building. Other instances of slip and fall incidents can occur when people trip on broken or cracked public sidewalks, or trip and fall on stairs or escalators. In addition, a slip and fall case might arise when someone slips or trips and falls because of rain, ice, snow or a hidden hazard, such as a pothole in the ground.

Proving Fault in Slip and Fall Cases

There is no precise way to determine when a business owner is legally responsible for a customer’s injuries in a slip and fall accident. Each case turns on whether the business and/or property owner acted carefully so that slipping or tripping was not likely to happen, and whether the customer was careless in not seeing or avoiding the condition that caused the fall. Here are some general rules for determining fault for a slip (or trip) and fall injury.

General Rules of slip and fall 

In most cases, a person injured in a slip and fall on someone else’s property must prove that the cause of the accident was a “dangerous condition,” and that the owner or possessor of the property knew of the dangerous condition. A dangerous condition must present an unreasonable risk to a person on the property, and it must have been a condition that the injured party should not have anticipated under the circumstances. This latter requirement implies that people must be aware of, and avoid, obvious dangers.

In order to establish that a business/property owner or possessor knew of a dangerous condition, it must be shown that:

  • The owner/possessor created the condition;
  • The owner/possessor knew the condition existed and negligently failed to correct it; or
  • The condition existed for such a length of time that the owner/possessor should have discovered and corrected it prior to the slip and fall incident in question.

For a business/property owner or possessor to be held liable, it must have been foreseeable that his or her negligence would create the danger at issue. For instance, if a can of paint falls to the ground and spills into an aisle in a hardware store and, one day later, the store has not noticed or cleaned up the spill, and someone slips in the paint and is injured, one might argue it was foreseeable that the store’s negligence in failing to inspect its aisles and clean up spills would result in someone slipping and injuring himself on a spilled item.

Occasionally, a person injured in a slip and fall case can prove negligence by showing that the property owner violated a relevant statute. For example, building codes often dictate when and where handrails and other similar features must be installed. If a customer falls on a stairway that lacked appropriate handrails, and the lack of the handrail caused the injuries, the customer may have a valid claim against the building owner based on his or her building code violation.

This is why one of the things you will always here us tell you is to have a general counsel attorney on your side (like us – give us a call to discuss how we can serve as your general counsel) and you should always have a commercial general liability insurance policy (also called CGL policies).

Responsible Parties in a slip and fall case

In order to recover for a slip and fall injury sustained on another’s property, there must be a responsible party whose negligence caused the injury. This sounds obvious, but many people do not realize that some injuries are simply accidents caused, if anything, by their own carelessness. For instance, if someone falls simply because he was not looking where he was walking, he cannot recover against the business/property owner if the owner was in no way at fault, no matter how serious the injury. If an injured person is only partially at fault for his own injury, he might still be able to recover from another, but the dollar amount of his recovery might be reduced.

Commercial (Business) Property

To be legally responsible for the injuries someone suffered from slipping or tripping and falling on someone else’s commercial (business) property, the owner/possessor of a store, restaurant, or other business (or an employee of the business):

  • Must have caused the spill, worn or torn spot, or other slippery or dangerous surface or item, to be underfoot;
  • Must have known of the dangerous surface but did nothing about it; or,
  • Should have known of the dangerous surface because a “reasonable” person taking care of the property would have discovered and removed or repaired it.

The third situation is the most common, but is also less clear-cut than the first two because of the phrase “should have known.” Liability in these cases is decided by common sense. The law determines whether the owner or occupier of property was careful by deciding if the steps the owner or occupier took to keep the property safe were reasonable.

In slip and fall cases on commercial (business) property, there are often a number of people or entities that may be held responsible for someone’s injuries. For instance, if a business rents space from a property owner, both the property owner and the tenant (the business) may be named as defendants by someone injured on the property. In that case, the tenant is known as a possessor of the property, and has a duty to use reasonable care to prevent injury to those on the premises under its control. A possessor might also be a party who manages or maintains the property, such as a management company.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Thursday, October 25, 2018

Utah Divorce Mediation

Utah Divorce Mediation

Your marriage is over and you want to save money and time and prevent the emotional trouble many people experience during a divorce. Mediation seems like a good option. What should you do?

Mediation is an informal process that is usually less expensive than other methods of divorce, including the collaborative divorce process and litigation. By keeping conflict low, mediation offers parties a chance to make required agreements and move forward without undue delay.

When you are ready for mediation, consider these steps:

  • Locate an effective mediator: There are many professionals and paraprofessionals, such as paralegals, offering divorce mediation. Stick with an experienced family law attorney who is trained in mediation. A skilled attorney acting as a mediator foresees legal problems that might arise and informs you of potential consequences you should know about.
  • Prepare emotionally for your mediation: Mediation helps people create satisfying divorce agreements. Make a list on paper of what you need from the mediation and what you want. Arrive ready to negotiate and compromise — but keep your real needs in mind.
  • Prepare financially for your mediation: Bring documents like pay stubs, tax returns and statements on all banking, savings, retirement, investment and other accounts. Prepare a realistic budget for your household.
  • Understand the ground rules: Talk to your mediator about ground rules prior to your session. Ask about process and whether the parties can speak privately with the mediator about private concerns that might become sticking points during the mediation.

As an informal method of dispute resolution, mediation offers a great deal. If you feel uncomfortable without legal representation, you and your spouse can each bring an attorney for personal legal support during mediation.

Interesting Divorce Statistics and Correlations

National statistics like the “divorce rate” are subject to constant scrutiny and analysis, and different studies may come to different results. The following are a few statistics and correlations related to divorce that may or may not surprise you:

  • Cohabitation before marriage increases the likelihood of divorce: This is one of those issues that has been studied over and over again, with differing results. One report from 2009 indicates there is a 49 percent chance of a couple divorcing within the first five years of marriage if they lived together before they were married, and a 62 percent chance a divorce will occur within 10 years. This contrasts with a 20 percent divorce rate within five years and a 33 percent rate within 10 years for couples that did not live together previously.
  • The “seven year itch” is a real thing: One study indicates that couples that make it through seven years of marriage have the best chance of a long-lasting, happy relationship. The first two years tend to involving getting to know each other more closely, while the third and fourth years are when people really settle into their marriages. The fifth year, meanwhile, is when stresses such as jobs and expanding families tend to begin complicating the relationship.
  • People who marry their affair partner are extremely likely to divorce: This is not particularly surprising, but one study indicates 75 percent of people who marry someone with whom they previously had an affair will get divorced.
  • Cheaper weddings are likely to lead to longer marriages: The average wedding in America these days is pushing $30,000. However, a CNN study from a couple years back showed couples who spend more than $20,00 on a wedding have a divorce rate 1.6 times that of people who spend between $5,000 and $10,000.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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401k Plan Fees for Employers

401k Plan Fees for Employers

A participant-directed retirement savings plan, such as a 401(k) plan, is an important tool to help your employees achieve a secure retirement. As part of offering this type of program, you or someone you choose must select the investment options from which your employees will choose, select the service providers for the plan, and monitor the performance of the investments and the provision of services. All of these duties require you to consider the costs to the plan. This brochure can help you ask the right questions to better understand and evaluate the fees and expenses related to your plan.

You or the person you select to carry out these responsibilities must comply with the standards provided under the Employee Retirement Income Security Act of 1974 (ERISA). This federal law protects private-sector pension plans. The law’s standards include ensuring that you act prudently and solely in the interest of the plan’s participants and beneficiaries.

Understanding fees and expenses is important in providing for the services necessary for your plan’s operation. This responsibility is ongoing. After careful evaluation during the initial selection, the plan’s fees and expenses should be monitored to determine whether they continue to be reasonable. While ERISA does not set a specific level of fees, it does require that fees charged to a plan be “reasonable.”

Of course, the process of selecting a service provider and investment options should address many factors, including those related to fees and expenses. You must consider the plan’s performance over time for each investment option. This selection process and continual monitoring will make it possible for your employees to make sound investment decisions. As part of your evaluation process, here are 10 questions to help focus your consideration of fees and expenses:

  • Have you given each of your prospective service providers’ complete and identical information with regard to your plan?
  • Do you know what features you want to provide (e.g., loans, number of investment options, types of investments, Internet trading)?
  • Have you decided which fees and expenses you, as plan sponsor, will pay, which your employees will pay, and/or which you will share?
  • Do you know which fees and expenses are charged directly to the plan and which are deducted from investment returns?
  • Do you know what services are covered under the base fee and what services incur an extra charge?
  • Do you know what the fees are for extra or customized services?
  • Do you understand that some investment options have higher fees than others because of the nature of the investment?
  • Does the prospective service arrangement have any restrictions, such as charges for early termination of your relationship with the provider?
  • Does the prospective arrangement assist your employees in making informed investment decisions for their individual accounts (e.g., providing investment education, information on fees, and the like) and how are you charged for this service?
  • Have you considered asking potential providers to present uniform fee information that includes all fees charged?
  • What information will you receive on a regular basis from the prospective provider so that you can monitor the provision of services and the investments that you select and make changes, if necessary?

Retirement Plans for Businesses in Utah

Provide all prospective service providers with complete and identical information about the plan and what you are looking for so you can make a meaningful comparison. This information includes the number of plan participants and plan assets as of a specified date.

Consider the specific services you would like provided. For example, the types and frequency of reports to employer, communications to participants, educational materials and meetings for participants and the availability and frequency of participant investment transfers, the level of responsibility you want the prospective service provider to assume, what services must be included and what are possible extras or customized services, and optional features such as loans, Internet trading and telephone transfers.

  • Make informed decisions in selecting and monitoring your plan service providers and investments.
  • Fees are just one of several factors you need to consider in your decision making.
  • All services have costs. Compare all services to be provided with the total cost for each prospective provider.
  • Consider obtaining estimates from more than one service provider before making your decision.
  • Cheaper is not necessarily better.
  • Ask each prospective provider to be specific about which services are covered for the estimated fees and which are not. To help in gathering this information and in making equivalent comparisons, you may want to use the same format for each prospective provider. See EBSA’s Web site for an example of a uniform fee disclosure format to assist in your selection and monitoring process.
  • Fees and expenses can have a significant impact on your employees’ retirement savings.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
at No comments:
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