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Protecting Your Personal Injury Settlement During Divorce

Protecting Your Personal Injury Settlement During Divorce

 

Enduring divorce can be a complicated process that will require you and your soon-to-be-ex to develop agreements around critical aspects of your life. Sorting out custody agreements, assets, and property is often challenging. Even when couples have every intention of working together amicably, the process can quickly become complicated. If you have received a personal injury settlement and are in a divorce process, you may be concerned over how these assets will be divided. This is where a divorce lawyer will play a critical role. With their support, they can help guide you through the process so that you receive the best outcome possible.

 

Separate vs. Community Property

When divorce is involved, many people are overcome by emotion and concerned over how the process will impact their life moving forward. Divorce can be challenging, and you will likely want to know which property will need to be shared and what you will retain for yourself. When initiating the divorce process, it’s crucial to have an understanding of the difference between separate and community property:

 

Separate Property: This property belongs to one spouse. Typically these are assets acquired by one party before the marriage, certain types of inheritance, and some personal injury settlement awards.

Community Property: Also known as marital property, is property that both parties share. This includes assets that are gained throughout a marriage. It’s also essential to be aware that this may include debts or losses as well.

 

Divorcing couples should know that the way assets are divided will largely depend upon where they live. In states that follow community property laws, everything acquired during the marriage is divided equally. In states that observe equitable distribution laws, the property typically belongs to the spouse who acquired it. However, during divorce, assets are divided equitably. To learn more, it’s critical to consult with an experienced divorce lawyer in your area.

 

Factors to Keep in Mind

When it comes to divorce and a personal injury settlement, there are several factors that you will need to keep in mind. Typically when you receive a personal injury settlement, it’s intended to assist with covering losses incurred from the accident. However, know that during divorce, it’s essential to understand that depending upon the settlement, and the damages that were suffered, some of the proceeds may be considered marital property. In personal injury cases, there are a few types of damages to consider:

 

Economic Damages: medical expenses, lost wages, property damages, etc.

Pain and Suffering: loss of enjoyment, loss of consortium, emotional distress, etc.

Punitive Damages

 

Some losses incurred during the marriage may impact both parties, which may allow for portions (typically economic damages) of the personal injury settlement to be shared. Damages that were directly intended for the injured parties’ specific losses, such as loss of enjoyment, may be considered separate property.

 

As the lawyers at Cohen & Cohen explain, it’s important to know that those enduring a divorce with a settlement at stake should always consult with an experienced lawyer to ensure your situation’s specifics are taken into consideration. Contact a divorce lawyer as soon as possible so that you may receive the counsel you deserve.

 

COVID and Long Distance Parent-Time

With many schools shutting down and hospitals running out of capacity due to COVID, the dangers from the resurging number of COVID cases feels more alarming than ever before. The risk of COVID spread is especially high for people traveling from one part of the country to another.

What are parents supposed to do for long-distance parent time, especially over the Holidays? Divorce decrees and custody orders mandate holiday parent time, but are parents required to travel or send their children away for long-distance holiday parent time even with the COVID crisis?

The answer is generally yes. Providing parent time travel is generally considered essential, not much unlike hospital and emergency work or grocery and supermarket staffing. Despite the dangers present due to COVID, we do not know how long the crisis will last and COVID dangers should be balanced against the danger for lasting damage to a parent time relationship if long-distance parent time is denied.

Generally speaking, long-distance parent time should still be honored, despite COVID, but there are some exceptions. If active COVID cases are present at either the custodial parent or non-custodial parent’s household, then the long-distance parent time should be postponed until the COVID is no longer active or contagious in the household. Also, if the parent time travel poses an unacceptably high risk due to the child’s specific health concerns then the child should probably not travel. Instead, the non-custodial parent might consider traveling to the child. In either case, make-up parent time should of course be granted for any parent time missed.

Due to COVID dangers, parents and children should absolutely take precautions for any long-distance parent time travel. The custodial and non-custodial parent may each want to quarantine their households, including the child, for two weeks prior to and after travel. With school and work schedules, strict quarantine may not be possible. In that case, a soft quarantine (avoiding any unnecessary socializing, meetings, shopping, etc) can be used to help minimize the risk.

And of course, both parents and the child should wear masks, wash hands frequently, and practice good social distancing before, during, and after the parent time travel. Also consider changing clothes and or bathing immediately on reaching your destination to minimize risks. In all cases, follow local health department guidelines.

In a nutshell, allowing parent time is considered essential to the healthy, normal development for your child. Parents should be supportive of each other in making sure parent time happens. And if parent time needs to be long-distance, then both parents should do what they can to minimize the risks from COVID while still working to honor their divorce decree or custody order.

If you  have questions or concerns about parent time and COVID issues, contact Jonathan Felt at Felt Family Law & Mediation or another attorney near you.

What Does Divorce Mediation Mean?

By definition, divorce mediation is when two soon-to-be former spouses try to arrive at agreements together with a mediator present. This mediator is to be an unbiased third party that helps the spouses end their marriage in the most amicable way possible. People who need some advice before a mediation session can turn to an attorney who specializes in family law. A lawyer will be able to answer any questions or concerns you may have about what to expect during this meeting.

 

In the article here, the lawyers at Cohen & Cohen have provided further legal definitions and explanations associated with divorce mediation, to help you feel more prepared.

 

Topics Covered During Mediation

The decisions you may have to make during mediation can vary depending on whether you have shared children, and what topics you have had difficulty finding solutions for together. Common issues talked about during mediation sessions are defined below:

 

  • Child Custody = a legal term which refers to the parent’s relationship with his or her children, and ability to make certain decisions regarding wellbeing. The types of child custody include legal custody, physical custody, sole custody, joint legal custody and joint physical custody.

 

  • Distribution of Property = also referred to as equitable distribution, these are the property obligations and rights divided between spouses going through divorce.

 

  • Child Support = an amount ordered by the court, that is typically paid by the noncustodial parent after divorce which helps support care of children.

 

  • Retirement Fund = an account used to deposit benefit funds for retirement, that may be split between each spouse during divorce unless a prenuptial agreement states otherwise.

 

Meeting in the Middle

During mediation, the mediator is to oversee and guide the conversation between spouses when needed. It is important to note that a mediator is not the same as a therapist. While the mediator may emphasize communicating in a healthy way, the intention is for each spouse to meet in the middle in regards to heavily disputed divorce topics. An attorney can help you get prepared for your mediation sessions, so you can walk in feeling more confident.

 

Role of the Mediator

The mediator has a huge role to play when it comes to helping the spouses arrive at a solution they are both at least somewhat satisfied with. A divorce mediator must be neutral no matter what, and refrain from giving advice during the session. A successful mediator is one who can:

 

  • Lead the spouses to a reasonable solution/agreement
  • Help the spouses brainstorm ideas together
  • Encourage a safe space where each spouse can speak openly
  • Offer mediation sessions weekly, bi-monthly, monthly or however often the spouses would prefer
  • Redirect the spouses to the topic at hand if they get carried away by name-calling, recalling bad memories, or blaming

 

Please call a law firm today to schedule an appointment with an attorney. The attorney you work with can find out more about how exactly he or she can be of assistance to you during divorce mediation. Many firms offer initial consultations for free to new clients, so take advantage of this right away.

 

 

Utah Family Law Explained: Physical Custody & Parent Time

There are two kinds of child custody in Utah – Legal Custody and Physical Custody. This article addresses Physical Custody. Within the physical custody spectrum, parent time can follow many different parent-time plans. For joint physical custody, Utah courts should designate a primary custodian or primary residence.
PHYSICAL CUSTODY
Physical Custody in Utah literally means, “the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.” Utah Code 30-3-10.1(3)(a).
Whether there a parent has sole physical custody or joint physical custody depends on how many overnights per year each parent has with the child. If one parent gets less than 110 overnights, the other parent by definition gets sole physical custody. If each parent gets 111 or more overnights each year, then they both get joint physical custody.
Within the physical custody spectrum, parent time (or “PT”) can follow one of many different plans:

  • Minimum PT (< 110 overnights = sole physical custody)
  • “Extended” PT (145/220 overnights = joint physical)
  • “6/8” PT (roughly 156/209 overnights = joint physical)
  • 50/50 PT (182/183 or 183/182 overnights = joint physical)
  • Restricted PT (less than minimum PT or supervised PT = sole physical)
  • Relocation PT (where parents live too far apart to share custody = sole physical)
  • Custom PT Plans (sometimes to accommodate parents’ work schedules)
  • Other parent time and physical custody arrangements are also possible. These include minimum
  • PT for children under the age of 5; split custody where some of the children live with one parent and their siblings live with the other parent; and shared custody where parents share custody or parent-time with a grandparent or other third party.

 

PHYSICAL CUSTODY FACTORS

  • When Utah courts determine physical custody, they look and many factors:
  • Custodial history – who spent what time with the child before and after the parents separated and how each parent has historically acted toward the child
  • Parent/child bonds – how strong is the child’s bond with each parent
  • Ability to provide care – how willing and able is each parent to provide for the child’s nurturing and care (being home with the child, feeding, bathing, helping with homework, buying clothes, protecting from harm, etc.)
  • Work schedules – how compatible each parent’s work schedule is to spending time with the child, as well as the availability of surrogate care (day care, family members, babysitters, etc.) when the parent are at work
  • Home environment – each parent’s home, who else lives there, and whether the child’s space there is adequate, safe and appropriate for the child’s needs
  • Proximity – how close each parent lives to the other and to the child’s school, as well as transportation needs and each parent’s access to transportation
  • Willingness – each parent’s ability and willingness to cooperate and co-parent with the other parent
  • Safety – any history of domestic violence, abuse or neglect of the child, violent criminal history, or other safety concerns
  • Substance abuse – any history of substance abuse in the child’s presence or during a parent’s time with the child; or substance abuse by a parent to the extent that the parent is unable to safely or effectively care for the child
  • Child’s preference – in some cases, the desires or preference of the child (especially if the child is 14 or older), although the child’s preference cannot be the single controlling factor
    Utah law does not create a preference either for or against joint physical custody. Rather, Utah courts have “the widest discretion to choose a parenting plan that is in the best interest of the child.” That said, there appears to be a trend in Utah toward granting joint physical custody unless there are good reasons not to (such as past abuse, a delinquent parent, living too far apart, etc).

PRIMARY CUSTODIAN/PRIMARY RESIDENCE
When joint physical custody is granted, Utah courts are required by law to designate a “primary custodian” or “primary residence.” This designation lets schools know which parent’s address to use for school attendance and lets the parents know which address to list as the child’s primary address. The designation often goes to the parent who receives the most parent time overnights. When a parent has sole physical custody, that parent is automatically presumed to be the primary custodian and their address is presumed to be the child’s primary residence.
CUSTODIAL PARENT FOR HOLIDAYS
Another similar-sounding designation is used for dividing holiday parent-time. The terms “custodial parent” and “non-custodial parent” are commonly used to assign who gets what holidays for which years under the Utah statutory holiday calendar. The “primary custodian” for school and residency is not always the same parent as the designated “custodial parent” for holiday purposes.

IN A NUTSHELL: Joint physical custody in Utah means that each parent gets 110 or more overnights each year with their child. Sole physical custody means one parent gets less than 110 overnights. Utah courts look at a number of factors in determining physical custody. For joint physical custody, the courts may designate a “primary custodian” or “primary residence” which should not be confused with the designation “custodial parent” for holiday purposes.

If you like this article, check out more of our articles here and like us on social media. For legal advice about your specific case, contact us here.

This article is intended for general information purposes and should not be construed as legal advice. For legal advice about Utah Family Law or about your specific case, contact an attorney near you.

Utah Family Law Explained Legal Custody

Felt Family Law & Mediation
It’s In Our Name – It’s What We Do

Utah Family Law Explained

Legal Custody

There are two kinds of child custody in Utah – Legal Custody and Physical Custody. This article addresses Legal Custody.

LEGAL CUSTODY

Legal Custody in Utah boils down to two main ideas: (1) access to information and (2) decision-making authority. Utah favors awarding joint (or shared) legal custody in most cases, unless one parent or the other is incapable of co-parenting the child. Joint legal custody requires a co-parenting plan.

  1. ACCESS TO INFORMATION

When parents share joint legal custody, each parent should have free or “unfettered” access to their child’s education records, medical records, and other personal and sensitive information.

Access to School Records: Access to school records means each parent can access the child’s attendance, report cards, IEP or special accommodations information, school discipline records and parent-teacher conferences. Parents can meet with teachers or administrators together or they can set up separate meetings (e.g. if the parents cannot make the same appointment or can’t stand to be in the same room with each other).

Each parent is responsible for their own access to school information, such as setting up their own school log in, contacting the school themselves, checking the school calendar or webpage, and keeping their contact information up to date. For joint legal custody, neither parent may block, remove or otherwise interfere with the other parent’s school access.

Access to Medical Information: Access to medical information is like the access to school records. For joint legal custody both parents have the right to be informed of all medical, dental or related appointments and procedures. Each parent is entitled to attend the appointments if they desire. Like with school records, both parents should be listed as emergency contact for each of the child’s doctors, dentists, or other medical care providers. Each parent is responsible for getting their own copies of medical records if desired.

IMPORTANT NOTE: Although neither parent may interfere with the other parent’s access to the child’s school and medical information, schools and doctors are not under the same restriction. A school or medical provider may refuse to work with a non-cooperative or belligerent parent under certain circumstances. So, even if parents are on the worst of terms with each other, it pays to stay on good terms with the child’s school and medical care providers.

Other Shared Information: Other shared information and documents can include access to access to copies of the child’s birth certificates, social security cards, church records, employment and insurance information, and other sensitive records. Again, while each parent gets unfettered access, each parent may be required to arrange and pay for their own copies of the records.

2. JOINT DECISION MAKING

Joint legal custody in Utah also means joint decision making. This means that parents should communicate and work together for major life decisions regarding the child. Major life decisions include important education, medical, and religious decisions, as well as major changes in appearance.

Major Education Decisions: Major education decisions include what school to attend; whether a child needs an IEP or special accommodations; whether to stay back or skip a grade; whether or not to home school; whether to participate in TAG, advanced, or other special programs; major discipline; or important academic decisions.

Major Medical Decisions: Major medical decisions can include whether and when to set up elective procedures (e.g. getting tonsils removed, getting braces, etc.); deciding to begin, end or change a long-term medication, counseling or other treatment plan; which doctor, dentist, therapist or medical services facility to use; whether or not to immunize the child; and other long-term medical care decisions. Setting up appointments and getting routine checkups generally do not count as a major medical decision, although both parents should receive advance notice of the appointment.

Major Religious Decisions: Major religious decisions include giving permission to join a church as well as whether and when to receive religious ordinances. However, week-to-week church attendance or participation in church activities generally counts as a “day-to-day decision” and not a major religious decision.

            Major Changes in Appearance: Major changes in appearance can include whether and when to let the child get ear and or other body piercings, tattoos, permanent or long-lasting hair coloring, or allowing extreme hair or clothing styles. However, day-to-day appearance issues (what clothes to wear, reasonable makeup, daily hair styles, etc) are generally day-to-day decisions and up to the parent who has the child at the time.

Day-to-Day Decisions: Even with joint decision making, each parent still gets to make day-to-day decisions, like what to wear, who the child can be around or be friends with, what or how much electronic entertainment, bedtimes, or what and when the child eats. As long as the child is safe and healthy and the day-to-day decisions are not extreme, each parent generally gets to make the day-to-day decisions on days they have the child.

Emergency Decisions: Like day-to-day decisions, shared decision-making does not include emergency decisions, like when a child gets ill or injured. In emergencies, the parent with the child at the time should make the emergency decision and communicate with the other parent about what happened, what was done, and what to do next.

  1. PRESUMPTION IN FAVOR OF JOINT LEGAL CUSTODY

Utah law sets a presumption in favor of joint legal custody.  This means that unless there is a good reason to not share legal custody Utah courts will generally grant joint legal custody.

Reasons for not granting joint legal custody can include the following:

  • History of and potential for abuse, neglect, kidnapping and or domestic violence
  • A parent who refuses to or is incapable of communicating civilly or otherwise co-parenting with the other parent
  • A parent who shows little or no interest in the child or the child’s welfare
  • Physical distance making joint decisions impractical (although with the internet, texting, and video conferencing available, this reason is becoming less of a showstopper)
  • A parent’s inability or lack of interest to accommodate the special needs of the child
  • A parent who uses drug or alcohol to the point that they are incapable of making good decisions for the child

IMPORTANT NOTE: These are not the only factors the court may consider, and the presence of any of these factors does not necessarily prevent joint legal custody. Each case is different, and custody outcomes depend on numerous factors. Outcomes can vary greatly from case to case. If you have questions or concerns about your specific case, you should contact an attorney for legal advice.

Co-Parenting Plan: In all cases with joint legal custody, the parents are required to have a co-parenting plan. Among other provisions, the co-parenting plan outlines the procedures for joint decision making for major life decisions. The co-parenting plan also sets ground rules for how the parents should treat each other and communicate regarding their child.

IN A NUTSHELL: Joint legal custody in Utah means that parents are expected to continue working together and to share information about their child. Joint legal custody is the general rule, unless one parent or the other is incapable or refuses to work with the other parent for the child’s best interest. Parents with joint legal custody are expected to follow a co-parenting plan.

 

If you like this article, check out more of our articles here and like us on social media. For legal advice about your specific case, contact us here.

 

This article is intended for general information purposes and should not be construed as legal advice. For legal advice about Utah Family Law or about your specific case, contact an attorney near you.

 

What is Mediation

Many of my Divorce and Child Custody clients ask, “What is mediation?” In a nutshell, mediation is an alternative to dragging ourselves, family members, and friends through the court process. It’s shutterstock_364357424 (1)much faster, saves a ton of money, and generally gets far better results than going to trial.

In mediation, the parties meet with a mediator instead of a judge. The mediator asks questions to understand the issues – but unlike a judge or attorney, the mediator does not make decisions, does not weigh evidence, and does not advise the parties what should or should not happen. The mediator’s primary (often only) role is to help the parties work together to find a resshutterstock_1124825336 (1)olution that each side can live with.

Mediation can follow many different formats. In Utah domestic cases (e.g. Divorce, Custody, etc) mediation most typically proceeds as follows:

  • First, Introductions: the mediator introduces mediation and gets to know the parties and the issues in their case. The parties may be together for this step or in separate rooms.
  • Second, Inquiry: the mediator asks each party in turn more probing questions about the issues and how each party would like to resolve each issue. More often than not, the parties are in separate rooms and the mediator shuttles back and forth.
  • Third, Negotiation: the mediator assists the parties exchange offers and counter offers and helps the parties find common ground.
  • Fourth, Documentation: if the parties reach a resolution (which happens more often than not), the mediator helps the parties document their agreement. This may result in a Memorandum of Understanding or Stipulation (both fancy ways of saying “written agreement”). If the parties do not reach a resolution, the mediator documents who attended mediation and that no resolution was reached.

That’s it. That’s all there is to it.

Of course, it’s not quite that simple. It is rare that either side gets in mediation everything they want. Almost always, mediation requires some give and take on both sides. It is therefore important to have a mediation plan, to identify what issues are most important, and to know which issues are not worth fighting over and which issues are worth going to court over.

It is important to talk and plan for mediation with an attorney experienced in mediation representation. If you need representation for mediation, if you have questions about the mediation process, or if you would like to more,  Felt Family Law, PLLC today.

Do I Need An Attorney?

by JONATHAN L. FELT
Felt Family Law & Mediation

I hear the question all the time. “Do I really need an attorney?”  Like all good legal questions, the answer is, “It depends.”

There are many great reasons to get an attorney: professional advice, professional results, and letting someone else lift that burden, to name a few. There are also good reasons to not hire an attorney: attorneys can make simple issues complicated and often cost a lot!

The question is not much different than, “Do I really need to hire a plumber?” or “Do I really need to see the doctor?” Deciding when you do or do not need an attorney is a personal choice that depends on multiple factors.

There are situation you might want to save your money and not hire an attorney. Although attorneys like to think they are always needed, there are many legal situations that don’t really need an attorney’s help. Here are some indicator that an attorney might not be needed:

  • Someone else already has expertise or experience in that area
  • Everybody already agrees what should happen
  • The case is not complicated
  • The evidence is clear as to what happened
  • The statute (or rule) is clear what should happen
  • Not a lot is at stake
  • Nothing was damaged

Still, even when an attorney may not be needed, getting a quick consultation from an attorney is a good idea if there is any doubt.

For those who prefer to DIY, there are great resources to help. My specialty happens to be in Family Law, so many of the resources listed below focus on divorce, custody and other family issues:

  • Court self-help websites – in Utah, try utcourts.gov/selfhelp/ for help in various areas
  • Court assistance programs – for Utah, try utcourts.gov/ocap/ for help with divorce, custody, and protective orders
  • Mediators – in Utah, find one on the Court Roster of Mediators
  • Local “Bar Nights” (where attorneys answer questions – not the beverage type)
  • Veterans assistance programs – do a search in your area

In the end, I generally answer:  It’s like doing your taxes. If it’s simple and you don’t mind the work, go for it. If you have questions or don’t like paperwork, hire a professional. Odds are, with an attorney you will save yourself much headache and get better results.

That said, there are some instances I never recommend going it alone, without consulting an attorney:

  • Any time domestic violence or child abuse/neglect/endangerment is involved
  • Any felony
  • Bankruptcy
  • Adoptions
  • Any case or estate worth over $250,000

In each of these, a lot of money or a lifetime of consequences is at stake, and not having an attorney can cost big.

If you need an attorney or just want a consultation, for Utah Family Law I’m your guy. For other cases, I am always happy to refer great people to great attorneys I know.