How Do You Tell Your Husband You Want A Trial Separation?

A trial separation is not something to be taken lightly. However, you may have reached a stage in your marriage where you don’t feel like there is an alternative, and you need to bring it up with your partner. While it may not be a huge surprise to your partner, it could still be an emotional shock that should be given proper weight. A couple may choose to undergo a trial separation before initiating divorce proceedings, or the process can lead to reconciliation. In either case, a separation allows spouses time away from each other to consider their relationship, values, and long-term goals.

Talking With Your Spouse

• Prepare your spouse: You don’t want to blindside the person out of nowhere. Alerting your spouse that you want to have a discussion can help him or her mentally prepare for what’s ahead, even if they’re not aware of exactly what you’re going to say. Also, pick a good time to sit down in person. This conversation isn’t one you want to have over email or the phone. This conversation needs to happen in person, when your spouse has the time and emotional space to deal with it. You don’t want to be distracted by other things. It might be good ideas to have someone babysit for you if you have kids. While you don’t want to put it off, timing is everything. For instance, if your spouse’s parent died last week, you may want to wait a little while.

• Express your hopes and fears: You may want to circle around the topic, but it’s best to just get it over with, though you can be gentle about it. In addition, you need to take responsibility for why you want this separation. That is, you need to tell your partner why you feel the need to separate. Lead with what you want the discussion to be about. You could say, “I don’t think we’ve been in the same place lately, and I feel us growing apart. I’d like to discuss the possibility of a trial separation.” Don’t be afraid to talk about what you’re feeling. “I am afraid that if we go on like this we will fight and argue our way to divorce, and I hope that spending some time apart will help us see what our options are without ruining each other in the process.”

• Establish what you want from the separation: Now that you’ve broached the topic, you need to let your spouse know what you expect to happen from the separation. Though it can hurt, being in the same page is important because it helps to guide your expectations through the separation. For instance, if you think the separation is a stepping stone to a divorce, you could say, “Right now, I’m really just trying to figure out what I want. However, if things don’t change between us, I could see this leading to a more permanent separation.” On the other hand, if you want the separation as a time to think with the hopes of reconciliation, you might say, “I know asking for a separation is hurtful to you. However, I don’t think things have been right between us for a while, and I think we need some time apart to figure out how to move forward in our relationship. I really do want to work it out, though, and hopefully get back together after our time apart.”

• Give your spouse a chance to react: This conversation may come as a hard blow, even if your spouse realizes you’ve been having problems as a couple. Let your spouse have a chance to react, as his or her first reaction is probably going to be emotional. Give your spouse a chance to talk through it before you start trying to evaluate whether it’s a good option for your both. Once your spouse has gotten over the initial shock, start asking questions to determine what your spouse is feeling and thinking, such as, “So what do you think? Do you think it’s a good idea?” It may be that your spouse is on the same page, thinking time apart would do you good, but your partner may not want that all.

• Discuss goals: That is, you both have things you’ll need from each other to make your marriage work. If you’ve done your homework, you already have some ideas of what you need from your partner, but your partner will also have some for you. Remember, these goals need to be concrete and specific. For instance, “Be less distant” is not concrete enough. “Check in with me at least 2 times a day” is more specific. Be open to hearing what your partner needs, as well. Each of you should have 3 to 4 goals for the other person. Agree that both of you will work on the goals without resorting to looking over the other person’s shoulder. That is, you can’t blame not achieving your goals on the other person not achieving theirs.

• Decide on ground rules: Once you’ve had the conversation about the separation, you need to have another about the rules of the separation. You need to decide whether you’re going to live apart, how the bills are going to get paid, and who’s going to do what with the kids. You should also discuss whether dating is allowed and how far you can go on a date. For instance, if you expect to get back together, you may decide to rule out dating or sex. These rules will need to be very specific. For instance, if you’re talking about who gets to spend what time with the kids, you need to lay out what days and nights of the week the kids will spend with each party. Remember that the ground rules you set for a separation may affect what happens if you get a divorce, such as custody arrangements. For instance, if your kids are mostly living with one parent or the other, that parent may be granted primary custody. Talk to a lawyer to make sure that your ground rules are fair to both of you and your kids.

• Don’t let it drag on: Together, set a time limit for your separation. It could be 3 months, half a year, or a full year. After you’ve set a limit on how long your separation will be, you can decide to let it go for longer. However, you don’t want to keep dragging it out. If you keep asking for more time over and over, it may be that it’s just time to end the marriage. If neither of you are willing to fight for the relationship anymore, it may not be worth it.

Working on the Separation

• Consider a therapist: If you’re having enough trouble to want a separation, a third party mediator, such as a therapist can help. A therapist will help you to discuss your problems without getting so heated and hopefully work on finding common ground. A therapist will expect both of you to be emotionally present, working hard to put your relationship first. Ask around for recommendations for a couple’s therapist from friends you trust. More than likely, some of your friends have had problems, too, and may have seen someone who’s good for you and your spouse, too. A therapist can be objective about your relationship, whereas it’s harder for the two of you to be objective about something that you are both so emotionally invested in. Therefore, suggest to your partner that you consider going to a therapist. Another option for a mediator is a pastor.

• Get a lawyer: A lawyer is also important when you’re separating. Once again, it’s good to ask your friends who’ve been through a divorce if they have any recommendations for lawyers. A lawyer will go over the legal ramifications of your separation so you know what to expect if you do get a divorce. In addition, your lawyer can act as a mediator for you if you need one. You can also look up reviews of lawyers online to find one that most people have been happy with. Meet with the lawyer before deciding to engage him or her as your personal lawyer. Ask the lawyer if they’re willing to act as a mediator if you need it and how often they’ve worked with people on a trial separation. Plus, you want to make sure you connect with your lawyer and trust him or her as a person. As noted in the step about laying out ground rules, it’s important to remember that what you do in your separation can affect your divorce. What you decide about who takes care of the kids now, for instance, can be used to decide who gets custody of your kids.

• Continue to talk: If you have a trial separation without spending any time talking, you won’t be able to work through your problems. If you really want to get back together, you’re going to need to spend time talking through your problems, preferably with a third party. For instance, you could try talking on the phone twice a week. Consider addressing specific issues each time you talk. Talking on the phone cuts out some of the emotional charge in the situation. If you’re really emotional, you may want to start with emails and the move up to phone calls. If you’ve engaged a therapist or you’re visiting with a pastor, that can be one way you can continue to connect with each other.

• Keep it to yourself: Of course, telling your close friends and family that you’ve separated is appropriate. However, now isn’t the time to post a huge announcement on social media. You are trying to decide if things will work out, and having the whole world (or at least all your friends, including the person you never liked from high school) weigh in isn’t going to help. What happens going forward should be between you and your spouse, and possibly a good therapist.

Sorting Out Yourself First

• Sort out your feelings: You’re obviously feeling like something is wrong with the relationship. However, you need to be able to put your finger on why, not just put it in general terms. That needs you need to spend some time thinking about what you think has gone wrong with the relationship. Some areas you can think about are whether you still have fun together and laugh and whether you still have similar goals. Sex is also an area that can cause problems. Another area you can look at is the way you communicate. Has communication broken down in your marriage? Can you identify where it started breaking it down? Also, consider the ways you care for each other. Happy couples enjoy doing things for each other. If you find you are doing all the work in the relationship, both the emotional work and the physical work of living together, that could a large part of the problem–your spouse isn’t holding up her or his end of the marriage.

• Be able to lay it out in concrete terms: That is, you have figured out why you’re unhappy. To be fair to your spouse, you need to be able to lay out in exact terms what’s not working for you. The best way to do that, once you figure out what’s wrong, is to give concrete goals and ask for the same in return. For instance, maybe you’re unhappy because you don’t feel like your spouse pays attention to you anymore. A concrete goal would be to spend alone time together at least twice a week. Come up with 3 to 4 concrete goals that you can discuss with your spouse.

• Decide what you want from the separation: That is, are you almost certain you will get a divorce after the separation? That’s something you need to be up front about. However, if you really want a separation to help you decide if you still want to be in the relationship, it’s okay to bring that to the table, too.

• Have a time frame in mind. In many cases, couples who have a trial separation set a certain time frame. When that time frame is up, the couple either decides to get back together or to divorce. One therapist recommends 3 months as a good time frame, but you should have a time frame in mind when you talk to your spouse, along with a good justification for that amount of time. For instance, you might feel like half a year is better to figure out your feelings. Alternatively, you may want to separate for 3 months to give your spouse a chance to go through rehab. If they don’t, you may choose to divorce at the end of that period. Of course, you can reevaluate after the time period. If you’re both still unsure, you can agree to another length of time.

Separation Lawyer Free Consultation

When you need legal help with a family law matter, whether that is a separation or divorce, child custody or child support, a prenuptial agreement or post nuptial agreement, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.

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8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
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Criminal Defense Lawyer Park City Utah

If you have been charged with assault, contact an experienced Park City Utah criminal defense lawyer. It is a serious charge and you can be sent to jail. Your liberty is at stake.

The crime of assault can range from simple assault, which is usually a misdemeanor offense, to first-degree assault, in which the defendant causes serious physical injury to the victim. A simple assault is generally defined as an unlawful attempt to injure the victim, coupled with the present ability to commit the violent act. This means that the defendant acts in a threatening manner toward the victim and takes steps toward accomplishing the goal of injuring the victim. Under these circumstances, although the defendant does not actually physically harm the victim, the defendant’s threatening conduct nevertheless causes the victim to be in reasonable fear of receiving a physical attack (a battery). When examining whether the defendant’s conduct rises to the level of a simple assault, several factors must be considered. First, words alone, no matter how abusive or threatening, are not sufficient to constitute an assault. The criminal law does not punish people for having bad thoughts or expressing them to others. If criminal liability were premised on words alone, it would simply be too difficult to prove that the defendant uttered the statements with the intent to carry out a crime as opposed to bluffing or joking with the victim. There must be some other conduct accompanying the words to assist in determining and proving the defendant’s actual intent. Other conduct evidence might include threatening gestures that accompanied the defendant’s words, the presence of a weapon and/or the physical proximity of the defendant to the victim.

Other circumstantial factors that may be considered when determining whether a victim’s fear of a battery is reasonable include the relative sizes of the victim and defendant and any previous relationship between the defendant and victim that might have contributed to the atmosphere of fear.

Assault with intent to Inflict Serious Bodily Injury

In some cases, the defendant’s threatening behavior may actually result in bodily harm to the victim. In most jurisdictions, the seriousness of the victim’s injury will determine the degree of the assault charge. For example, if a defendant acts with intent to cause serious physical injury to the victim and does, in fact, cause such injury, he may be charged with assault in the first degree. The serious injury, in most cases, is caused by the defendant’s intentional use of a deadly weapon or dangerous instrument against the victim. However, a serious injury may also result when the defendant engages in reckless conduct that creates a grave risk of death to the victim (e.g., operating a motor vehicle in a reckless manner).
A deadly weapon or dangerous instrument may include “traditional” weapons such as guns and knives, but may also include “nontraditional” items that can be used in a dangerous manner such as bricks, tire irons, boiling water, heavy boots, and vehicles. The selection and use of such deadly weapons or dangerous instruments to attack victims usually provides strong circumstantial evidence of defendants’ intent to cause serious physical injury to their victims.

One question that frequently arises in assault cases is whether the victim has suffered a physical injury that is serious enough to warrant a charge of first-degree assault. Generally speaking, to constitute a serious physical injury, the injuries must create a substantial risk of death to the victim. When determining whether the victim has suffered a serious physical injury, the trier of fact will be required to consider the nature of the injury, any required hospitalization or surgery, the likelihood of future complications and any permanent injury, disfigurement or disablement to the victim.

In many first-degree assault situations, because the defendant’s conduct is so life-threatening and creates such a substantial risk of death to the victim, the government may also charge the defendant with attempted murder. For attempted murder, the government must prove that the defendant intended to kill the victim and took a substantial step toward accomplishing that objective. For example, if the defendant angrily and viciously wrestles the victim to the ground and begins pounding the victim’s head into the concrete pavement (a dangerous instrument), this conduct would likely be considered first-degree assault. However, the same conduct might also warrant a charge of attempted murder if the nature of defendant’s conduct demonstrates an intent to kill (e.g., using a dangerous instrument such as concrete) and a substantial step toward accomplishing that objective (e.g., pounding the victim’s head into the concrete). The defendant’s intent to kill can be demonstrated circumstantially by examining the type of weapon used as well as the nature and extent of the victim’s injuries.

Assault with Intent to Commit Other Criminal Offenses

A defendant may cause injury to a victim during the course of and in furtherance of the commission of another offense. For example, a defendant may initially intend to commit a robbery and during the robbery attempt, he may cause physical injury to the victim. In that case, the defendant may be charged with assault with intent to commit robbery. This charge covers conduct that occurs when the defendant causes some level of injury to the victim in the process of furthering another crime.

Arson

The elements of the crime of arson include using an incendiary device or explosive with the intent to cause damage to property or vehicles. An incendiary device is one that is designed to explode or produce combustion upon impact. Property can include buildings, whether occupied or not, as well as items attached to the ground such trees and shrubbery.

Additionally, since a significant number of arsons are committed for the purpose of collecting insurance proceeds, many arson statutes specifically criminalize “burning for profit” conduct.

When proving the elements of arson, the government must first demonstrate that the fire or explosion was caused by a human act rather than, for example, an electrical malfunction. Once it is determined that the fire was caused by a human act, the government must then prove that the fire was started with the specific intent to damage property as opposed to an act of carelessness (e.g. carelessly discarding a match or cigarette). Of course, each of these elements may be demonstrated by circumstantial evidence. Using careful arson investigation techniques, fire officials can usually determine the origin of a fire or explosion. For example, if the investigation reveals that the fire began with the aid of an accelerant (such as gasoline) not typically located on the premises, then that provides some circumstantial evidence that the fire may have been started unlawfully.

Linking the defendant to the incendiary device and proving the necessary mental state may be accomplished by showing that the defendant had the means and opportunity to commit the crime. For instance, the government may present evidence that the defendant purchased large quantities of gasoline or other materials to make an explosive or incendiary device shortly before the fire. Or, they may present witnesses who observed the defendant near the location of the fire shortly before it occurred.

Proof of a motive can also significantly bolster the government’s circumstantial evidence in an arson case, although it is not an element of the crime. Proving the basis for a motive to unlawfully burn property might require examining the defendant’s financial condition and potential to collect insurance proceeds. Additionally, in some cases, an unlawful motive might be revealed by exploring prior disputes or threats by the defendant against the owner of the property or the property itself. Each of these facts alone may not be sufficient to establish defendant’s guilt. But, when taken together, they may paint a strong circumstantial evidence picture from which the judge or jury may draw inferences as to the defendant’s intent to unlawfully burn property.

An experienced Park City Utah criminal defense lawyer can help you fight an arson charge.

Drug Offenses

Most drug statutes make it a crime to knowingly manufacture or deliver or possess with intent to manufacture or deliver controlled or counterfeit controlled substances. Controlled substances include, among other things, heroine, cocaine, morphine, methamphetamine, LSD and marijuana. Possession of controlled or counterfeit controlled substances may be actual physical possession or “constructive” possession. Constructive possession means that possession will be implied if the defendant has the intent to possess the illicit substance and maintains control and dominion over the premises where the controlled substances are located. The mere presence of controlled substances on defendants’ premises is not enough, however, particularly if it is a location that is well traveled or occupied by others. There must be sufficient proof that the defendants had knowledge of the presence of the controlled substances and intended to possess the substances even though they may not have been in their physical possession. Thus, if the controlled substances are located in an area of the defendants’ home or car, where they have exclusive dominion or control, this may constitute possession by the defendants, by virtue of the location of the drugs on the defendants’ private property.

In drug-dealing cases, if defendants are apprehended before the actual delivery of the controlled substance, proof of intent to deliver controlled substances is generally demonstrated by circumstantial evidence. The most compelling circumstantial evidence on this issue is the amount of controlled substance defendants have in their possession at the time of arrest. The larger the amount, the more likely it is that the defendants intended to deliver some portion of it to others, rather than keeping it for personal use. Even if the defendants possess a small amount of the controlled substance, they can still be convicted of possession with intent to deliver, but much more circumstantial evidence will be necessary. Thus, in addition to possession, the government might be required to produce evidence of contacts or appointments made for purposes of delivering the controlled substances. Other circumstantial evidence of possession with intent to deliver might include the type of packaging used for the controlled substance, large sums of money or weapons in the defendants’ possession or the presence of other drugs or drug paraphernalia in the area.

If there is insufficient evidence of intent to deliver, then defendants can still be charged with the lesser offense of possession of a controlled substance. Simply proving that the defendants had knowledge of the controlled substance and that it was in their immediate and exclusive control is sufficient for a charge of drug possession. Note here again that knowledge of the controlled substance alone is not enough. The defendants must also have immediate and exclusive control over the controlled substance. Just as in the case of possession with intent to deliver, simple possession of a controlled substance may either be actual or “constructive.”

Interestingly, most drug offense statutes also make it crime to possess with intent to deliver or merely possess counterfeit controlled substances. At first glance, this seems an unusual criminal offense because counterfeit substances don’t cause any real social harm. Nonetheless, one rationale for these provisions is that they allow the government to bring cases against defendants in instances when undercover officers pose as drug purchasers and buy counterfeit controlled substances instead of the “real thing.” Without statutes outlawing delivery or possession of counterfeit controlled substances, the drug seller could not be prosecuted because what he sells the undercover officer is not actually a controlled substance as defined by the statute. A similar result would occur if the officer arrests an individual for simple possession of drugs only to later discover after testing that the drugs are in fact counterfeit.

One of the major difficulties associated with prosecuting defendants for delivery or possession of counterfeit controlled substances involves distinguishing between possession of innocent substances and possession of counterfeit controlled substances. In other words, how can we tell whether the defendant intended to possess counterfeit cocaine or was merely possessing an “innocent” substance such as flour? Generally, the counterfeit substance must be packaged and presented in such a manner that a reasonable person would believe that using the product would produce an effect similar to that of the actual controlled substance. Some factors that will be considered when charging the defendant with delivery or possession of counterfeit controlled substances include the type of storing and packaging used for the counterfeit substance, any representations made by the defendant as to the nature of the substance, and whether the defendant was attempting to exchange the counterfeit substance for something of value.

Drug crimes

are serious offenses. If you have been charged with a drug crime, you should immediately get in touch with an experienced Park City Utah criminal defense lawyer.

Park City Utah Criminal Defense Lawyer Free Consultation

When you need legal help with a DUI charge, drug crimes, traffic violations, white collar crimes or other criminal charges against you in Park City Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.

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

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At What Age Should You Make A Last Will and Testament?

If you have a child under the age of 18, you need a will that names a legal guardian or guardians in the event of your and the other parent’s death. If you don’t name a legal guardian before you die, the court will choose who will care for your children, with no input from you and don’t assume that the court will automatically grant custody to aunts, uncles, or even grandparents of the child. Also note that legally speaking, the surviving parent has the right to custody if the other dies, so if this is something you don’t want, you should plan for this ahead of time as well.

Moreover, when drawing up your will, be sure that you and the other parent are on the same page regarding the legal guardian so you can include the same name in both of your wills to avoid later problems. Also, think about naming an alternate guardian should your original choice be incapable of taking on the responsibility for any reason. While the choice of a child’s legal guardian is highly personal, there are some considerations that everyone should think about, and they include the following:

• Should you consider co-guardians?

If your preference is to have your children raised in a two-person home, be sure to name each member of the couple as a co-guardian. For example, if you would like your sister and brother-in-law to jointly raise your children, include them both as co-guardians.

• How old is your chosen guardian?

Many people immediately think of their own parents for guardians of their children, but consider the age and general health of your chosen guardian and whether he or she will be able to handle the physical demands of raising children. If your children are nearing the age of majority, this may not be as much of a concern, but if you have younger children, it could be a very important consideration.

• Where is your chosen guardian located?

Are they in the same town as you? A few towns over? Another state? How far away are other family members and important people in your children’s lives? Will your children have to deal with moving to a new location in addition to the loss of their parent(s)?

• Is your chosen guardian up to the task financially?

As a parent, you know that raising children is expensive, so while ideally, you will have prepared financially for your children ahead of time with estate planning, be sure to consider your chosen guardian’s financial resources as well.

• Does your chosen guardian share your personal and religious values?
You probably would prefer a guardian who shares your basic values and goals as a parent so that your children will be raised similarly to the way you would have raised them. If religious doctrine or alternately, not teaching religious doctrine is particularly important to you, you should consider this when choosing a guardian. Think also about whether they can handle the responsibility of raising your child as well as what kind of parent they would be—are they patient, kind, and mature? Do they already get along well with your children?

• Make sure you have a heart-to-heart with the chosen guardian.
Before you make this decision and include a named guardian in your will, sit down and talk with your choice. First and foremost, you want to make sure that he or she will agree to becoming the guardian of your child should anything happen to you, but it is also useful to discuss all the considerations discussed above so you know for certain the answers to those questions. Part of your job as a parent now is to decide who you would want to care for your children in the event of your death. Imagine if writing a last will and testament were a pre-requisite to graduating from high school. The graduate walks across the stage, hands the completed will to the principal, and gets the diploma in return. It might sound strange because most 18 year olds have little in terms of assets but it’s a good idea for all adults to draft a last will and testament. Graduation from college is another good milestone to use as a reminder to create an estate plan. If you haven’t created a will by the time you marry or are living with a partner in a committed relationship then it’s fair to say you are overdue.

Requirements for Making a Will

Anyone of legal age (18 years old in most states) and sound mind can make a Will. If you have property that you wish to distribute at the time of your death, you should have a Will. When you make out your Will, you’ll need to designate beneficiaries and an executor. The beneficiaries are the people or organizations who receive your property. The executor is the one you designate to see that your wishes are carried out.

Legal Age

In most states, a minor becomes an adult at the age of 18. Once he or she reaches that legal age, certain rights and privileges are granted. That holds true for most states when it comes to making a Will. Forty-seven states currently require the Will maker to be at least 18 years of age. A number of states make provisions for those younger than 18 years of age to write a Will if they are married, economically independent, or a member of the armed forces.

Mental Competence

“Being of sound mind and body” is a phrase made famous by movies and television versions of Will making. And it’s true, mental competence is an essential factor in making sure your Will is legally binding. Being mentally competent means that you know you are executing a Will, and are familiar with your property as well as your family and descendants. Witnesses are required to sign the Will and one of their functions is to validate your mental well-being. If is it anticipated that dissatisfied heirs might contest the Will based on mental incompetency, extra steps should be taken at the time of the signing of the Will, such as a doctor’s assessment.

Distribution of Property

The main purpose of a Will is to make provisions for the distribution of your property after your death. In general, you can designate anyone you wish to be your beneficiaries and you can distribute your assets in any fashion, but there are a few exceptions. Many states have provisions that provide the surviving spouse with the ability to elect to take a defined portion of the estate regardless of the provisions in the Will. As we have seen many times in literature and drama, unusual or excessive provisions can be attached to an inheritance. For example, someone includes a Will provision that the first child to bear a child gets the largest share of the estate. While this makes for good storylines in fiction, most probate courts in the real world frown on such provisions. A dissatisfied beneficiary may decide to contest the Will in court.

Leaving Property to Spouses

Most of the time, spouses are the major beneficiary in a Will. Even so, there are laws in all states that protect the surviving spouse from being disinherited. Some allow the spouse to take an elective share of the estate, usually one-half or one-third, regardless of the provisions in the Will. One method to disinherit a spouse may be through the use of a premarital agreement, but the courts are apt to closely scrutinize such agreements to make sure that the agreement was signed in good faith and with full disclosure of assets. It’s possible to put limitations on the property that you leave to a spouse through the establishment of trusts for the benefit of your spouse that come into existence after you die. You should consider the following factors in deciding what kind of trust is best for your circumstances:

• the possibility that your spouse’s needs may increase in the future

• the manner of living to which your spouse is accustomed

• the ability of your spouse to provide for his or her own needs

• the ability of your spouse to manage the trust assets

• the possibility that your spouse may remarry and the affect the marriage may have on your children or other beneficiaries.

Providing for Minor Children

Many times a spouse is given the entire estate with the expectation that he or she will provide for minor children. That expectation is not always sound however, especially when the surviving spouse is not the parent of the children, or if the spouse is not available to care for the children at the time of your death.

One of the most common practices under these circumstances is the establishment in the Will of a minor children’s trust. The trust provides financial support for the children until they become adults, at which time the remaining assets of the trust are distributed to them. It is important to carefully select the trustee, who will manage the trust and make the distributions to your children. The trustee will work closely with the person you’ve named as guardian to raise your children. In many cases, the trustee and the guardian are the same person.

Written Requirements

Most Wills are documented with the written word. These are usually formatted with typewriters or word processors. If properly signed and witnessed according to the requirements of the state where signed, these are legally valid in all states. However, there are other types of Wills.

Holographic Wills

Some states recognize Holographic Wills. These are handwritten, un-witnessed Wills, signed only by the Will maker.

Oral and Form Wills

A few states still recognize Oral Wills, under certain conditions. Others offer a standard Will form, where you just fill in the blanks.

Video Wills

A relatively new type of Will is the Video Will, where the Will maker usually reads his or her Will out loud before a video camera. Videotaping a Will can help avoid a Will contest by showing that the Will maker was competent and following proper signing formalities. Keep in mind that many states will not recognize a video Wills as a substitute for a written Will; the Will maker should do both.

Signing Requirements

In order to make your Will valid, you must sign the document in the presence of at least two witnesses. They, in turn, must sign it as well, in your presence and in the presence of each other. At the time of the signing, most state requires that you be mentally competent and at least 18 years of age.

Witnesses

Witnesses are very important to the validity of a Will. The signature of at least two witnesses is required in order to affirm that you were mentally competent and under no duress at the time you executed the Will. Each witness must understand that they are witnessing a signing of a Will and they must be competent to testify in court. Witnesses should sign in the presence of each other. In many states, a witness cannot be a beneficiary of the estate. States have adopted these laws to prevent any conflict of interest from those who may be in line for gifts, or who may benefit from your death. Some states will allow for a beneficiary to act as a witness, but in doing so, that witness may lose some or all of the property that he or she would have to inherit.

How to Sign Your Will

Everyone puts off making a will. So once you’ve actually done the heavy lifting decided who you want to inherit your property, who you want to serve as your executor, who to name as guardian for your children, and gotten all of these decisions written down in a will, feel free to give yourself a hearty pat on the back. There’s just one thing: You’re not done yet. A will, unlike almost any other legal document, must be signed (executed) in a special little ceremony before it is valid. Because unlike other legal documents, if there’s ever a dispute about what it means, the person who wrote it won’t be there to explain what he or she intended. So over the centuries, a ritual has grown up around the signing of a will. It entails a series of safeguards to make sure that the document is genuine, that it says what you want it to say, and that you knew what you were doing. It’s not hard to sign a will correctly, in a way that will ensure that it will be accepted as valid later. But unfortunately, it’s not uncommon for will-writers or their lawyers to make mistakes in the will-signing process, potentially invalidating a will. Here is how to make sure your will is a valid, binding legal document.

• Proofread the Will: Before you do anything else, sit down and read the document slowly and carefully. Do these before you gather with witnesses to actually sign the will you can’t pay careful attention if you are distracted or feel hurried. Make sure that you understand everything the document says and that it reflects your wishes. Check the spelling of everyone’s name. If you left property to people in percentages or fractions, add them up to make sure they equal 100. Make sure that all the pages are numbered correctly and that there aren’t any big blank spaces. If anything needs to be changed, make your corrections and print out a new, clean copy of the document. Never cross out or add any language with a pen, or cover anything with correction fluid. The document should be perfect.

• Arrange for Witnesses: Every will signing ceremony needs two witnesses, who will watch you sign your will and then sign it themselves. If you’re signing the will at an attorney’s office, the attorney will probably bring in witnesses employees of the law firm or someone who works next door. If you’re recruiting your own witnesses, be aware that not just anyone will do. For starters, witnesses must be adults, at least 18 years old. It’s also best to pick witnesses who are less than 18 years old.

• Don’t inherit anything under the will: This is a requirement in some states, but have disinterested witnesses are always a good idea; so that they don’t have any incentive to say that you were of sound mind if you weren’t.

• Know you: Part of a witness’s job is to state, in writing, that the will-maker appeared to have “testamentary capacity” that is, was able to make rational decisions about leaving his or her property. Someone who knows you is in a better position to evaluate that, especially if someone might raise questions about your mental state.

• Will be available to testify if necessary: When your will is eventually submitted to the probate court, witnesses may need to give a written statement, or testify in person, that they saw you sign and that you appeared competent.

• Arrange for a Notary Public: A will doesn’t have to be notarized to be valid. But in most states, you’ll want to make what’s called a “self-proving affidavit” part of your will and the affidavit must be notarized, which means that you’ll need a notary public at your will signing ceremony. If you sign your will in a lawyer’s office, the lawyer will provide a notary public. If you’re arranging this party on your own, you can probably find a notary public at a bank, real estate office, or package-mailing service. It’s worth it to go to the extra trouble of getting a notarized self-proving affidavit, because it will simplify the process of getting your will admitted to probate after your death. When your witnesses sign the affidavit, they swear that they watched you sign the will and that you appeared to have the mental capacity necessary to make a valid will. After your death, the witnesses won’t have to submit further statements or come to court to testify; the affidavit will do the job.

• Gather Everyone and Explain What’s Going On: Everyone you, witnesses, notary should be in the same room for the signing ceremony. If you’re not, it might invalidate the will, depending on how strict your state’s law is. If everyone isn’t already acquainted, they should be introduced to each other.

• Have the Witnesses Initial and Sign the Will: In your presence, each witness should initial every page, just as you did (and also in blue ink). They also sign the “attestation” at the end of the document, which states that they saw you sign the document and that you appeared to do so of your own free will, and put down their addresses.

• Sign the Self-Proving Affidavit: Before your witnesses sign the self-proving affidavit, the notary may put them under oath; the notary should know what procedure is required by state law. The notary will then ask the witnesses to sign the self-proving affidavit. You can also ask the notary to ask the witnesses to say, out loud, that they understand and agree to each of the points in the affidavit.

• Store the Will Safely: Now that you’ve gone through the whole will signing ceremony and have a legally binding document, don’t lose it! Put it in a safe place, and make sure your executor knows where to find it when the time comes.

Estate Planning Lawyer Free Consultation

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Real Estate Lawyer Heber City Utah

Construction contracts

are complex. Never attempt to prepare a construction contract without the services of an experienced Heber City Utah real estate lawyer or sign one for that matter. You could get into a big mess. Always use Utah Real Estate Lawyers when it comes to real estate in Utah.

Bonds in general involve a payment by the contractor to a third party who is able to guarantee certain behavior or performance by the contractor. In the event the contractor fails to perform in the way specified, the bonding agent or surety is obligated to pay the party outsourcing for the service a set payment. Bonds are essentially forms of insurance. As with all insurance, there is a potential for abuse. For example, if a contractor has purchased a performance bond, there may be an increased tendency on the part of the property owner to reject the work or products produced under the contract for less than valid reasons. In cases where the value of the bond is greater than the value of the final product, this temptation is particularly strong. This situation is most likely to happen in cases where there is a good likelihood that the product or service being provided may be quickly outdated. In a situation where the product is no longer serviceable by the time it is delivered, the property owner may look for an excuse to find fault with the performance of the contractor and invoke the protection provided by the bond. Specific types of bonds include (1) performance bonds that require the contractor to perform as specified in the contract, (2) bid bonds which insure that the contractor accepts the contract that has been bid upon, and (3) payment bonds that insure payment for services rendered or goods delivered. If you are a construction contractor and you have been asked to sign a contract, consult an experienced Heber City Utah real estate lawyer.

Liquidated damages provisions require the supplier or service provider to pay the property owner (buyer) a specific amount for the failure to provide a level or quality of service that is specified in the contract and that results in some level of damage to the property owner. Liquidated damages can be assessed for each day beyond the delivery date that the supplier fails to deliver on the contracted product or service, for unusable goods or services, and for services that have been judged unacceptable by an agreed upon measure of service quality.

Liquidated damages in many cases can be assessed against or deducted from the payments that the property owner would make to the contractor. Property owners need to be careful in crafting liquidated damages clauses. The courts generally do not allow liquidated damages provisions to be used as a means to penalize contractors. Instead, such provisions are designed to compensate the property owner for actual damages and must therefore meet a standard of being reasonably connected to actual damages experienced. For example, imagine that a liquidated damages clause in a construction contract required that the contractor provide a financial report by the first of each month or, alternatively, pay the property owner $15,000 (or have the property owner’s payment to the contractor reduced by $15,000). One month the contractor fails to provide the report by the first of the month, but does deliver the required report by the fifteenth of the month. In this case, unless the property owner could prove that the delay of the report actually caused approximately $15,000 worth of damage, the courts would probably rule that the amount of the claim was out of proportion to the extent of the contractor’s performance failure and not allow a liquidated damages claim. One potential consequence of the court ruling that a liquidated damage clause is unreasonable is the complete setting aside of the clause. In such a case, the property owner could be left without the ability to be compensated for the contractor’s poor performance. Because reasonableness is the standard for judging the validity of a liquidated damages clause, property owners need to develop methods for assessing damages in proportion to the whole value of the contract or contract payment.

No damages for delay terms essentially excuse the property owner or buyer from responsibilities for delays that the property owner itself causes. If the work to be done requires a high level of contribution from the property owner or a substantial amount of coordination between the property owner and the contractor, the no damages for delay clause represents a major shift in risk from the property owner to the contractor. Contractors, for the most part, are unwilling to assume such a risk without the potential for higher-than-normal levels of compensation. No damages for delay clauses are probably only appropriate when the property owner must be sure that the work will be completed on time even if the property owner’s own personnel are unable to facilitate the work in the expected manner. Property owners who find themselves requesting this type of clause could perhaps make a larger contribution to property owner efficiency by notifying responsible officials that improvements need to be made in operations.

Clauses related to consequential damages control for substantial unforeseen and undesirable results of using a product or service. For example, the property owner may want to purchase some new water valves at a substantially lower cost than normal. The valves themselves may only cost a few hundred dollars, but the failure of a single valve could result in water damages in the millions of dollars. In reading the sales contract the property owner is likely to notice that the valve’s manufacturer has included a clause that requires the purchaser to forego suing for consequential damages or the damages that result from the failure of the part. In technologies that are subject to the potential for large consequential damages, such clauses can explain large differences in price that are otherwise unexplainable. Because the Uniform Commercial Code generally allows for consequential damages, the typical contract language in this area will be a disclaimer of such damages.

Assignment clauses are used to control for the possibility of a contractor winning the contract award and then assigning the work to another service provider.

Force majeure is a legal doctrine that excuses contractors or the property owner from performing their contracted duties because of conditions beyond the control of the respective parties (e.g, bad weather, vehicle breakdown, civil disturbances, etc.). Force majeure clauses are typically included as a boilerplate in most contracts. In some cases, however, property owners need to be careful not to include such clauses. When the point of the contract is to provide for emergency services (e.g, to back up service providers who have failed to deliver because of conditions beyond their control), force majeure clauses should either not be included or should be qualified so as to exclude conditions that the service provider is expected to overcome.

Clauses related to being an independent contractor are often included in contracts as a means of establishing that the contractor cannot claim benefits (e.g., overtime, etc.) to which property owner’s employees are entitled.

Requirements contracts clauses specify that the property owner is only contracting for services as required, that the payments or contract value is only estimated, and that the property owner does not guarantee the amount of work or requirements over the course of the contract. These clauses are commonly used in conjunction with services, such as snow removal, vehicle repair, tree removal, emergency response services, and facilities renovation work, for which a service level cannot be easily estimated.

Risk-related clauses are those that attempt to appropriate the risk levels to be borne by the parties to the contract. Not every contract involves every type of risk. Good contract management calls for a close fit between the type and level of risk involved in the contract and the type and degree of risk-management contract terms that one intends to require.
Assessing the potential for risk is not always easy, but experience suggests that a number of conditions are related to risk, including such factors as the length of the preexisting contractual relationship, the reputation of the contractor, the complexity of the work, the reliability of the subcontractors, and so on.

While it may be relatively easy to assess the potential for higher-than- average risk in a contract, it is often more difficult to decide how to manage this risk. This is the case because each of the risk-management clauses outlined has a cost. The cost is rarely explicit or itemized. Instead, it is usually included as part of the overall contract payment cost. Theoretically speaking, the contractor could lower the contract price for every risk-management clause or behavior that the property owner decides not to require. Sometimes the theory is evident in real contract situations. For example, if the property owner decides not to require a performance bond, companies that bid on the contract should be able to lower their price by the cost of the performance bond. While this may be the case in uncomplicated bidding situations (e.g., where all the bidders are not already bonded and where all performance bonds are nearly equal in price), the risk-for-cost tradeoff is more likely to occur in an indirect, rather than direct, manner. For example, the property owner may decide that a performance bond that is regularly needed in a particular type of work will not be required in a particular instance of the work being contracted.
Payment Terms or Provisions. These clauses would outline the payment type (e.g., fixed, reimbursement, etc.), the schedule of payments, and the maximum and minimum payment amounts.

Contract Change Provisions

Most contracts will specify a method by which the parties agree to make needed changes to the contract. Sometimes change clauses are as simple as a statement that the parties can change the contract by mutual agreement. At other times, it may be more efficient to allow one party to unilaterally make specific changes or a certain number of changes within a certain time frame. For example, in complex building projects, the project manager may be given authority to change certain material specifications as long as they are of equivalent or better quality.

Contract Suspension Provisions. There may be times when the property owner would want to have a right to suspend the work that has been contracted. For example, if the property owner plans to pay for a project out of expected sales receipts, a situation may occur where the property owner fails to collect the expected level of sales receipts according to schedule. If this schedule is closely tied to the project itself and the property owner has not allocated any other resources to the project, it may be necessary to suspend the contract until the necessary funds are collected. Contract suspension, however, is usually not a cost-free activity unless this is clearly specified. Without provisions for the orderly suspension of work, the cost of suspension to the contractor (e.g., in terms of lost work, funds expended on subcontractors and materials, warehousing costs, etc.) can form the basis for a claim against the property owner. Contract suspension provisions typically include a limit on the amount of time in which the contract can be suspended, as well as specification of some compensation to the contractor for the suspension costs incurred.

Contract Renewal Provisions. Contract renewal provisions are important in keeping the cost of property owner contracting down. Contract renewal provisions allow the property owner the option of renewing the contract at the current price without having to bear the cost of rebidding the contract. It is often the case, however, that because of inflation a contractor will not be interested in the renewal offer at the same price. If this is likely to be the case and the property owner wants to keep the renewal option alive, the contract will need to include a price adjustment or escalator that will allow the contract value to be maintained in the face of price or wage inflation.

Speak to an experienced Heber City Utah real estate lawyer. The lawyer can prepare a customized construction contract for you.

Heber City Utah Real Estate Lawyer Free Consultation

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Federal Crimes

The great majority of criminal indictments are state arraignments, for infringement of state law, in state court. In any case, simply are there are state laws against taking part in criminal conduct, there are additionally federal criminal laws, gone by Congress. From a certain perspective, federal criminal laws are attached to some federal or national issue, for example, interstate dealing in stash, federal expense extortion, mail misrepresentation, or violations perpetrated on federal property. Some criminal demonstrations are violations only under federal law. Be that as it may, numerous criminal demonstrations, for example, bank theft, are wrongdoings under both federal and state law and might be indicted in either federal or state court. Most wrongdoings that ring a bell – murder, theft, thievery, illegal conflagration, burglary, and assault – are infringement of state law; state lawmakers have utilized their general police capacity to control the lead and the state has locale (the ability to choose the case).

There are less classes of federal violations in light of the fact that while state legislators can pass pretty much any law, as long as it is sacred, federal officials can pass laws only where there is some federal or national enthusiasm in question. For instance, duplicating is a federal offense since it is the federal government’s obligation to print cash. By and by, federal intrigue is in all respects extensively characterized. The federal government has locale over the accompanying violations:

• Any wrongdoing that happens on federal land or includes federal officers, for example, a homicide in a national backwoods or on an Indian reservation, a burglary on an army installation, or an ambush against a Drug Enforcement Agency (DEA) specialist,

• A wrongdoing where the litigant crosses state lines, for instance, an individual who takes a hijacking unfortunate casualty from Oregon to Nevada,

• A wrongdoing where the criminal lead crosses state lines, for instance, an Internet misrepresentation plot the has unfortunate casualties and culprits in various states.

Migration and traditions infringement, for example, bringing in youngster erotic entertainment or global human dealing. There are numerous distinctions in state and federal criminal arraignments. Federal judges are delegated for life by the president. Indeed, even state court makes a decision about who are selected by the representative must sit for re-appointment. Federal violations are arraigned by Assistant U.S. Lawyers and researched by federal officers, for example, FBI or DEA operators. State violations are explored by region sheriffs, state specialists, or neighborhood cops, and arraigned by state head prosecutors or city lawyers. When in doubt, in light of the fact that there are far less federal arraignments, cases in federal court can take more time to determine.

In spite of the fact that it doesn’t occur frequently, there are no legitimate bars to arraignment in both state and federal court for a similar criminal act on the off chance that it disregards both state and federal law. Shouldn’t something be said about the Double Jeopardy Clause? While the sacred denial against twofold risk for the most part bars being attempted twice for a similar wrongdoing, there is an “independent sovereign” exemption. Since the state and federal governments are independent, the Double Jeopardy Clause does not make a difference. For instance, in 1992, a jury in California state court cleared four Los Angeles Police Department officers of beating Rodney King at a traffic stop. Late, federal examiners accused the officers of abusing King’s sacred rights and two officers were sentenced. In any case, as a down to earth matter, double indictments like this are uncommon, since assets at both the state and federal dimension are valuable. Like state violations, the punishments for federal wrongdoings change. There are warning federal condemning rules, and by far most of federal judges pursue the rules when condemning litigants. When in doubt, federal punishments are longer that state punishments for comparative wrongdoings. Specifically, federal medication violations convey cruel obligatory least sentences. Individuals indicted for federal wrongdoings and condemned to jail will go to federal jail, rather than state jail.

At the point when accused of violating a federal law, there are a wide range of touch focuses in the legitimate procedure. As they can differ from venture to venture, there is no reserve for the direction of an accomplished federal criminal lawyer. The starting advance in the process is the grievance, trailed by the issuing of a capture warrant pursued by the real capture. The examiner will issue a protest, which incorporates the reasons, or claims, for a charge and likely reason for the legislature to capture the supposed guilty party. Following the worry, the guilty party will at that point show up under the watchful eye of a judge. At this progression, the judge will decide whether there is sufficient proof to arraign the person, to advise the supposed guilty party regarding his central rights, and to set bond. At this progression of the procedure, the individual charged will likewise need to hold a lawyer. A hearing to choose if the guilty party ought to be let out on bond is commonly held inside 72 hours of capture. Inside 10 days of the capture, a conference in a federal Court will happen for the investigator to show proof that the blamed carried out the wrongdoing.

A federal defense criminal lawyer can likewise put on proof nullifying reasonable justification. The U.S. arraigning lawyer can record a prosecution rather than a grievance. In this circumstance, the arraigning lawyer at first displays the proof to the fabulous jury. The terrific jury at last chooses whether to arraign a federal criminal case. Next, the federal arraignment will happen, where:

• The blamed formally hears the charges

• The respondent learns of his rights

• The blamed enters a request for either blameworthy or not liable

• The preliminary date put on the court docket

The case will at that point go to preliminary, except if a request understanding is come to. The U.S. examiner must demonstrate that the respondent is liable past a sensible uncertainty. The condemned will be rebuffed by the court whenever found blameworthy. Sentences can incorporate correctional facility time, probation, fines, or any mix. The last stage is an intrigue. The guilty party must record a Notice of Appeal inside ten days subsequent to being condemned. Be cautious when making request bargains – they may require the litigant to surrender his entitlement to claim. An accomplished federal defense lawyer is expected to help ensure rights are secured during the request deal.

In the state of the Utah, following crimes are considered as federal crimes mentioned below:

• Child pornography and other Internet crimes that cross state lines

• Financial fraud in government procurement, such as bankruptcy fraud, tax fraud or Medicare/Medicaid fraud

• Felony theft

• Federal drug crimes

• Federal weapons violations

• Murder

• RICO cases and racketeering

• Explicitly based offenses including sex wrongdoings including minors

• Intrigue cases

• Malevolent Mischief

• Wrongdoings including concoction weapons

• Federal weapons charges

• Medication wrongdoings

• Wrongdoings identified with citizenship, migration and nationality

• Traditions wrongdoings

• Hindrance of equity or prevarication

• Secret activities

• False embodiment

• Fear mongering offenses

• Destruction

• Wrongdoings including road groups

• Human dealing and bondage cases

• Mail misrepresentation, bank extortion, and different sorts of misrepresentation wrongdoings

• Duplicating and falsification

• Social equality claims

• Bribery of government officials

• Money laundering or counterfeiting

• Crimes on federal land

• SEC violations, insider trading and investor fraud

On the off chance that you live in Utah and you are under scrutiny for a federal wrongdoing, you should be exceptionally cautious what you state and do. Indeed, you ought to be mindful about responding to any inquiries federal examiners may pose regardless of whether you are let you know are an observer and are not the subject of an examination. Federal specialists, including agents at the FBI, have broad assets and are well-prepared in making bodies of evidence against respondents. Federal examiners are likewise gifted in their occupations and realize the stuff to verify feelings against Utah occupants who they think of bad behavior. Shockingly, the stakes are extremely high when you are going toward these federal authorities in light of the fact that the punishments that you face whenever indicted could be broad. The seriousness of federal charges and the ability of federal examiners and agents all imply that you should locate your very own gifted, proficient backer who realizes how to safeguard you on the off chance that you become engaged with the federal criminal equity framework.

You have to call Criminal Defense as quickly as time permits so our federal criminal resistance group can assist you with protecting your established rights and can work intimately with you to guarantee that you build up the privilege lawful guard system. We will dispatch our own examination, manage investigators on your sake, and do everything conceivable to guarantee that you rise sound from your association with the federal courts in the event that it is at all workable for you to maintain a strategic distance from a liable decision.

As listed above—federal crimes— only a little example of the kinds of federal charges that our legitimate resistance group can assist you with fighting against. Keep in mind, is isn’t up to you whether you face federal or state charges. On the off chance that you carry out a wrongdoing that could be unlawful under Utah law and that is likewise illicit under the laws of the United States of America, you could wind up being indicted by the state or confronting progressively genuine federal charges. The specialists choose where you deal with indictments and you’ll basically need to shield the case in whatever court you’re being attempted in.
A federal criminal protection lawyer at Criminal Defense can furnish far reaching help to Utah occupants with each part of reacting to federal criminal accusations. A portion of the a wide range of administrations our legitimate group can help with include: (1) Arranging a supplication understanding: In specific conditions, our gifted moderators could assist you with pleading down to a lesser offense or to diminish charges that could be brought against you. The objective is to downplay punishments and ensure your changeless record. (2) Reacting to a federal examination: When the FBI or other federal offices are exploring you, you should be cautious what you state and do as such you don’t give them proof of a wrongdoing. Have a learned supporter help you before you answer any inquiries or give any data. (3) Building a guard procedure: You’ll have to work with our group to assess the proof against you and choose the most ideal approach to approach charges. We can likewise lead an examination to support you present sensible uncertainty. (4) Battling for you in court: We will work intimately with you to bring question into an investigator’s case or to raise agreed resistances so you can dodge conviction.

City, county, and state governments have direct authority over most areas of the country. Unless an alleged criminal offense falls under the federal government’s subject matter jurisdiction, state or local laws apply in most criminal matters, ranging from minor traffic offenses to serious felonies. The federal Criminal Code includes provisions for many offenses normally handled at the state level. These include violent offenses like assault, kidnapping, and homicide, as well as non-violent financial crimes. These federal statutes apply to offenses that occur in areas owned or administered directly by the federal government, or under direct federal authority. A vast array of federal statutes are based on Congress’ authority under the Commerce Clause, including laws regarding drugs and firearms. Many federal criminal statutes expressly limit their application to acts that affect interstate commerce or that cross state lines. The mail and wire fraud statutes give the federal government jurisdiction over many offenses that might otherwise fall under state authority.

Federal and state law may overlap in some criminal cases, particularly if the federal statute relies on Commerce Clause powers. This is known as “concurrent jurisdiction,” and it can have serious consequences for some defendants. The Fifth Amendment to the U.S. Constitution protects any person from being “subject for the same offence to be twice put in jeopardy of life or limb.” Known as “double jeopardy,” this means that if the government fails to convict a person of an offense, it cannot prosecute the person again for the same offense. Because of concurrent jurisdiction, state and federal statutes are considered different “offenses,” meaning that if a person is acquitted of a federal charge, state prosecutors could still bring charges.

Federal Criminal Defense Lawyer Free Consultation

When you need legal defense help for a federal crime charge in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.

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

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Bankruptcy Lawyer Ogden Utah

It’s important to understand how people use credit recklessly and end up unable to repay their creditors. Credit is the use of someone else’s money to buy goods or services today with the promise to repay the money at a later date. The person or institution that extends the credit is called the “creditor,” while the person or institution that receives the credit is called the “debtor.” In most cases, the repayment of borrowed money involves the return of the original sum that was borrowed–the principal–plus interest. In some cases, particularly with credit cards and charge cards, interest payments can be eliminated by paying off the entire balance each month.

The use of “credit” is often distinguished from “borrowing” money, despite the similarities between the two terms. Borrowing occurs when the debtor immediately receives a payment from the creditor to make the purchase. For example, to purchase a house a person may “borrow” $150,000 from a bank to complete the deal with the current owner of the house. This $150,000 sum is received by the borrower, and used immediately to pay for the house. Thus, money has changed hands–from creditor (the bank), to borrower (the buyer of the home), to seller (current owner of the home). Credit purchases, on the other hand, do not require money to change hands at the time of the transaction. For example, when a person uses a credit card to make a purchase he is merely promising to repay that sum of money to the issuer of the credit card at a later date. He did not need to apply for a loan with a bank, nor did he need a bank’s cash to complete the transaction.

Reasons for Borrowing Money and Using Credit

One reason for borrowing money or using credit is that buyers can spread the payments for an expensive item over a longer period of time. In effect, the expensive good becomes more affordable in this manner. People who take out a 30-year mortgage, for example, make monthly payments on the principal and interest over a 30-year period to repay their debt to the lending bank. For smaller items, such as consumer durables, people might use credit or apply for installment loans to make the purchase. An installment loan is a type of borrowing where the buyer promises to repay the principal plus interest on a monthly schedule that could range from a few months to several years.

Secondly, the good can be enjoyed immediately. Imagine if you had to wait to buy a house, or a car until you could pay the full price in cash! We could predict that fewer houses and cars would be sold–and that production in many key U.S. industries would slow to a crawl! Of course, consumers don’t purchase houses or cars every day. But consumers do make millions of purchases daily with credit cards and charge cards. Let’s examine the use of so-called plastic money by consumers in the economy today.

Credit Cards

Credit cards

are plastic cards that permit a consumer to buy goods or services at a variety of businesses. Traditionally, they were used to buy goods in department stores, restaurants, and other businesses that specialized in consumer goods. During the 1990s the use of credit cards spread into many other types of transactions including pay-at-the-pump gas stations, supermarkets, and the U.S. Post Offices! The Federal Reserve reported that by the mid-1990s the head of family in two-thirds of all U.S. households had a credit card. Some of the major credit cards are MasterCard, Visa, American Express, and the Discover Card. Credit cards are usually issued by banks or other financial institutions.

Comparison shopping for credit cards involves asking the right questions of the firm issuing the card. First, what interest rate will you pay on the unpaid balance? The issuing company insists on a monthly “minimum payment,” but does not require full payment because it can charge you interest on the unpaid balance. Most credit card holders in the United States carry an unpaid balance into the next month. Secondly, does the issuer charge an “annual fee”? This fee could be $25, $50, or more! But there are many credit cards that have no annual fee at all. Third, what types of “finance charges” might be applied to the monthly statement? Finance charges could take many forms, and might be added to a monthly bill simply to record an unpaid balance. Finally, is there is a fee for consistently paying the entire balance each month? Recall that interest and finance charges are linked to unpaid balances. Cardholders who regularly pay their entire balance each month do not pay these fees, hence receive the convenience of credit without paying for this service. Thus, from the card issuer’s perspective, charging a fee for the use of a credit card is fair.

Charge Cards and Bankruptcy

“Charge cards” and “charge accounts” are credit arrangements made between an individual and a specific store or other place of business. Purchases made with charge cards or accounts do not involve loans or cash transfers at the time of the purchase. Many retail businesses issue charge cards or have charge accounts for the convenience of their customers.

The most common types of credit offered by these businesses are a regular charge account, a revolving charge account, and an installment charge account. The regular charge account allows the customer to charge purchases each month up to a certain dollar limit–called the “credit limit.” On regular charge accounts the customer is expected to pay the entire bill at the end of each month. An interest payment is added to the next billing if the customer fails to pay the entire bill. In contrast, the revolving charge account requires the customer to pay only a portion of the monthly bill, and then pay interest on the unpaid balance. This type of account also carries a credit limit. Stores issue a plastic card, similar in appearance to a credit card, to customers who have regular or revolving charge accounts. The installment charge account permits the customer to buy expensive items, and to repay the principal– and interest–in a series of monthly installments.

Using Credit Responsibly To Avoid Bankruptcy

The use of credit has made many types of transactions more convenient. But with credit use comes certain consumer responsibilities. How do the issuers of credit determine whether a person can handle this financial responsibility? And what happens when people cannot pay their bills?

Bankruptcy and Creditworthiness

Creditworthiness is a term used to evaluate whether a person should be granted credit. Major firms that issue credit cards or charge cards often look to “credit bureaus”–businesses designed to collect financial data on people–to help businesses decide whether a person is worthy of receiving the firm’s “plastic.”

So how do credit bureaus decide? Typically, credit bureaus use four criteria to evaluate the creditworthiness of people who apply for credit cards or charge cards. One criterion is the applicant’s income. Naturally, having a steady income is a plus, while having no income is a minus. A second criterion is the applicant’s wealth. Wealth refers to the applicant’s personal assets. Does the applicant own a house, a car, or other valuable assets? The greater the wealth, the greater the chance the card issuer will be repaid in case the card holder tries to default on his debt. A third criterion is the applicant’s past use of credit, or credit history. Has the applicant ever declared bankruptcy? Bankruptcies remain on a person’s credit record for seven to ten years. Having declared bankruptcy in the past is a major minus for the applicant. Finally, credit bureaus attempt to assess the applicant’s character. What kind of education or training does he have? Has he lived in the same location for a period of time? Has his employment been steady? After considering the applicant’s record on each criterion, the credit bureau sends a “credit report” to the firm that requested the credit check. In this report, a recommendation about the creditworthiness is made.

Credit Abuse and Bankruptcy

Credit abuse occurs when people use credit to live beyond their means, and then discover that they cannot pay their bills.

How can people dig their way out of debt? One possible answer is through debt consolidation. To consolidate their debts, debtors sometimes contact a finance company. This finance company then pays off the accumulated bills of the debtor, and replaces them with a single monthly bill. Hence, many bills have been consolidated into a single bill. While the debtor still must pay the bill, plus interest, the repayment schedule is adjusted so that the debtor can make smaller monthly payments over a longer period of time. Another possible solution is to seek help from your state’s Consumer Credit Counseling Service. While these counseling services vary from state to state, most will help you “reschedule” debts. That is, the service will contact your creditors to reduce your monthly payments by spreading them over a longer repayment period. Credit counselors might also suggest that you increase your income by working longer hours or by taking a second job. And there is just one additional requirement–many ask you to destroy all of your credit cards and charge cards!

Chapters in Bankruptcy

Bankruptcy is a legal recognition that an individual or a business

cannot pay its debts. There are many sections, or “Chapters,” of the bankruptcy code. These different Chapters try to deal with the different situations debtors find themselves in. The most commonly used Chapters of the bankruptcy code are Chapters 7, 11, and 13. Debtors, assisted by an experienced Ogden Utah bankruptcy lawyer must decide which Chapter best addresses their situation. Thousands of Utah residents file for bankruptcy each year. Bankruptcy is intended to give debtors a new financial start in life.

Chapter 7 Bankruptcy

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

Chapter 11 Bankruptcy

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

Chapter 13 Bankruptcy

Chapter 13 bankruptcies apply to individuals who are not in the hopeless financial situation that individuals filing under Chapter 7 find themselves in. Under Chapter 13, debtors turn their finances over to the bankruptcy court. After examining the financial documents, the court decides how to deal with the situation. Often, the debtor’s debts are rescheduled so that a portion of the debt can be repaid over time. In addition, a bankruptcy trustee may be appointed to oversee the case for the next few years. It is also common for the debtor’s wages to be tapped by the court to help repay creditors. The benefit to the debtor is that most of his assets are protected under Chapter 13.

If you are considering bankruptcy to pay off your debts, speak to an experienced Ogden Utah bankruptcy lawyer. The lawyer will advise you on the best chapter.

Ogden Utah Bankruptcy Lawyer Free Consultation

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

Ascent Law LLC
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West Jordan, Utah
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Telephone: (801) 676-5506

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