Wednesday, 17 October 2018

Paternity Lawsuit FAQs

Paternity Lawsuit FAQs

When the presumed father of a child denies parentage, the mother may choose to file a paternity suit. The filing of the suit typically compels the individual to submit to a DNA test in order to make that determination and also lays the groundwork for child support and, depending on the circumstances, visitation rights. The presumptive father also may file suit if he would like to establish paternity that has been denied by the mother, as can a child, although these are much less common. Below are answers to some of the most frequently asked questions about paternity suits.

How is the father of a child legally determined?

Assuming that there is no agreement between the parents, either the mother, alleged father, or even in some cases the child, can bring a paternity suit to identify the father of the child. Most paternity suits are filed to establish financial or moral responsibility, gain visitation rights or settle other issues in controversy between the parents.

If the circumstances warrant, a judge in a paternity suit will order a blood test from which DNA testing can conclusively determine whether the alleged father is the biological father of the child. After a determination is made, the judge can make a ruling on the issues outlined above or the parties can come to a private agreement.

Is the biological father the only person who can be legally recognized as the father?

The short answer is no, a man other than the biological father may be legally designated as the father of the child. But determining legal paternity can be a complicated problem which attempts to find clarity in circumstances which range from the straightforward to byzantine. Making this determination in a paternity suit often involves heated arguments on both sides and the legal standard for paternity varies from state to state. While we’ll cover the basics below, you should investigate your state’s laws in order to make an informed determination about your situation.

There are several legal classifications of fathers, and once established, paternity is difficult to change and unless there is a private agreement between the father and mother to the contrary, fathers are obligated to pay child support.

Acknowledged Father

The most straight forward of the bunch, it’s exactly what it sounds like. An acknowledged father is the biological father of a child born to unmarried parents who admits that he is the father. Acknowledged fathers are obligated to pay child support.

Presumed Father

Generally the most contested categorization of fathers, there are four circumstances in which a man is presumed to be the father of the child:

  1. He was married to the mother when the child was either born or conceived.
  2. He attempted to marry the mother when the child was either born or conceived.
  3. He married the mother after the birth of the child and agreed to have his name put on the birth certificate or agreed to support the child.
  4. He welcomed the child into his home after birth and openly holds the child out as his own.

Equitable Father

A father who is not the biological or adoptive father, but who has a close relationship with the child or where the relationship is encouraged by the biological parents. This legal claim is generally made by non-biological fathers during divorce proceedings.

The doctrine of the equitable parent derives from the understanding that a child and a non-biological parent may have such a close parent/child relationship that the court will grant the equitable parent custody rights. It seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.

The three requirements to be recognized as an equitable father are:

  1. the father and child mutually acknowledge a relationship as father and child;
  2. the father desires to have the rights afforded to a parent; and
  3. the husband is willing to take on the responsibility of paying child support.

Not all states recognize equitable fathers, so be sure to investigate your state’s laws and/or contact an attorney in your state.

Unwed Father

A man who impregnates a woman but does not marry her. Historically, unwed fathers have enjoyed fewer rights with respect to their children. If an unwed father wishes to retain rights with a minimum of court intervention, he should acknowledge his paternity and if possible come to an agreement with the mother confirming his status. If another man becomes the presumed father, retaining full rights for the unwed father becomes difficult. Assuming that there is not another man who seeks to be named the child’s father, the unwed father can retain visitation rights and seek custody of the child.

If I legally establish that a man is my child’s father, is he responsible for child support and how do I get it from him?

If paternity is established by one of the methods above, the father is required to provide child support for the child. The father also gets visitation rights and can seek custody of the child.

Once paternity is established, if the father refuses to pay child support, or does not provide enough, he will be subject to enforcement measures. All states have child support or child welfare agencies which can track down “deadbeat dads” through a variety of methods, including social security numbers, employment records, DMV searches, etc. Courts can place liens on property, garnish wages and even imprison fathers who don’t pay child support. You should explore all options through state and city agencies, or by contacting an attorney in your state who can do this as well as file a motion in court to compel the father to pay.

What if I can’t afford to file a paternity suit?

Fees required to bring a paternity suit can be costly, although there is generally a small fee for the paternity test itself. In almost all states there are mechanisms which allow paternity suits to be filed by the state at no cost to the mother seeking to establish paternity. State child support agencies will file the paternity suit on your behalf. Many of these agencies are funded by the federal Temporary Aid to Needy Families (TANF) program.

Free Initial Consultation with a Paternity Lawyer

When you need a Paternity Lawyer, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Creating a Business Plan

Creating a Business Plan

Every successful business needs a business plan, which maps out your company’s goals and plan of execution. The business plan not only helps keep everyone in the organization on the same page, but also serves as your company’s resume and can help with funding efforts. This section covers the reasons for writing a business plan and how to write one, including sample plans and related resources.

Breakeven Analysis

A person starting a new business often asks, “At what level of sales will my company make a profit?” Breakeven analysis is used to determine when your business will be able to cover all its expenses and begin to make a profit. It is important to identify your startup costs, which will help you determine your sales revenue needed to pay ongoing business expenses.

Writing a Business Plan

Business planning is essential for the success of any business. A business plan provides direction, keeps you on track and is usually a requirement when you seek finance. Before writing a plan, always do your research. You will need to make quite a few decisions about your business including structure, marketing strategies and finances before you can complete your plan. By having the right information to hand you also can be more accurate in your forecasts and analysis.

Effective Marketing Strategy for Your Business

While developing an effective content marketing strategy isn’t easy, becoming familiar with its core components is the first step for moving in the right direction. For instance, the key to effective content marketing is to be sharply focused. It’s virtually impossible to successfully market to everyone all at once, so instead you may find it easier if you concentrate your efforts where you think you can move the needle most.

Using Your Business Plan

A business plan does not guarantee the success of your venture, but it does increase the odds of success–if you properly use the plan as a comprehensive strategic tool. You can employ your business plan to sell your business idea to potential investors. Include in your business plan all the marketing, financial, background, and strategic information an investor would need to become as excited about your business venture as you are.

Including Logistics in Your Business Plan

No matter how finely tuned your business plan may be, over the lifetime of any business, things will go wrong. From natural disasters to worker strikes, the best way to survive a business disaster is with a logistics contingency plan. Logistics is all about details, and the long-term success of any business has a great deal to do with well-planned logistics. Focusing on these details continuously in your business plan will increase your company’s chance of success from the get-go and for the long run.

Hiring a Business Attorney

A business lawyer at Ascent Law can help in many business scenarios, from helping with the incorporation process, drawing up contracts and, if necessary, representing you in litigation. Each business is unique, and a free initial consultation with a lawyer from our office can help you determine the complexity of your own needs and how to proceed on many of these issues.

While you can often take care of the formation of a legal business entity such as an LLC or business partnership without legal help, forming a corporation with shareholders and a board is a more complex process. Articles of incorporation can be filed without lawyers, but the administrative side of managing the complex tax and legal requirements often requires the services of a corporate attorney from Ascent Law.

Free Consultation with a Utah Business Lawyer

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Tuesday, 16 October 2018

How Imputed Income Factors into a Divorce

How Imputed Income Factors into a Divorce

When a couple divorces, each spouse must make a full financial disclosure for the purposes of property division, alimony and child support. Often, a supporting spouse attempts to under report income to reduce alimony and child support obligations. Here are a few ways a supporting spouse could go into a divorce with lower-than-actual reported income:

  • Turn down a promotion or raise — An employee who is cozy with the boss could request that a promotion or raise be postponed until the divorce is over.
  • Accrue commissions — A sales professional could ask an employer to delay commissions “for tax purposes” when that really means “after the divorce.”
  • Neglect to invoice clients — A business that isn’t billing isn’t earning.
  • Create phony expenses — If a supporting spouse owns a business, it’s easy to list invalid expenses to drive down reported profits.

But when a party to divorce reports income that is lower than in previous years, the court tends to notice. Spouses also tend to notice when a long-anticipated promotion doesn’t come through, yet it’s treated as if it’s no big deal. A court can examine a long list of clues that leads to the inescapable conclusion that this breadwinner is trimming the crust.

It’s then that the court can impute income, treating the spouse’s reported income as if it is not telling the whole story. The court may inflate the reported income and use the higher figure in calculations for child support and alimony.

What Are the Steps of an Uncontested Divorce in Utah?

When a couple refers to an uncontested divorce, they are discussing a divorce that does not go to trial. In an uncontested divorce, there is no cause for a trial because issues are discussed and decided upon with the help of attorneys outside of the courtroom. This process includes the following steps:

  • Filing for divorce. Your divorce case begins in the eyes of the state when you or your partner file a no-fault divorce through a Summons and Complaint or Summons with Notice, and pay a filing fee. If you already have a settlement in place, you may file it at the same time that you file for divorce. If not, negotiations must take place and you and your spouse must reach a settlement agreement.
  • Serving your spouse. The spouse who did not file must be personally served with papers notifying them that you filed for divorce. This is completed by someone other than the person who filed for divorce who is over the age of 18. Once the papers have been served to your spouse, he or she will sign an Affidavit of Service to formally recognize that they received the divorce papers, and that they agree to a no-fault divorce. At this time, the divorce is considered uncontested.
  • Calendar your divorce for review. After you and your spouse have negotiated and reached a settlement on your divorce, your case will be presented to the court and calendared for review. This means that a judge will be provided with your divorce papers and will look over your case.
  • Judgement of divorce. If a judge approves of your settlement, he or she will sign a Judgement of Divorce ending your marriage. Both spouses will receive a copy of the judgement, and the spouse who did not file for divorce will need to sign a final Affidavit of Service noting that the divorce is finalized.

Free Consultation with Divorce Lawyer in Utah

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ten Ways to Fund Your Business

Ten Ways to Fund Your Business

Making the decision to start your own business can be both exciting and daunting. There are many things to think about: picking a business name, choosing a business structure, getting the required licenses and permits, and creating a business plan. You will also need to figure out how to fund your business, since most people don’t have the money to finance it themselves. So, a Business Lawyer would suggest these ways, but keep in mind, if you are going to ask friends and family for money to start a business, you need to provide disclosures and have your paperwork done by a Utah securities lawyer or you could run afoul of civil and criminal law in Utah.

Others may have enough money, but don’t want to have their life savings wrapped up in a business when there are no guarantees that it will succeed. This article provides a list and brief description of ten suggestions for how to fund your business.

  1. The U.S. Small Business Administration (SBA) has four basic loan programs:
    a. 7(a) Loan Program: this is the SBA’s most common program. The eligibility requirements vary depending on the specific aspects of the business.
    b. Certified Development Company/504 Loan Program: this program has specific eligibility requirements and provides financing for major fixed assets such as real estate or equipment.

    c. Disaster Loans: these low-interest loans can be used to replace or repair various items that have been destroyed or damaged in a disaster.
    d. Microloan Program: The SBA’s microloan program assists certain intermediary lenders in making loans to small businesses and certain not-for-profit childcare centers. This program provides loans of up to $50,000.

  2. United States Department of Agriculture (USDA) Rural Development: The Rural Development division provides loan guarantees for the purchase and expansion of land, buildings, equipment and working capital for cooperatives, nurseries, tourist and recreational facilities, hotels, motels, community projects, housing development sites and apartment buildings. These loan guarantees are provided only to businesses that save or create jobs in rural areas.
  3. State Financing Programs: Although state financing programs vary widely from state to state, all states offer financing programs. Funds originate from the federally-funded Small Cities Development Program and from state investment fund appropriations. Contact your state’s department of trade and economic development to find out what’s available.
  4. Local Financing Programs: Various governmental units provide forms of financing assistance to small businesses. The assistance may be in the form of the planning or business services unit of the county or municipality in which you operate (or intend to operate) your business.
  5. Commercial Banks and Savings and Loan Associations: If you can demonstrate a sound business plan and an operating history of two to three years, you may be able to obtain a loan from a commercial bank with favorable terms. Loans may take the form of lines of credit, inventory loans, accounts receivable financing, factoring (where the lender purchases receivables for a percentage of their face value), and conventional loans repaid over time. For newer businesses, a personal guarantee of the owner of the business will most likely be required. Savings and loan associations can also provide you with a business loan if you have appropriate collateral.
  6. Credit Unions: If you belong to a credit union, you may be able to borrow funds for your business. The procedure is generally simpler than borrowing funds from a commercial bank.
  7. Mortgage Companies: Some mortgage companies allow people to establish lines of credit on the equity they have in their homes, which can then be used to finance a business venture. Please be aware, however, that by doing this, you are putting your home at risk.
  8. Credit Card Companies: Although risky and costly, using credit cards to finance a business venture, particularly in the short-term, can be effective.
  9. Friends and Relatives: You may be able to obtain some funds from friends and relatives. However, it is important to pay back these loans on time to avoid making friends into enemies and relatives into estranged relatives.
  10. Life Insurance Policies: You can often borrow most of a life insurance policy’s cash surrender value for your business. However, make sure you understand the terms of the insurance plan first to avoid voiding the policy or reducing the death benefits.

These are just some of the loan programs available for those looking to finance their business. Be sure to check the loan programs in your area before committing to a particular loan program on this list. And remember, while this list is helpful in providing basic information about various loan options, only you can know which type of loan will best fit your needs.

Free Consultation with a Utah Business Lawyer

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Monday, 15 October 2018

Making Joint Custody Work

Making Joint Custody Work

Developing a joint child custody arrangement that works for both parents is never an easy task. It takes a lot of coordination of schedules and management of each parent’s needs, combined with ensuring the children’s needs are met.

When you have a joint custody arrangement finalized, there are some steps you can take to make sure it works for the long term so that you don’t have to constantly renegotiate the terms of the agreement. The following are a few tips:

  • Be kind: Never badmouth your former spouse or partner. The things you say will be internalized by your children, and it is unfair to kids for you to say things that could potentially damage their relationship with their mother or father. Keep your negative feelings to yourself when around your children.
  • Remember that custody is not about you: Custody is about the children. You should always make the children the focus, rather than your ability to “win” them or their time. You and the other parent must remember to put aside your egos for the good of the kids.
  • Be realistic and open about your schedule: As much as you might love to be with your children on certain days or for a certain percentage of the time, you also have to be realistic about your own schedule and commitments. If there are certain commitments you simply cannot sacrifice, you should be open about this when developing a custody arrangement.
  • Figure out the best way to communicate: Communication is crucial for joint custody to work. Find a method of communication that works for you, whether it’s via phone, texting, Google Drive, online calendars or any other platform that you both will use.

When Is Parental Kidnapping Legal?

Parental kidnapping can involve snatching a child and fleeing the country with the intention never to return, deliberately failing to return a child on time to a custodial parent, and everything in between. Parental kidnapping is the deliberate violation of a custody order. It need not involve violence, threats or even removal of the child to a different location. Simply frustrating the custodial parent’s efforts to exercise rightful custody is a crime, and parents who commit parental kidnapping face serious consequences including jail time — unless, of course, that kidnapping is legal.

But when is a crime legal? When an old legal principle called necessity comes into play, justifying an illegal act as necessary to prevent something even worse from happening. The defense of necessity has four parts:

  • The harm the accused sought to prevent is worse than the prohibited act he committed.
  • No reasonable alternative existed at the time.
  • The accused ceased the prohibited conduct as soon as the danger passed.
  • The accused did not create the danger he sought to avoid.

Courts recognize necessity as justification for parental kidnapping under very limited circumstances that create an immediate need to keep the child away from the custodial parent. For example, if your child tells you about physical or sexual abuse, you can hold the child while you pursue an order of temporary emergency custody from the court. Or if you are dropping your child off at a neutral site and notice the custodial parent is intoxicated and incapable of driving, you are justified in holding onto him or her.

However, you must be aware that the court is going to scrutinize your actions very carefully. You must be prepared to show an immediate danger to your child’s health or safety and that you sought a legal remedy as quickly as possible.

Free Consultation with Child Custody Lawyer

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Shipping Goods and the 30-Day Rule

Shipping Goods and the 30-Day Rule

If your business plans to ship products to customers, you need to be aware of the Federal Trade Commission’s (FTC) Mail, Internet, or Telephone Order Merchandise Rule. Better known as the 30-Day Rule, it governs the manner in which businesses fulfill orders that are to be shipped. Basically, the rule is meant to ensure consumers that their goods will be shipped in a timely manner while also leaving a reasonable amount of flexibility for businesses.

The 30-Day Rule for Shipping Goods

The 30 Day Rule requires that when a business advertises shipping its goods within a certain time frame, the business must have a reasonable basis for stating so. If you don’t make a statement regarding shipping time, you must ship within 30 days–thus, the 30-Day Rule. The 30-day window begins when the business receives a completed order and payment.

If the business is unable to ship within the promised time or within 30 days, the merchant must promptly tell the customer by mail, telephone or email, and give a new shipping estimate and give the customer a chance to cancel their order and receive a full refund. This offer to cancel or accept the new shipping date must give the customer sufficient time to make a decision. In other words, you can’t call to inform a customer you can’t make a shipping time and then demand an immediate answer.

If you don’t wish to ask the customer whether you can delay the order, you can cancel the order yourself and give a full refund within the time period shipping was promised. All refunds that are forced by shipping delays must be full refunds, and not credit for future purchases.

Who Is Covered by the 30-Day Rule?

The 30-Day Rule applies to goods the customer orders by:

  • Mail
  • Telephone
  • Fax
  • Internet

Shipping Advertising and the 30-Day Rule

The 30-Day Rule focuses solely on the method of ordering. It doesn’t matter how the product is advertised or who initiates the sale. If a customer orders by any of the above methods, the shipment is covered by the Rule. The only exception would be a situation where a customer orders a product and the business sends the product along with an invoice that’s payable on receipt. In this situation, the 30-Day rule does not apply, however, if you’re still unreasonably slow in delivering such goods you may be in violation of FTC rules against deceptive advertising.

The Credit Exception

If you have customers who order merchandise through in-house credit (that is to say, your business is offering a line of credit), then you get an extra 20 days to send the merchandise. This means you have 50 days total to ship the goods (the extra 20 days is for approval of their credit).

However, if you’ve advertised a time frame within which customers will receive their merchandise, then you must ship within that stated time, even if you have to approve their credit. By stating a time frame, the business is assumed to have taken the credit approval process into account. So be careful of what you promise and make sure you can deliver.

Enforcement

The FTC has wide ranging powers to enforce the 30-Day Rule. Businesses can be sued by the FTC for injunctive relief, damages of up to $16,000 per violation, and redress for the consumer. Additionally, state and local agencies can sue you for violating consumer protection laws.

Using Drop Shipping Services

Drop shippers are distributors who hold a retail business’ inventory and ship goods to customers once the retailer has made a sale. Drop shippers can be the manufacturer or another business that provides storage and shipping services. Drop shippers receive a sales order from a business and then ship the product directly to the customer, often using the business’ address or packaging.

Many online stores that don’t have brick and mortar buildings (e.g., Amazon) utilize drop shippers, and more small businesses are utilizing drop shipping services.

The Retail Business is Still Liable for Violations

Although drop shipping is an extremely useful service (a business doesn’t have to keep an inventory on hand), the retail business is liable if there is a violation of the 30-Day Rule. According to the FTC, the person or business that solicits the order, and not the agent who does the shipping, is responsible for on time delivery.

The FTC will look at certain factors when deciding whether to take action against a seller that uses a drop shipper who has failed to deliver as promised or within 30 days. The FTC will investigate:

  • Whether the business made all reasonable efforts to prevent violations, including contracting with the drop shipping company to make sure it complies with the 30-Day Rule and monitoring customer complaints.
  • Whether the violations where unforeseeable and beyond the seller’s control.
  • Whether the seller took immediate action once a violation was discovered and moved to remedy harm to the customer.

The seller is the one who controls the sale and maintains control over the actions of the drop shipper, and therefore is ultimately liable for delivery. Therefore, businesses must take care in choosing their drop shipper as well as taking steps to minimize potential problems.

Free Initial Consultation with an FTC Lawyer

When you need help with an FTC matter or other business law case, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

What is a Non-Disclosure Agreement or NDA?

What is a Non-Disclosure Agreement or NDA

Information is power, which is why people often go to great lengths to protect it. In the wrong hands (at least from the perspective of the party that wants to protect it), certain information can erode the competitive advantage of a business, ruin reputations, sink political careers, or violate someone’s privacy. Non-disclosure agreements, or NDAs, are legal agreements compelling a named party to keep quiet about a stated piece of information, whether it’s a company’s trade secrets or a politician’s sordid extramarital affairs.

NDAs are quite common in the world of business, particularly with respect to employees, partners, and intellectual property (or trade secrets in general). But they can be used in a variety of settings and generally serve the purpose of holding the subject of the NDA financially liable for disclosing certain information.

Simply put: If you disclose something after signing an NDA that prohibits you from doing so, you may be sued for damages. But there may be instances where the non-disclosure agreement is unenforceable. This article provides an overview of non-disclosure agreements, when they’re used, and what makes NDAs enforceable.

What is a Non-Disclosure Agreement Good For? 

As long as the subject of an NDA is not being asked to keep quiet about illegal activities, these agreements can be used for any number of purposes where the subject’s silence is desired. Common uses of an NDA include, but are not limited to, protection of the following:

  • Intellectual property shared with business partners, employees, contractors, etc.;
  • Discussion of a novel invention or business plan with a prospective investor or partner;
  • Certain trade secrets (such as competitive strategies and sales leads) specific to a business entity;
  • Knowledge of a consensual sexual affair or other legal, but potentially embarrassing, information; and
  • Knowledge of patients’ laboratory results by lab workers.

Elements of a Non-Disclosure Agreement

Non-disclosure agreements may be one of two basic types: either mutual or non-mutual. A mutual NDA holds both sides of the agreement responsible for not disclosing a given piece of information, while a non-mutual NDA is used to protect disclosure by just one party. But regardless of the type, all NDAs must include the following five elements:

  1. Parties to the agreement (the “disclosing” and “receiving” parties);
  2. Identification of the information deemed to be confidential;
  3. Scope of the confidentiality agreement (specific requirement, such as not disclosing the information to other business interests);
  4. Specific exclusions from confidentiality requirement (such as information already known to the public or independently known to another party without reliance on disclosure from the subject of the NDA); and
  5. Term of the agreement (how long the NDA lasts, typically two to five years).

Other provisions that may be added to an NDA include the designation of jurisdiction in case there is a dispute or the right to injunctive relief if necessary (i.e. the ability to stop the discloser from disclosing, in addition to liability for the disclosure).

Are NDAs Enforceable?

While it’s possible to sign an invalid non-disclosure agreement believing it to be valid and to fully comply with its terms, the true test of its validity comes when one of the parties tries to enforce it. This is why the validity of an NDA is framed in terms of whether it’s actually enforceable should the receiving party (the party agreeing to not disclose certain information) breach the agreement. So in order to understand when NDAs are enforceable, it helps to first consider when they are unenforceable.

Attorneys may challenge the enforceability of an NDA in any number of ways, but here are some of the most common challenges:

  • Terms of Agreement are Overly Broad: An NDA must be reasonable, the criteria for which may vary by jurisdiction; courts may not enforce an NDA they consider to be overly burdensome, vague, or otherwise unreasonable.
  • Failure by the Discloser to Maintain Secrecy: If the party seeking to enforce the secrecy of a given piece of information fails to safeguard it on their end, and a breach occurs, the NDA may not be enforced.
  • Disclosure to Third Parties: If the receiving party discloses protected information to a third party, the NDA may not be enforced against the third party; disclosing parties often remedy this by including provisions requiring NDAs between the receiving party and the third party prior to disclosure.
  • Jurisdiction and the ‘Inevitable Disclosure’ Doctrine: If a disclosing party seeks to obtain an injunction against a breach by the receiving party, it may be denied by the inevitable disclosure doctrine (i.e. the information would have inevitably been disclosed, regardless of the receiving party’s actions). This varies by state law.
  • Damages Difficult to Quantify: How much is your reputation worth? Was a particular trade secret really that valuable to the company? These are difficult questions to answer and may make it difficult to calculate actual damages when attempting to enforce an NDA.

Additionally, any of the general reasons that a contract may be unenforceable also apply to NDAs. These reasons can include not having the capacity to contract (due to such factors as age or mental impairment); undue influence or duress; unconscionability; attempting to protect information about illegal activities; or a mistake by one or both parties.

Free Consultation with a Utah Business Lawyer

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Sunday, 14 October 2018

Debt and Divorce

Debt and Divorce

Divorce calls for couples to divide their property during divorce. It also requires division of debt.

Research suggests disagreements about money are the leading predictor of divorce in the United States. Arguments about money can sour a marriage and make divorce difficult. When money is an issue during marriage, debt is oftentimes involved.

Common forms of debt carried by many couples include:

  • Credit cards
  • Mortgages
  • Home equity loans
  • Car loans
  • Tax liabilities
  • School loans

In Utah, assets and liabilities are subject to equitable distribution. Just as value acquired by a couple is part of their marital estate, so is debt. Questions arise when debt is incurred from gambling, secret investments or the use of marital funds to support an extramarital affair.

Typically a couple may have a joint account or separate credit cards used for personal and household expenses. Unless it can be otherwise shown, this type of debt is often equitably divided.

If you have debt and are considering divorce, think about the following steps:

  • Try to eliminate as much debt as possible prior to divorce. It is easier to get a fresh emotional and economic start after divorce if you are not saddled with debt.
  • Close joint checking accounts at the outset of divorce.
  • Close unused credit card and other unneeded accounts.
  • Depending on your long-term objectives, speak with your divorce attorney about reducing your debt load during negotiations for marital assets.

Divorcing Later in Life

Divorcing after many years of marriage is a growing trend with some statistics indicating that the rate of divorce for people over the age of 50 has doubled since 1990. There is even a name for this new trend: gray divorce.

Divorcing later in life can bring a complicated set of circumstances into the process. As people grow older, they often face financial stresses. Divorce places even more of an economic burden on a separating pair who must now run two households instead of one. Emotional ties to a home may make dividing the value of this asset difficult. Significant debt or mortgages can complicate matters.

Children may be grown, so custody will not be an issue, but issues such as health insurance can be a problem for couples who are not yet old enough to receive Medicare. Sometimes couples may agree to live apart pursuant to a Separation Agreement to avoid the expense of health insurance, or the effects of taxes.

Many later-in-life divorces involve a high net worth that calls for a detailed valuation of assets. Businesses grow over time and become more valuable. Retirement accounts and stock plans can increase significantly as the years pass.

Typical items to be divided include:

  • Home and other real estate
  • Trust accounts
  • 401(k), Keogh plans, pensions and other retirement plans
  • Businesses
  • Bank and stock accounts
  • Profit-sharing agreements
  • Investments
  • Off-shore or foreign bank accounts
  • Significant collectibles or other personal property

How a Child’s Preference Affects Custody

A child’s preference for living with a parent can affect custody decisions in many states, including Utah. However, while most judges will consider a stated preference, they are still obligated to rule in a way that protects a child’s best interest.

Judges have a great deal of leeway when they make custody decisions. Among the factors they may consider are:

  • Custody preferences of each parent
  • Child’s custody preference, but only if they are old enough to fully comprehend the implications of their choice
  • State of a parent and/or child’s physical and emotional health
  • Perceived stability and resources offered by each parent
  • Potential impact on home and social life, including school and community participation
  • Whether or not parents desire to help sustain a relationship with the other parent
  • History of domestic violence, if applicable

Although all of these issues are generally considered, the safety of the child is of primary importance in a custody decision.

What’s more, while the desire of the child is always taken into account, the older a child is the greater consideration a preference is given. If a child is 13 years of age or older, their preference is given greater weight since they are considered to be more independent and less likely to be manipulated in their choice. Additionally, siblings are typically kept together, although a judge may separate them if he or she believes it to be in a child’s best interest.

In most cases, children are not compelled to testify in court about their desires to live with a particular parent. Sometimes a law guardian is appointed to interview the child and identify his or her needs and desires, or an “in camera” interview is conducted which records the interview that is later transcribed.

Free Consultation with Divorce Lawyer in Utah

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Saturday, 13 October 2018

Who Gets Retirement Accounts After a Divorce?

Who Gets Retirement Accounts After a Divorce

Whenever couples get divorced, they go through the process of dividing their marital assets. These assets include any retirement accounts that were created during the time the couple was married. In some cases, retirement accounts could potentially be among the most valuable components of the overall estate, which means they can become a focus of divorce disputes.

Retirement accounts could include any of the following:

  • Savings accounts that were established during the course of the marriage
  • Pension benefits that were earned during a marriage
  • Other retirement assets like IRAs, 401(k)s, thrift savings plans, stock options, annuities and other benefit and contribution plans.

However, not all retirement accounts are automatically counted as being marital property. Any accounts acquired before the marriage or received by gift or inheritance do not count as marital property, nor do accounts excluded by prenuptial agreements or payments made toward 401(k)s before the marriage began.

In determining who gets what accounts or benefits after a divorce, whether the account was marital property or not is the largest factor. In most cases, the benefits will be subject to an “equitable split” between the two depending on the same kinds of factors that are used to determine any kind of marital property division, including income and overall need. But those accounts and benefits that were not marital property will stay solely in possession of the owner, the person who initially opened those accounts.

Handling Custody When the Parents Aren’t Married

Negotiating child custody arrangements between parents can be one of the most contentious areas after a divorce. Likewise, unmarried parents often have to confront the same set of complicated issues about the care and welfare of their children when they separate, including determining living arrangements, obtaining child support and setting up a visitation schedule.

Special considerations

Because unmarried legal parents of a child — whether they are biological or adoptive — do not divorce when they split up, they are sometimes able to create their own plans regarding the care of the child without the involvement of the courts. For many, this can work well as long they remain flexible and sustain open communication.

One essential element is to ensure that both parents can be present in their children’s lives and that they both remain responsible for their upbringing, including sharing the financial burden. Alternatively, in many states, separating couples propose their own arrangements to a judge who either approves them or requires modifications in terms of sharing custody and providing support.

The benefits of legal assistance

Although arrangements may often be made without the intervention of a family court, this does not hold true if the physical or financial needs of the child are in jeopardy — or if a once-amicable agreement has deteriorated. In this case, involved parties will often need to consult a lawyer to resolve key shared parenting issues, and if they are unable to create a satisfactory agreement, they may have to attend mediation sessions. Courts may also order subsequent modifications or additional support, and are never bound by agreements they deem inadequate.

Free Consultation with Divorce Lawyer in Utah

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ten Ways to Market Your Business

Ten Ways to Market Your Business

The way you market your business is as important as the quality of your company’s products and services. Savvy business owners (small business owners, medium sized owners, and big business owners) know that marketing a business effectively doesn’t require a massive advertising budget. Many smart and experienced business lawyers will tell you its not so much the quantity, but the quality. There are also the 3 M’s, which are the message to market must match.

You will need to set aside some money in your budget, but the most effective marketing consists of direct referrals, networking directly with your target customers, and creating an online presence (such as a website and social media participation). A huge advertising blitz isn’t always the right choice, but every business can benefit from a comprehensive marketing plan.

  1. Build a Great Website

Prospective customers search the internet when choosing what service or product to purchase. A professional presence on the web is important for driving consumers through your doors. A simple, easy to navigate site is perfect as long as it’s not a bare-bones site. Project professionalism and quality through your website. And avoid playing hide and seek with prices by being up front about what a customer can expect from your products and services.

  1. Optimize Your Company Website

In addition to building a business website, you will want to optimize it for search engines. Search engines such as Google and Yahoo use complex algorithms to match certain search terms with search results. By continually optimizing your site, you can assure that your business pops up near the top of searches. For example, if someone types in “beauty salons in Albany”, and your site is optimized for those keywords, your business can be near the top of the search results.

  1. Consider Social Media Publicity

The internet is a place where people talk and are talked about. With the emergence of social networking applications that allow customers to rate businesses (such as Yelp), Facebook — where companies can build pages and have “fans”, blogging, and microblogging — there is a virtual guarantee that your small business may be the topic of a tweet, a comment, or a blog post. When marketing a small business, consider being active on social media avenues, and weigh out any concerns regarding privacy. If you do forge ahead, be sure to maintain professionalism.

  1. Encourage Word of Mouth Referrals From Existing Customers

The best, and cheapest, form of marketing a small business is from the mouths of your current customers. People trust their friends’ opinions over an advertisement in a newspaper, radio, or television and you should take advantage of this built-in marketing tool. Offer customers discounts on future purchases for each new customer they refer.

  1. Target Your Customers and Understand How to Reach Them

Understanding your target audience is critical to getting the most value out of your marketing dollar. Taking an ad out in a major newspaper may get you little response, while reaching out to an influential blogger or listing in a local circular may net you greater value. If you own a restaurant, it makes sense to create relationships with local reviewers, critics, and “foodie” websites and bloggers. A simple investment of your time can net big results if you know where your target customers congregate or what they read.

  1. Use the Press to Get the Word Out

If you have a compelling story, use it to full effect. Get the word out to a local media source and they may feature your business in an article or television segment. Even if you don’t’ believe your story is worthy of a news story, make an effort to stay friendly with local media sources and they may remember your business when they do a related piece.

  1. Be Passionate About What You Do

Your enthusiasm for your business will drive more business your way because customers are naturally drawn to those who love what they do. You define your business in the way you conduct yourself in day to day operations. Marketing a small business is only as strong as the product and people in the business, and projecting passion and professionalism is essential in successfully connecting with potential customers.

  1. Survey and Follow-Up with Your Customers

The best way to understand what your target customers want is to go directly to the source. Find out why they come to your business, what products/services they like the most (and which they dislike), and anything they would like to see more/less of in the business. By doing this, you can cater to your customers and learn how to best market yourself to the rest of the public. You should also keep a database of customers so that you can follow up on their experience in the store and keep them updated on sales, discounts, and new services or products you’re offering.

  1. Be Wary of Branding Based on Price

While consumers are sensitive to pricing, by advertising your business as the lowest price, it’s essentially a race to the bottom and there will always be someone who’s willing to go even lower. As an alternative to proclaiming how “cheap” your products or services are, focus on the value customers will receive. By equating your business to quality and value for the dollar, you can better insulate your business from competitors who undercut your prices.

  1. Referral Exchanges with Related Businesses and Promotional Events

You can kill two birds with one stone by creating relationships with neighboring or related businesses and increasing customer awareness through cross promotional advertising or events. If you own a beauty salon, you might approach a neighboring bar or restaurant to host a happy hour event with them providing food and you providing an attractive, young clientele and free samples of your products or discounts on a future visit. Businesses that aren’t in direct competition can help each other enormously by working in conjunction.

There are many different ideas for effectively marketing a small business, but remember that it starts with a great product, a passion for the business, and building upon your network of existing customers. It’s called a customer base for a reason — a successful business builds upon it.

Free Consultation with a Utah Business Lawyer

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Friday, 12 October 2018

Fraudulent Transfers in Divorce

Fraudulent Transfers in Divorce

A fraudulent transfer is a transaction one person makes to frustrate another person’s legitimate claim to an asset. In divorce, fraudulent transfers occur when one spouse deals away property he controls to prevent the court from counting it and distributing it to the other spouse.  Fraudulent transfers are illegal, of course, but they can be tricky to discover and difficult to “unwind.” However, a spouse with a legitimate claim to a transferred asset can compel even a good-faith recipient to return the property.

For example, a husband anticipates that his wife is going to file for divorce. They’ve discussed selling a vacation cabin that he bought with marital assets, so he figures a quick sale won’t raise any red flags. He makes the sale for roughly what he paid for it back in the day, but significantly less than current market value.  The buyer is a prospective client, who is so happy with the deal that he signs a big contract with the husband’s company.  The husband’s also happy, because the profit he made from the sale — his deal with the client — won’t come through until after the divorce, so he won’t have to share any of the proceeds with his wife. That is, unless she finds out.

Because the husband originally bought the cabin with marital assets, the cabin itself is part of the marital estate, so all proceeds from the sale go into the marital estate for equitable distribution. But the proceeds of the sale don’t tell the whole story.

If the wife discovers that the sale of the cabin was for below market value and was motivated by the husband’s desire to cheat her out of marital property, she can allege fraudulent transfer. If the court agrees, there are three possible remedies:

  • The court will impute the market value of the house to the transaction and hold the husband responsible to the wife for the shortfall.
  • The court will consider the new business contract as part of the marital estate and order those profits to be split with the wife.
  • The court will void the sale to the client and return the cabin to the marital estate for equitable distribution.

The court will rarely unwind a transaction to a good-faith buyer if there is another way to compensate the defrauded party. But transactions to close friends or family members who are co-conspirators can be voided depending on the totality of the circumstances.

Should You Move Out of Your Home During a Divorce?

There are a lot of potentially stressful issues that you will encounter during your divorce, not the least of which is the choice of whether you should move out of your home during the process. Your home could possibly be your most valuable asset, and you have likely built up a lot of sentimental attachment to it as well.

So what are some things that you should consider when deciding whether to move out?

  • Your personal comfort and safety. If you believe that you would be in any danger by staying in your home, the choice is a no-brainer — get out as soon as you can, and take your children with you. If you are concerned about domestic violence, there is also the option to ask a judge to order your abusive spouse to move away. If the issue is simply that you are uncomfortable and that continuing to live together with your spouse would pose some challenges, then you need to consider potential custody and property arrangements.
  • Child custody. The primary custody-related dilemma is that if you move out without your children, your ex could portray the situation as you causing a disruption in their lives. You can avoid potentially being penalized by writing down a parenting agreement before either parent moves out, with a clear-cut schedule and an agreement that neither parent is giving up custody rights. You can also ask the courts to create such a schedule if you and your spouse cannot come to an agreement.
  • Property concerns. Who will get the house after the divorce? As soon as you leave, your chances of keeping the property significantly decline. However, another major factor in determining who gets the house is the financial standing of each spouse. Higher-earning spouses that move out will still be expected to pay some household expenses, but even then, the lesser-earning spouse may not have enough money to hang on to the home.

Free Consultation with Divorce Lawyer in Utah

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

General and Limited Partnerships

General and Limited Partnerships

After the entity known as a sole proprietorship, general partnerships are the easiest type of business structure to form. Unlike corporations or limited liability companies (LLC), partnerships have no formal requirements or paperwork that needs to be filed. All you need to form a partnership is a business and a sharing of profits (there’s no such thing as a non-profit partnership). If you are considering starting a business in Utah, or if you already have a business venture going, you really should make sure that you have a business lawyer in Utah. Partnerships are a unique business relationship because they are so easy to form, and, as you’ll see below, potentially difficult to manage and dissolve.

Types of Partnerships

There are three types of partnerships that businesses can choose — general, limited or joint venture. In a general partnership, the partners equally divide management responsibilities, as well as profits.

Joint ventures operate as general partnerships, but are specifically formed for a limited purpose or a single project. If, however, the joint venture is repeated, it may be labeled a general partnership, at which point it must follow the rules for dissolution of a general partnership.

Small Business Partnership

In a limited partnership, there are managing partners and limited liability partners (who are essentially passive partners who just invest money). The managing partner(s) manage the business and assume all liability from the success or failure of the business, while the limited partners can only lose the money they invested. Limited partnerships are more complex and generally require paperwork that formally recognizes the structure.

For this article, we’ll focus on general partnerships, as they are the most common, with a few references to limited and joint venture partnerships, where relevant.

Utah Partnership Basics 

Because partnerships are so easily created, you’ll want to choose your partners carefully and, wherever possible, enter into a partnership with a written document that guides the behavior of all parties. Without a written agreement, partners are required to follow certain rules for partnerships.

Another reason to choose partners wisely is that all partners share equal authority to bind the partnership to business deals and debt obligations.

Liabilities to Creditors

Probably the most important thing to know about partnerships is that owners are personally liable for all of the partnership’s obligations. Creditors can go after the partners’ personal assets, including bank accounts, cars, and homes. It is a frightening proposition and is the main drawback to partnerships.

There is an exception to personal liability in the case of limited partners, who have only invested money into the partnership. Limited partners must file a limited partnership certificate that includes the names of all general partners. Without such a document filed, even if the intent by all parties is to have general partners who run the business and limited partners who only invest money, the limited partners may still be personally sued by creditors.

Any debt that is owed to creditors can be collected from a single partner. The legal term is joint and several liability, and it means that each partner is individually responsible for the entire debt. It’s a legal method that prevents passing the buck between defendants (or, here, partners). Of course, if one partner does end up paying for the entire debt, he can sue the other partners to collect his fair share.

Responsibilities to Other Partners

As in any marriage, you owe certain duties and bear responsibilities to your partner(s). These responsibilities include:

  • a duty of loyalty and fiduciary duty
  • equal profit sharing (unless there’s an agreement that says otherwise)
  • equal control and no salary (unless there’s an agreement)

The fiduciary duty and duty of loyalty that all partners owe each other simply mean that a partner must act in the best interest of the partnership and can’t act primarily to enrich himself. Partners must provide a proper financial accounting of their actions, and the partnership can sue individual partners for any financial wrongdoing.

Partnership Taxes in Utah

Because the partnership isn’t a special corporate entity (like an LLC), taxes on profits are paid through partners’ personal income tax. The partnership reports its profits to the IRS (though it doesn’t pay taxes on them), and this way the IRS can be sure it collects the proper amount.

Terminating a Utah Partnership

In the absence of a written agreement, a partnership ends when a partner gives notice of his express will to leave (dissociate). When there’s a written agreement, the partnership ends when an event outlined by the agreement occurs or when a majority of the partners decide to end the partnership after a single partner dissociates.

Whether there is a written agreement or not, it’s fairly easy to leave a partnership, though you’ll still be responsible for obligations that the partnership incurred while you were there. Terminating a partnership is more of a process than a single moment in time because there generally remains business that needs to be wound down (i.e., debts to be paid, obligations to be fulfilled).

Free Consultation with a Utah Business Lawyer

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506