Objecting to a Commissioner’s Recommendation

Court commissioners have limited judicial authority compared with a court judge. A court commissioner initially hears the majority of family law matters. At the conclusion of a hearing, the court commissioner will make a recommendation on orders regarding the relief requested. However, if an individual is unsatisfied with the commissioner’s recommendation,
Utah law provides a method to object to the commissioner’s recommendation. The District Court Judge then considers the matter.

Under Utah Rules of Civil Procedure Rule 108, a party may file a written objection to the recommendation. It must be filed within fourteen (14) days after the recommendation is:

  • made in open court, OR
  • when the minute entry in the recommendation is served.

The objection consists of a written pleading filed with  the court. The Utah Rules of Civil Procedure Rule 7 governs the length and content of the pleading.

The objecting party must identify:

  • the particular findings of fact
  • conclusions of law
  • order, OR
  • part of the recommendation to which the objection refers and state the relief sought.

Presenting Evidence to a Judge

Ordinarily, evidence presented to the judge only evidence presented to the commissioner shall be presented to the judge. However, the judge may consider new evidence if there has been a substantial change of circumstances since the commissioner made his or her recommendation. The non-objecting party has a chance to respond to the objection as provided under Utah Rules of Civil Procedure Rule 7. It is possible that both parties can object to the commissioner’s recommendation since the commissioner can make several decisions or recommendations.

The same findings of fact or conclusions of law made by the commissioner do not bind the judge. The judge will make independent findings of fact and conclusions of law based on the evidence, whether by

  • proffer
  • testimony, OR
  • exhibit

This is different than appealing a case or decision to the Utah Court of Appeals or the Utah Supreme Court. The district court judge is not required to give deference to the commissioner’s findings like the Court of Appeals or Supreme Court must do at times. Either party may request a hearing before the judge; however a judge does not necessarily have to agree to have a hearing and can decide the matter based on the motions and evidence presented. If neither party requests a hearing, then the judge can either make a decision based on the record or decide to hold a hearing on its own.

Things to be Aware of Concerning Filing an Objection

An objection is an important tool an individual can use to get a fair and equitable result. If an individual believes the recommendation made by the commissioner to be unfair or inequitable, that individual has the right to object to the recommendation and have the matter heard again before the judge. However, an individual should not approach the initial hearing with the commissioner with minimal effort.

The judge usually only considers evidence presented to the commissioner. Evidence not presented to the commissioner will not be presented to the judge. An objection can also be a costly procedure. While an individual may prevail in their objection, they will incur extra legal fees. In the alternative, an individual can lose his or her objection and still end up with the extra legal fees. If you are considering objecting to a commissioner’s recommendation, please consult with your Salt Lake City family lawyers to discuss the pros and cons of doing so.

Sarah ChristensenObjecting to a Commissioner’s Recommendation
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The Impact of an Affair on Your Divorce Case

Many people consider divorce after discovering a partner’s affair. As a salt lake city divorce lawyer, the Christensen Law Firm and I have represented numerous clients whose marriages ended due to infidelity. This includes representing clients on both sides of the equation. Often, clients want to know whether cheating impacts issues like alimony, custody, and child support.

In Utah, adultery initiates divorce as a considered fault ground. Utah is a “no fault” divorce state. This means neither party needs to prove fault in order for a divorce to be granted. However, a party can allege fault, such as adultery, as grounds for divorce. The benefit of alleging adultery as grounds for the divorce is a question which requires careful consideration. Accordingly, consult an attorney regarding the specific facts of each case.

Building a Divorce Case Around Evidence of an Affair

Although an affair used as grounds for a fault-based divorce in Utah, cheating can have little effect on a case if the fact of cheating has not directly impacted the parties’ children or the couple’s finances. However, if the cheating party squandered marital assets while pursuing an affair or if the children were directly impacted by the affair through exposure to one parent’s sexual exploits, these facts can have an impact on custody and support.

Finally, whatever side of the infidelity you find yourself on, it is helpful to discuss your options with an attorney. We can help you

  • understand the law
  • get a sense of what kind of support you can receive
  • and custody entitled to you in the divorce.
Sarah ChristensenThe Impact of an Affair on Your Divorce Case
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Qualified Domestic Relations Order (QDRO)

Retirement accounts, including but not limited to

  • 401ks
  • IRAs
  • pension plans

These are usually some of the most important assets to divide between divorcing spouses. Parties typically agree on how this account divides between them. However, the parties and their attorneys need to be more specific. They need to do more than designate the divorce decree or settlement agreement to divide the accounts. The retirement plan can be subject to the Employee Retirement Security Act (ERISA). If this is the case, the parties will need to draft a Qualified Domestic Relations Order (QDRO). The Court and the retirement plan’s administrator both then accept or reject the QDRO. A party who does not draft a proper QDRO can find themselves forfeiting a portion, or the entire amount, of the retirement account, that the party received in the divorce decree.

What is a QDRO?

A retirement account subject to ERISA requires a special order to divide the retirement account to award a portion of the account to an individual other than the plan participant. The alternate payee refers to the individual receiving a portion of their spouse’s account. A proper QDRO consists of an order approved by the Court and the plan administrator. They certify that the division of the retirement account complies with both federal law and the plan administrator’s specific requirements. Once approved, the plan administrator can divide the retirement account. They then award a portion of the account to the alternate payee.

Do I need a QDRO?

Only retirement accounts subject to ERISA require a QDRO. An IRA usually does not require a QDRO. This is because the account owner is the person in control of the account and considered the plan administrator (I.R.C. § 408). However, each retirement plan is different. It is best to check with the plan administrator to see what documents they require to divide the account.

Important QDRO Considerations

It is important that you consult with your Salt Lake City divorce lawyer when contemplating the division of any retirement account. Usually, the attorney for the alternate payee is the party responsible for drafting the QDRO. There are, however, many attorneys who do not draft QDROs. It is important that you talk with your attorney to know if they plan on drafting the QDRO or if you will need separate counsel.

Many retirement account plan administrators have sample QDRO forms that an attorney or party can fill out. However, it is important to remember that the plan administrator designed these forms for their ease. They are not designed necessarily for the benefit of the alternate payee. It is important that the alternate payee’s attorney carefully drafts a QDRO that is in the best interests of his or her client and not for the ease of the plan administrator.

It is vital that a party drafts a QDRO immediately. A person who unnecessarily delays drafting and finalizing the QDRO may inadvertently waive their interest in the retirement plan. If you were awarded a portion of a retirement account in a divorce and do not know if the account was properly divided by a QDRO, please consult with us immediately to see what options are available.

Sarah ChristensenQualified Domestic Relations Order (QDRO)
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What to Expect at Mediation

Utah courts often require you to mediate if you are party to a divorce or custody case. Sometimes this happens earlier in the case if it seems like a settlement is likely. Other times, the mediation comes later. A successful mediation can end the case and save you money.

Christensen Law is a Salt Lake City law firm, and its attorneys can help you in court and at mediation. Obviously, our advice is tailored to specific individuals, situations, and cases. However, we provide below some general tips to keep in mind.

Be Prepared

At mediation, you will be negotiating and possibly agreeing to a long-term arrangement. You must know what you need and what you want. Some of your needs and wants are obvious to you. Others are not so obvious. An attorney can help you avoid pitfalls and traps from a sloppy settlement.

Don’t Worry About Being Too Prepared

There is no script that you must follow. You will find that the mediator will effectively push the discussion along.

Keep Long-Term Consequences in Mind

We have two specific warnings for long-term consequences.

  1. We understand that you want the case to be over as soon as possible. Wanting to end the case quickly can lead you to accepting a bad settlement. However, if you cannot live with the result, you will be in court again.
  2. We understand that there are issues or items important to you. We also understand that things are sometimes unfair. Sometimes fighting only makes it worse. There are times when you will need to cut your losses.

Patience

Be prepared to be patient. Mediation sessions often last several hours. Often there is not much progress in the first couple of hours. Sometimes there is an agreement, but it takes a long time to fine tune the details.

Ensure the Settlement Is Written and Signed

The other party may get buyer’s remorse. Unfortunately, your settlement is worth very little if it is not in writing.

Sarah ChristensenWhat to Expect at Mediation
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How to Declare Paternity For Unmarried Partners

When a husband and wife have a baby, the law recognizes them as the parents of the child. Both parents enjoy certain legal rights and responsibilities. When an unmarried mother gives birth, the father doesn’t automatically have any of the legal rights or duties that go along with fatherhood. Establishing paternity (fatherhood) gives unmarried fathers all the same rights and duties that married parents have when a child is born.

Paternity is established in three possible ways to unmarried parents.

 

1. Declaration of Paternity

First, both parents may sign and file a voluntary Declaration of Paternity. The Declaration of Paternity must be:

  • In a record prescribed by the Office of Vital Records;
  • Signed under penalty of perjury by the mother and father;
  • Signed in the presence of two witnesses who are not related by blood or marriage; and
  • State that the child whose paternity is being declared has a presumed father whose full name is stated and does not have any other declared or court-determined father;
  • State whether there has been genetic testing and, if so, that the father’s claim of paternity is consistent with the results of the genetic testing; and
  • State that the mother and father understand that the declaration equals a legal finding of paternity for the child. Very limited circumstances permit a challenge to the declared fatherhood.

A Declaration of Paternity may be completed and signed any time after the birth of the child. Once completed and signed, filing the Declaration puts it into effect. The Office of Vital Records then enters it into their database to establish and maintain it.

The Declaration of Paternity is the fastest, easiest and least expensive way to establish paternity in Utah.

2. Administrative Paternity Order

One parent may apply for child support services and obtain an Administrative Paternity Order. The Office of Recovery Services provides this service once paternity is verified.

3. Petition Requesting Judgment of Paternity

Finally, one or both parents, the child, or the state of Utah may file a petition in court requesting a judgment of paternity. If the court contests the petition, then they may order a blood or genetic marker test to determine paternity.

Establishing paternity provides many benefits to families, including:

  • Financial support from both parents
  • Includes the child on either parent’s health insurance plan
  • May help doctors to obtain the child’s family health history through research
  • Permits a father to pursue the rights that go along with fatherhood including decision-making and parent-time
  • Gives the child claim to benefits from the father such as inheritance, social security, and veteran’s benefits.

If you are trying to establish your rights as a father, give Christensen Law a call. We can help you work through the legal process necessary to protect your rights.

Sarah ChristensenHow to Declare Paternity For Unmarried Partners
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When Should I File a Petition to Modify?

Parents often ask a Salt Lake City family lawyer what needs to happen in order to modify their existing custody arrangement. Unfortunately, the answer is always “It depends.”

Utah law allows one or both parents of a child to petition a court to modify. They can modify an order that establishes joint legal or physical custody. A parent would have to show enough evidence that shows the circumstances of the child or parents have changed significantly. This is relevant if the changes have been made since the entry of the order that is being modified. They also have to show that the change of the previous order would be in the best interest of the child. A court will almost always require the disputing parents to mediate the dispute before the court decides the matter.

There Needs to be Substantial Change

In order to modify the existing custody arrangement, the moving party must demonstrate a material and substantial change since the entry of the previous order. Even if the proposed new arrangement would be more beneficial to the child, a court cannot consider the new arrangement without first finding a substantial and material change has occurred. In determining a possible modification, the court will consider a variety of factors.

These include (but are not limited to):

  • the past conduct and moral standards of each of the parties
  • the desires of the parties
  • the ability of a parent to have frequent and continuing contact with the other parent
  • the proximity of the homes of the parents
  • the ability of the parents to cooperate
  • any other factors the court finds relevant.

The court will give substantial weight to the existing order if the child is thriving, happy, and well-adjusted.

 

Whether or not a material and substantial changes have occurred is a factual determination. This varies from situation to situation and court to court. Courts have found that a parent’s relocation, a child starting school, and one parent continually preventing the other parent from exercising his or her parenting time is enough to justify a modification. However, a court will not automatically find those specific situations enough to justify a modification. It is important to consult with a Salt Lake City family law attorney before a parent files a petition to modify. This ensures the parent has a valid basis to modify. It is important to not file a petition to modify or answer frivolously. The court has the ability to assess the other parent’s attorney fees as a cost toward the offending parent.

Sarah ChristensenWhen Should I File a Petition to Modify?
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Recently Moved? See If You Can Modify Your Custody Agreement

When a court enters an order governing child custody it is always after hearing the presentation of evidence. The court will consider each of the facts and circumstances inherent to the particular situation of the family. This aids in making the orders accordingly.

That custody order becomes the governing and controlling schedule of custody unless and until a court modifies the order. Because the custody order is dependent on a particular set of facts, that order is the law of the case and will not be modified unless there is a showing of a “material and substantial change in circumstances.” See Hogge v. Hogge, 649 P.2d 51 (UTAH 1982).

Why Is “Best Interests of the Children” so Important?

In short, if one parent wishes to modify a custody award after a divorce decree or custody order has been entered, that party must be prepared to demonstrate a material and substantial change in circumstances. However, the question of whether there are such changes is only the first question to be asked. Only if there are such changes, the court will move on to the oft-quoted next question. Is it in the (let’s all say it together) “best interests of the children?”

Some common examples of changes in circumstances include parents remarrying, moving a significant distance away from the other parent, changing schools, among others. While these changes may constitute material changes in circumstances, they may not warrant a change in custody.

From the Court’s Point of View

The court will then consider if a change of custody is in the best interest of the child. If the court decides that the child’s friends, extended family, and school are so vital to their well-being that a change in custody would be worse for the child, the court won’t order it.

If the primary custodial parent moves and wishes to take the child with them, the court will consider several factors. They’ll look at the reasons for the move, the impact upon the child, and may order a change in custody to keep the child in his or her location in spite of primary parent’s relocation.

Each of these scenarios is fact sensitive. Anyone considering whether a modification of custody is appropriate should consult an attorney.

Sarah ChristensenRecently Moved? See If You Can Modify Your Custody Agreement
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