Will Your Contract Be Enforced Under Utah Law?

Will Your Contract Be Enforced Under Utah Law

If you are involved in a business agreement, one of the first things to determine is whether the promise or agreement at issue will be considered an enforceable contract under the law. While contracts usually involve promises to do something (or refrain from doing something), not all promises are contracts. How does the law determine which promises are enforceable contracts and which are not?

Is the Agreement a Contract?

In a dispute, the court must initially determine whether the agreement constitutes a contract or not. In order for an agreement to be considered a valid contract, one party must make an offer and the other party must accept it. There must be a bargained for exchange of promises, meaning that something of value must be given in return for a promise (called “consideration”). In addition, the terms of a contract must be sufficiently defined for a court to enforce them.

Enforcement and Contract Defenses

If a court determines that a contract exists, it must decide whether that contract should be enforced. There are a number of reasons why a court might not enforce a contract, called defenses to the contract, which are designed to protect people from unfairness in the bargaining process, or in the substance of the contract itself.

If there is a valid defense to a contract, it may be voidable, meaning the party to the contract who was the victim of the unfairness may be able to cancel or revoke the contract. In some instances, the unfairness is so extreme that the contract is considered void, in other words, a court will declare that no contract was ever formed. What are some of the reasons a court might refuse to enforce a contract?

Capacity to Contract

In order to be bound by a contract, a person must have the legal ability to form a contract in the first place, called capacity to contract. A person who is unable, due to age or mental impairment, to understand what she is doing when she signs a contract may lack capacity to contract. For example, a person under legal guardianship due to a mental defect completely lacks the capacity to contract. Any contract signed by that person is void.

A minor generally cannot form an enforceable contract. A contract entered into by a minor may be canceled by the minor or their guardian. After reaching the age of majority (18 in most states), a person still has a reasonable period of time to cancel a contract entered into as a minor. If the contract is not canceled within a reasonable period of time (determined by state law), it will be considered ratified, making it binding and enforceable.

Courts are usually not very sympathetic to people who claim they were intoxicated when they signed a contract. Generally a court will only allow the contract to be voided if the other party to the contract knew about the intoxication and took advantage of the person, or if the person was somehow involuntarily drugged.

Undue Influence, Duress, Misrepresentation

Coercion, threats, false statements, or improper persuasion by one party to a contract can void the contract. The defenses of duress, misrepresentation, and undue influence address these situations:

    • Duress: A party must show that assent or agreement to the contract was induced by a serious threat of unlawful or wrongful action, and that she had no reasonable alternative but to agree to the contract.
    • Undue Influence: Undue influence is often defined as unfair persuasion by a person who, because of his or her relation to the victim, is justifiably assumed by the victim to be one who will not act in a manner that is inconsistent with the victim’s welfare.
    • Misrepresentation: A misrepresentation may be a false statement of fact; the deliberate withholding of information which a party has a duty to disclose; or an action that conceals a fact (for example, painting over water damage when selling a house).


The unconscionability defense is concerned with the fairness of both the process of contract formation and the substantive terms of the contract. When the terms of a contract are oppressive or when the bargaining process or resulting terms shock the conscience of the court, the court may strike down the contract as unconscionable.

A court will look at a number of factors in determining if a contract is unconscionable. If there is a gross inequality of bargaining power, so the weaker party to the contract has no meaningful choice as to the terms, and the resulting contract is unreasonably favorable to the stronger party, there may be a valid claim of unconscionability. A court will also look at whether one party is uneducated or illiterate, whether that party had the opportunity to ask questions or consult an attorney, and whether the price of the goods or services under the contract is excessive.

Public Policy and Illegality

Rather than protecting the parties to a contract as other contract defenses do, the defenses of illegality and violation of public policy seek to protect the public welfare and the integrity of the courts by refusing to enforce certain types of contracts.  Contracts to engage in illegal or immoral conduct would not be enforced by the courts.


In order to cancel a contract for mistake, both parties must have made a mistake as to a basic assumption on which the contract was based, the mistake must have a material effect upon the agreed exchange, and must relate to facts existing at the time the contract is made. In addition, the party seeking to avoid the contract must not have contractually assumed the risk of mistake.

Parties sometimes attempt to claim mistake as a defense to a contract when they have failed to read the contract and later become aware of terms they dislike. Failure to read the contract is not a defense. A person who signs a contract is presumed to know what it says, and is bound to the terms she would have known about, had she read the contract.

Free Consultation with a Business Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506

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Can Stepparents Adopt Their Stepchildren?

Can Stepparents Adopt Their Stepchildren

When divorces happen, new relationships may begin between stepparents and children. Often stepparents seek to make this relationship official by formally adopting their stepchildren.

Under Utah law, stepparents have the right to adopt their stepchildren, but only if the non-custodial parent either gives up his or her parental right, or a court orders the termination of this right. This can be a difficult process that requires legal fees and determination, but can be tremendously rewarding for the stepparents and children.

The first step any stepparent seeking adoption would take is to seek the consent of the non-custodial birth parent. When that parent consents to the adoption, he or she gives up all parental rights and responsibilities. Some parents who are not present in their children’s lives and do not wish to be saddled with support obligations welcome this opportunity. Others, however, do not wish to lose their parental rights to their children. In these situations, a stepparent would need to seek a court order terminating the parent’s rights.

To do this, a stepparent would need to prove that the non-custodial parent has either abandoned his or her children or is not fit to serve as a parent. For instance, if a stepparent can show that the birth parent has not provided support or made contact with the child, a court may deem that parent to have abandoned his or her children. Alternatively, if the non-custodial parent is abusive or otherwise unfit to parent, this might also be grounds to terminate his or her parental rights.

It Can Be Helpful to Get a Receipt When Returning a Former Partner’s Property

It’s somewhat common for separating or divorcing couples to leave behind some of their possessions in their former marital home where their former partner still lives. After all, married couples collect a lot of possessions over the years and it can be difficult to put together a full inventory and get everything out of the house immediately.

There are often arrangements in which a spouse who stays in the marital home agrees to store some of the other spouse’s personal property temporarily, under an agreement that that spouse picks it up at a later date. However, if the relationship after the divorce remains contentious, there’s always the chance that the spouse picking up the items could claim some of the items were missing, even if you gave back everything you had.

What’s the best way to proceed in this situation?

Always get a receipt for any returned items to avoid future problems

First, if you stored items for your former partner out of the good will of your heart for an extended time after your divorce, it is unlikely a court will be overly sympathetic to the former spouse if he or she believes a few items have gone missing in that time. However, as an additional means of protecting yourself, it can be a good idea to create a receipt with an itemized list of all the property that your former partner can then sign in recognition that the property was returned.

In a similar manner, you can have a friend or family member present when your former partner comes by to pick up items so that he or she can act as a witness that you gave over all the items on the list.

Finally, be sure to take photos or videos of the items you are handing over. This serves as documentation and a sort of receipt in its own right and will provide extra evidence in the event you have to return to court due to a dispute over the “missing” items.

Free Initial Consultation with an Adoption Lawyer

When you need to do a step-parent adoption of have any adoption questions, 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

Business Financing Basics

Business Financing Basics

While poor management is cited most frequently as the reason businesses fail, inadequate or ill-timed financing is a close second. Whether you’re starting a business or expanding one, sufficient ready capital is essential. But it is not enough to simply have sufficient financing; knowledge and planning are required to manage it well. These qualities ensure that entrepreneurs avoid common mistakes like securing the wrong type of financing, miscalculating the amount required, or underestimating the cost of borrowing money.

Before inquiring about financing, ask yourself the following:

  • Do you need more capital or can you manage existing cash flow more effectively?
  • How do you define your need? Do you need money to expand or as a cushion against risk?
  • How urgent is your need? You can obtain the best terms when you anticipate your needs rather than looking for money under pressure.
  • How great are your risks? All businesses carry risks, and the degree of risk will affect cost and available financing alternatives.
  • In what state of development is the business? Needs are most critical during transitional stages.
  • For what purposes will the capital be used? Any lender will require that capital be requested for very specific needs.
  • What is the state of your industry? Depressed, stable, or growth conditions require different approaches to money needs and sources. Businesses that prosper while others are in decline will often receive better funding terms.
  • Is your business seasonal or cyclical? Seasonal needs for financing generally are short term. Loans advanced for cyclical industries such as construction are designed to support a business through depressed periods.
  • How strong is your management team? Management is the most important element assessed by money sources.
  • Perhaps most importantly, how does your need for financing mesh with your business plan? If you don’t have a business plan, make writing one your first priority. All capital sources will want to see your plan for the start-up and growth of your business.

Not All Money Is the Same in Business Financing

There are two types of financing: equity and debt financing. When looking for money, you must consider your company’s debt-to-equity ratio — the relation between dollars you’ve borrowed and dollars you’ve invested in your business. The more money owners have invested in their business, the easier it is to attract financing.

If your firm has a high ratio of equity to debt, you should probably seek debt financing. However, if your company has a high proportion of debt to equity, experts advise that you should increase your ownership capital (equity investment) for additional funds. That way you won’t be over-leveraged to the point of jeopardizing your company’s survival.

Equity Financing and Venture Capital Financing

Most small or growth-stage businesses use limited equity financing. As with debt financing, additional equity often comes from non-professional investors such as friends, relatives, employees, customers, or industry colleagues. However, the most common source of professional equity funding comes from venture capitalists. These are institutional risk takers and may be groups of wealthy individuals, government-assisted sources, or major financial institutions. Most specialize in one or a few closely related industries. The high-tech industry of California’s Silicon Valley is a well-known example of capitalist investing.

Venture capitalists are often seen as deep-pocketed financial gurus looking for start-ups in which to invest their money, but they most often prefer three-to-five-year old companies with the potential to become major regional or national concerns and return higher-than-average profits to their shareholders. Venture capitalists may scrutinize thousands of potential investments annually, but only invest in a handful. The possibility of a public stock offering is critical to venture capitalists. Quality management, a competitive or innovative advantage, and industry growth are also major concerns.

Different venture capitalists have different approaches to management of the business in which they invest. They generally prefer to influence a business passively, but will react when a business does not perform as expected and may insist on changes in management or strategy. Relinquishing some of the decision-making and some of the potential for profits are the main disadvantages of equity financing.

You may contact these investors directly, although they typically make their investments through referrals. The Small Business Administration (SBA) also licenses Small Business Investment Companies (SBICs) and Minority Enterprise Small Business Investment companies (MSBIs), which offer equity financing. Apple Computer, Federal Express, and Nike Shoes received financing from SBICs at critical stages of their growth.

Debt Financing For Your Business

There are many sources for debt financing: banks, savings and loans, commercial finance companies, and the SBA are the most common. State and local governments have developed many programs in recent years to encourage the growth of small businesses in recognition of their positive effects on the economy. Family members, friends, and former associates are all potential sources, especially when capital requirements are smaller.

Traditionally, banks have been the major source of small business funding. Their principal role has been as a short-term lender offering demand loans, seasonal lines of credit, and single-purpose loans for machinery and equipment. Banks generally have been reluctant to offer long-term loans to small firms. The SBA guaranteed lending program encourages banks and non-bank lenders to make long-term loans to small firms by reducing their risk and leveraging the funds they have available. The SBA’s programs have been an integral part of the success stories of thousands of firms nationally.

In addition to equity considerations, lenders commonly require the borrower’s personal guarantees in case of default. This ensures that the borrower has a sufficient personal interest at stake to give paramount attention to the business. For most borrowers this is a burden, but also a necessity.

Free Consultation with a Business Lawyer

If you are here, you probably have a business legal issue you need help with, 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

Avoiding Financial Conflict During a Marriage

Avoiding Financial Conflict During a Marriage

When marriages turn sour, one of the primary causes of conflict is finances. Therefore, all marriages can benefit from open communication regarding financial matters.

The following are some tips to make sure that you can avoid financial conflicts during your marriage:

  • Be honest. You and your spouse should always make sure that you have revealed your complete financial situations. This means sharing banking account information even if you keep separate accounts, sharing the full amount of debt that you have, and sharing the amount of money that you have in savings.
  • Budget. You should prepare a budget (and do so together) so that you have a clear picture of how much you can spend and what you can spend money on. Track fixed costs and set limits for personal spending each month.
  • Plan. Discuss your long-term financial goals and how you’d like to save for retirement, children’s college education and big vacations. You can’t necessarily predict everything when it comes to your finances, but it’s good to have an eye on the future and a general idea of how you want your financial planning to go.
  • Have safeguards in place. Always be prepared for the worst, whether it’s an accident, a home disaster or otherwise. Have all of the proper insurance policies, set up powers of attorney and prepare emergency funds. All of this can only help you should a worst-case scenario pop up. Finally, make sure that you have an estate plan in place.

Parental Alienation

Divorce often leaves ex-spouses bitter and angry at each other. But if there are dependents under 18, divorce also leaves ex-spouses in a position where they must coparent their children.

This spirit of cooperation is especially critical when parents must share custody or respect the visitation rights of the other parent. But sometimes one parent cannot control his or her negative feelings towards the ex-spouse. If these bad feelings poison the relationship of the children with their other parent, we call this parental alienation syndrome.

Courts frown upon this behavior, because destroying the parent-child relationship is definitely not in the best interests of the child. Parents who withhold visitation by the other parent could lose custody of their children. Parental alienation can take a variety of forms, including the following:

  • A derogatory comment or name-calling
  • Denying the other parent information about the health and education of the child
  • Shutting the other parent out of special events or activities in the life of the child
  • Making false allegations of neglect or abuse by the other parent

Preserving a Father’s Role

In decades past, a divorced man left behind his home, the better part of his paycheck, and the biggest part of his heart—his children. Times have changed somewhat. Increasing numbers of men today are interested in maintaining a stake in the life of their children after divorce.

Despite parenting resources that encourage parents to work together, children of divorce suffer when parents cannot make an agreement that supports parenting roles for both mom and dad. Children need their fathers to play a substantial role in their lives just as they did before divorce.

Children who experience divorce may see their father leave and not return. Or divorce may suddenly reduce access to dad, leaving children vulnerable to feeling abandoned and blaming themselves for the loss. For both genders, the fear and fault associated with losing either parent to divorce can cause a lifetime of emotional struggle.

Fathers provide a bridge to the world for their sons and daughters. While many courts still routinely award custody to mothers, times are changing. Do not give up. Hire attorneys with the experience and legal muscle to do the job right – and help you continue to play a key role in the lives of your children.

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

Employee Internet Usage

Employee Internet Usage

In today’s world, email and the Internet are at the crux of your business communications. Now more than ever, having constant access to the world wide web and email makes your business more profitable and productive. However, your business could be liable if employees misuse the Internet or their business email accounts. Here are some tips on what to look out for.

Should You Allow Internet Access for Personal Use?

With their speed, convenience and efficiency, the Internet and email have become essential tools for most businesses. But inappropriate use of a company’s Internet and email systems can have serious implications and consequences. An employee who abuses these tools may place his position with the company in jeopardy. In addition, the employer may be forced to take legal responsibility for the misconduct of their employee. While a new world of information and business opportunities is available through the Internet, so too is an entirely new world of legal dangers.

  • Copyright Infringement – The very nature and speed of the Web encourages copying and passing along of information and data. Sometimes nothing seems to heighten morale around the office like a good Dilbert-ism liberally circulated through the company’s email system. But copying and distributing someone else’s works without their consent could constitute copyright infringement.
  • Sexual Harassment, Discrimination – Even one off-color joke sent through the company’s email system could help constitute proof of a “hostile working environment.” Such evidence could then be used to bolster potential sexual harassment or discrimination complaints.
  • Trade Secret Disclosure – While most employers hope that their employees are not sending their company secrets to competitors, it is a real danger. Suspicion of an information leak could be sufficient grounds to monitor outgoing emails.
  • Securities Law Violations – It’s the Wild Wild Web when it comes to spreading (usually mis-) information about a company with the goal of moving the stock price up or down. An employee of a company whose stock is publicly traded posted false information on an Internet bulletin board regarding the company’s stock. Anyone with visions of riches should be warned: when such an occurrence of stock manipulation occurs, the company could potentially be held liable for a securities law violation.
  • Defamation/Cyber Libel – Workplace email addresses usually contain an easily identifiable company name. When an employee sends an email, the recipient of the message may infer that the company endorses the material contained within the email. Because the boundaries between opinion and defamation or libel are confusingly thin, it’s prudent to discourage personal use of the company’s domain name by employees. Even employee participation in a chat room or newsgroup using the employer’s domain name could present danger of a defamation lawsuit.

Protect your Business – Make Sure You Have a Written Policy

There are ways companies can help protect themselves from potential liability resulting from employee misuse of the Internet and email. One recourse is to institute an employee email/Internet policy, which outlines appropriate and inappropriate usage of the company’s resources. Such a policy shouldn’t be viewed as a panacea that completely shields a company from legal responsibility. But it would show a court that preventative action was taken to limit inappropriate use of the company’s Internet and email system.

Technology exists today that can limit employees’ access to inappropriate Web pages. But Internet filters and other software that can monitor employee usage of the Internet and email should be used with caution. A company should have significant reason to institute such measures because intrusion of employee privacy may violate federal wiretapping laws.

Additionally, let employees know the consequences of Internet misuse, including the dangers the company faces if litigation develops due to an employee indiscretion. Employees need to be educated about copyright, libel and securities laws and the dangers posed by inappropriate use of company email and Internet systems.

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

Moms Less Likely to Pay Child Support than Dads

Moms Less Likely to Pay Child Support than Dads

A new study revealed some information that may have been surprising to some people: a higher percentage of non-custodial mothers fail to make their child support payments than non-custodial fathers.

According to the study, in 2011, approximately 32 percent of custodial fathers did not receive a single dollar of the total child support they were owed, compared to 25.1 percent of custodial mothers. On the flip side, 43.6 percent of custodial mothers received the total amount of support they were owed, compared to 41.6 percent of custodial fathers.

However, these numbers can be misleading without other numbers and facts to put them into context:

  • Fathers make up only 18.3 percent of the custodial parents in the United States as of 2011, meaning there is still a significantly greater number of delinquent fathers than mothers
  • The average income of custodial fathers that do not receive their full amount of child support is $51,791, compared to only $26,231 for mothers. So custodial fathers make approximately twice as much as the average single mom.
  • As of 2011, approximately 31.8 percent of single moms were below the poverty line, whereas single dads below the poverty line were about half that figure.

So while it is true that a higher percentage of custodial mothers fail to make their support payments, this would seem to be due to a variety of factors, most notably a significant difference in income and a greater likelihood that they are living in poverty.

Really Bad Pieces of Divorce Advice

As you are going through a divorce, chances are you will receive a lot of unsolicited advice from family members and friends who may or may not have ever experienced a divorce of their own. Although they almost certainly mean well, it’s important to remember that each divorce is different, and any advice they give might not be appropriate for your situation.

To that end, here are some common pieces of bad advice related to divorce:

  • Wait at least a year before dating again: This isn’t true for everyone, and some people may be able to recover and get back on the dating scene more quickly than others. You shouldn’t put any limitations or timeframes on when you can start dating again. Instead, focus on getting yourself into the right emotional or mental state to move forward successfully.
  • Never let your ex-spouse in the home: This is simply childish and could also affect your kids in a negative way. You need to at least attempt to remain cordial with your former spouse so you do not influence the relationship your children have with that person.
  • Never get married again: This is, again, poor advice that does not take into account the fact that everyone is different. Although some people may wish to avoid marrying again, others may find a great partner who makes them truly happy.
  • Just move on and don’t feel sorry for yourself: It is completely natural to spend time in grief. Anyone who tells you to stop feeling sorry for yourself either has never been in your situation or simply does not respect you and your emotions. You have the right to take some time to figure out your feelings.

Free Consultation with a Family Lawyer

If you have a question about child support or family law, 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

Right of Repossession

Right of Repossession

Perhaps you’ve heard of the “repossession man” or “repo guy” — a shadowy figure who creeps up to your house in the middle of the night to take your back your shiny new sports car because you’ve defaulted on your car loan. Sounds like something out of a bad network television show, but in reality, creditors do have rights of repossession in certain circumstances and they can send a person out to take possession of any items a consumer or business doesn’t pay for as agreed upon in the contract.

Here you will learn about the basics of creditor’s rights of repossession in secured debts including what repossession is, what property may subject to repossession, and much more.

Definition of Repossession

So what exactly is repossession and how does it happen? Repossession is a process wherein a creditor takes possession of specific property after the debtor defaults on a contract. As in the example above, a person buys a car and then doesn’t pay for it as they agreed to in the contract. The right of repossession is created by contract and can exist in many different types of transactions.

Note, creditors are allowed to repossess property in many circumstances because they are “secured creditors,” meaning the lenders have an ownership interest in the borrower’s property. These are typically car loans or home mortgages.

How Repossession Works

A creditor can start the repossession process almost immediately if the account goes into delinquency. At that point, a creditor contracts with a third-party service, the repossession person or business, to capture the property and sell it to satisfy the unpaid balance plus the costs of the sale and attorney’s fees.

The most notable part to this process is that the creditor does not need a court order to begin repossessing property. How can the creditor do this? Usually this is spelled out in the terms of the contract signed between the business and the buyer. Each state has different business laws specifying how much, if any, notice has to be given to the consumer, so it is always good to check the laws in your state first. The same is true for leased vehicles or business equipment – miss a payment and the property can be seized right away without a court order.

Breach of the Peace

While creditors have broad rights of repossession, they can’t use the repo man to “breach the peace” or break the law to retrieve on secured debts. Breach of the peace can mean a variety of things, so it is important to look to state laws to understand the meaning. But generally it means the repossessor can’t come onto your private property to take the property such as an enclosed garage, or into a fenced or locked area, without permission from the legal owner of the building or locked area.

However, that doesn’t mean you can hide the property away in a location that would make it impossible for the repossesor to enter. In fact, in many states hiding or concealing the vehicle to deprieve it from the legal owner can be a crime. The repossesor can, however, take items, such a car or motorcycle, if it is located in an unsecured driveway, street, parking lot, and other publicly accessible areas at any time of day or night.

Are Cars the Only Property Subject to Repossession?

No, in fact there are number of different types of items that can be repossessed by a creditor to satisfy the secured debt including:

  • Real estate (see home foreclosure below);
  • Jewelry;
  • Rent-to-own furniture or electronics;
  • Artwork; or
  • Any other tangible asset that can be sold.

Another form of repossession happens when a person defaults on a home loan. If a consumer can’t make their mortgage payments, the lender can repossess the home through a process known as foreclosure. When that happens, the lender will sell the property to recover as much of the outstanding loan balance as possible because the house is collateral for your debt.

What if a Person or Business Doesn’t Pay a Credit Card Bill?

Most credit card debt is known as an “unsecured debt,” meaning the creditor has no ownership interests in the property. If a person or business doesn’t pay their credit card bill after collection attempts have been made, the creditor will have to go to court to secure a judgment, meaning the repo man can’t just waltz up to your doorstep and take the goods.

Right of Repossession: Related Resources

  • Creditors Rights and Collection Options
  • Debt Collection
  • Do I Need a Collections Attorney?

Free Consultation with a Utah Business Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506

Children Who Smoke and Drink are Linked to Parents’ Divorce

Children Who Smoke and Drink are Linked to Parents’ Divorce

Researchers in a variety of studies have linked parents’ neglect, absence or divorce to bad behavior in their children, including smoking and drinking. Children who have lost a mother or father early in life (defined as before the age of seven) are far more likely to drink and smoke before or during their teen years, whether that loss was due to divorce, death or separation.

One study found that preteens who had lost a parent in some way were more than twice as likely to drink and smoke compared to children who had not had this experience. Many experts say that these behaviors are a coping mechanism and, in some cases, a form of self-medication.

The study involved an analysis of data from the UK Millennium Cohort Study, which tracked health information for children born between 2000 and 2002. Researchers collected information on the involvement of the father in each child’s care and development. A survey of children at age 11 asked whether they had smoked or drank before. Those who drank also were asked if they had ever felt drunk. Of the 11,000 children who responded, about 25 percent had lost a parent in some way before age seven.

Preteens who experienced the absence of a parent before age seven were more than twice as likely to begin smoking and approximately 46 percent more likely to begin drinking.

Parents should pay close attention to kids’ behavior

This is not to say that all children whose parents divorce early in lives will start abusing substances in their teenage years. What it does indicate is that parents must make a big effort to stay involved in their kids’ lives, especially if they have experienced a major life change at an early age.

Do You Have to Answer Every Question at a Divorce Deposition?

At a divorce deposition, the other party’s attorney will be given the chance to ask you questions on a wide variety of subjects related to your divorce. These topics could include your overall health, your employment history, and your fidelity during the marriage, any debts or assets you own and anything else that could factor into the divorce. Your spouse is not allowed to interrupt you or to attempt to correct anything you say during this meeting.

Any answers you provide be truthful and entirely accurate.

Prepare for all types of questions

In most cases, you will have to answer any question asked of you — unless your attorney advises you not to do so. To that end, you should be prepared for some potentially uncomfortable subjects.

Before your deposition, spend some time with your lawyer preparing for how you will handle these difficult questions, and exactly they types of questions you can expect. An experienced attorney will prevent you from answering any inappropriate questions that could hurt your case. If you have any doubts about whether you should or should not respond, turn to your legal counsel.

Keep in mind that a court reporter will keep a record of your deposition. The transcript of your deposition contains all questions and answers, along with any objections your attorney makes. You should practice answering questions with your lawyer before the deposition.

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

Taking Legal Action for Non-Payment of Invoices

Taking Legal Action for Non-Payment of Invoices

If you run a business, whether a major corporation or a sole proprietorship, one of the biggest headaches is not getting paid on time. Accounts receivable are the lifeblood of any operation and when that spigot turns off or even slows down, it can have a devastating impact.

Understanding your rights to take legal action for non-payment of invoices is an important part of ensuring the viability of your business. Below is a helpful primer on how the legal process can help you recover your losses.

Determine Your Damages and the Likelihood of Recovery

Before you initiate the legal process to collect a debt, you need to make an important business decision — is it worth the cost of litigation to pursue? As you weigh this decision, you’ll need to know what your damages are and whether the customer can pay up.

When determining damages, you’ll want to calculate all of the unpaid invoices and, if the customer was renting or buying goods or equipment, whether they were damaged in any way. If so, you can factor in repair costs and possibly other damages due to lost income from future rentals (this is more likely if you already have future rental agreements in place).

The next step is to examine the customer’s financial health by analyzing factors like:

  • Fixed assets (vehicles, equipment, machinery, etc.);
  • Cash on hand;
  • Liquid inventory;
  • Real property;
  • Corporate bonds/stock;
  • Notes receivables; and
  • Debts/liabilities.

If you’re dealing with a customer that doesn’t appear to likely to pay you back or is on the brink of bankruptcy, instead of litigation, you may want to consider selling the debt to a debt collection agency and moving on.

Make Your Formal Demand

If you decide to take legal action for non-payment of invoices, you initiate the process with a formal demand letter to the defendant, whether it be an individual or a business, or both. If the defendant is a business, but an individual signed a personal guaranty, you can make the demand on both.

In your demand letter, among other things, you’ll want to:

  • Identify how the customer is in default;
  • Identify how much is owed;
  • Demand payment of all past due amounts by a certain date; and
  • Advise of possible legal action.

File a Lawsuit and Seek Pre-Judgment Relief

The next step is to file and serve a complaint in a court with the proper jurisdiction. Typically this will be in the county where the transactions took place or where the defendant resides/operates.

After you file a complaint, there are ways to seek relief early on in the process. For example, you could apply for a writ of attachment or writ of possession to either place a lien on some of the defendant’s assets or to take possession of them (if they were collateral for your agreement). This can protect your ability to collect on a judgment while also pressuring the defendant to settle the case.

Finally, during the pre-trial phase of a case, you can utilize the discovery process to not only obtain evidence supporting your claims, but also to identify and locate a defendant’s assets which can help you enforce a judgment down the road.

Obtaining and Enforcing Judgments

You can typically obtain three types of judgments:

  1. Default judgment (where the defendant fails to answer the complaint or appear in the case);
  2. Summary judgment (obtained on a motion); or
  3. Judgment after trial.

Once a judgment is obtained, you can immediately start the process of enforcing it. Each state provides different types of judgment enforcement mechanisms, such as:

  • Judgment liens;
  • Abstracts of judgment (which can be used to place liens on real property); or
  • Writs of execution (which can be used to direct a sheriff to seize equipment or garnish cash assets held by the defendant).

Keep in mind that in many jurisdictions, your judgment may also include interest, attorney’s fees and court costs, all of which can be part of your judgment enforcement efforts.

Free Consultation with a 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

Violations of Child Custody and Visitation

Violations of Child Custody and Visitation

Child custody and visitation orders are legally binding arrangements that all parties must adhere to now and in the years to come. However, in some circumstances, a parent or relative may break the agreement by illegally visiting or keeping a child for an unpermitted amount of time. If this situation occurs, it is helpful to know how to handle it.

What to do if court orders are violated

If a child custody or visitation court order is broken, you may not be able to resolve the issue on your own. In fact, it is not recommended that you try to navigate these difficult situations alone. When you need assistance in returning your child back to his or her proper home, call the police. Officers will take appropriate actions to handle your issue, and make a record of the incident that took place. It is always in yours and your child’s best interest to report violations of custody and visitation orders.

Once the child has been returned to his or her legal guardian, it is important to notify your lawyer about the violation. Your lawyer will be able to discuss your legal options, as well as inform the other parent about possible consequences of their actions. If the non-custodial parent consistently violates court orders, you may need to file a motion for contempt of court.

While handling violations of child custody and visitation orders, remember to not bad-mouth your child’s parent in front of them. Though this may take effort after a violation of orders, talking negatively about a parent to a child will not be helpful if your situation goes to court.

Results of court order violations

If a parent disobeys a child custody or visitation court order, the custodial parent may choose to petition the court for enforcement of its terms. If a parent repeatedly violates court orders, they may be found to be in contempt of court. This may result in a total loss of custody or visitation rights or even jail time.

Why Courts Order Supervised Visitation

Under Utah law, courts decide custody and visitation matters in “the best interests of the child.” Generally, there is a presumption that frequent, meaningful contact with both parents is in the child’s best interest, so even if one party to a divorce can’t share custody, that parent gets regular visitation or parenting time. Visitation usually has few restrictions, detailed in the court-approved parenting plan, pertaining to times for pickups and drop-offs.  However, the court will deny visitation or order supervised visitation if the child’s physical or emotional well-being might be endangered.

In making that determination, the court considers evidence of:

  • Violence or threats of violence against the child
  • Emotional harm
  • The child’s request to limit or deny visits
  • A noncustodial parent’s mental illness or substance abuse
  • The emotional damage caused by visiting a parent in jail
  • A parent’s threats to abduct the child

Most supervised visitation orders are temporary. If the supervisor reports that there is no reason to fear for the child’s safety, the judge usually calls an end to supervision.

Free Consultation with Child Support Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506