Military Bankruptcy

If you are a disabled veteran or are on active duty, you might be entitled to special exceptions from requirements if you file bankruptcy. But if you’re like most, you want to know whether bankruptcy might affect your security clearance or, if you haven’t joined yet, your enlistment, before you take that step. While there is no hard rule that says your security, clearance will be affected by bankruptcy, large amounts of debt may. Your superiors will usually review issues with your security on a case-by-case basis, so it may be worthwhile to look into it with someone you trust. If you’re concerned you won’t be able to enlist, skip ahead to Will Bankruptcy Affect My Ability to Enlist in the military?

Military Members and the Chapter 7 Means Test Exemption

To qualify for Chapter 7 bankruptcy, you have to meet specific income requirements, and you’ll prove it by passing what is called the means test. You would typically include your military income in the means test. If you are a disabled veteran or are a member of the National Guard or Reservist, you might be exempt from passing the Chapter 7 means test. The exception is limited, however, and has several conditions you must meet. (If you’re not sure which chapter would be best for you, start by learning more about the differences between Chapter 7 and 13.)

Disabled Veteran Exemption

If you’re a veteran and have a disability, you don’t have to pass the means test if you incurred debts primarily during the following periods:
• during active duty, or
• while performing activities related to homeland defense.
You won’t include the military disability compensation that you received for the last six months when determining your income eligibility for a Chapter 7 bankruptcy, regardless of how much payment you have been receiving.

Qualifying Disability

To take advantage of the means test exception, you must have a qualifying disability. You have a qualifying disability if:
• your disability has been rated 30% or more under the Secretary’s disability compensation rules, or
• you were discharged or released from active duty because you incurred or aggravated your disability while in the line of duty.

Active Duty: Limits and Exclusions

Not every disabled veteran who was injured while in the military will qualify for this exception. That is because the rules define “active duty” as full-time military service. It can include full-time training and attendance at military schools. Full-time National Guard duty is excluded from this definition. However, if you are in the National Guard, you could still be entitled to the means test exception on a different basis.

National Guard or Reserve Exemption

If you are a reservist or member of the National Guard, you might be able to opt-out of the means-testing requirement if:
• you were on active duty or participated in homeland defense activities for a continuous period of at least 90 days, and
• you file bankruptcy within 540 days (18 months) after you leave active duty.
This exception arises from the National Guard and Reservists Relief Act of 2008 (NGRRA). It is only temporary; however, the NGRRA has been extended several times and is currently valid until December 2023.

Veterans Benefits Might Be Exempt Assets in Bankruptcy

If you receive veteran’s benefits, they might be exempt assets in your bankruptcy. If you live in a state that uses the federal bankruptcy exemption system and you choose to use the federal exemptions, then those benefits are exempt. If your state has opted out of the federal bankruptcy exemption system, then your state’s exemption laws might also protect your veteran’s benefits. Veterans benefits will be part of the income means test to determine your eligibility for bankruptcy unless you qualify for one of the means test exemptions discussed above.

Pre-Bankruptcy Credit Counseling

Most debtors are required to complete consumer credit counseling before filing bankruptcy. However, if you cannot complete the pre-bankruptcy credit counseling requirements because you are in a recognized military combat zone, then you are exempt from this requirement.

Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act of 2003 (“SCRA”) is a federal law that provides some protection to members of the military from debt collection actions. The SCRA prevents or postpones:
• foreclosures and debt collection default judgments
• bank attachments
• evictions, and
• wage garnishments.
While the SCRA is usually beneficial in non-bankruptcy matters, it can also provide you with an added layer of protection while in bankruptcy. The SCRA can stay (stop or delay), for periods of 90 days or more after you have left active duty service, adversarial or contested proceedings in bankruptcy such as:
• default judgments on complaints to determine dischargeability
• objections to discharge
• trustee actions to attach your property
• debtor’s examinations, and
• post-bankruptcy evictions and collection actions, such as when a creditor is granted relief from the automatic stay.

Will Bankruptcy Affect My Ability to Enlist in the Military?

A bankruptcy alone won’t prevent you from joining the military. But you must meet specific financial standards to enlist, and previous economic instability can be problematic. On the bright side, taking care of debt problems through bankruptcy can make someone a stronger military candidate.

Finances When Enlisting in the Military

Each branch of the military has recruitment criteria that will consider your financial background. The requirements ensure that each branch complies with the Department of Defense requirement. The military examines your finances to ensure that you’re responsible, reliable, and trustworthy. Not only is it believed that financial background could contain indicators of these traits, but also that it’s essential to verify that you can live on a military salary. Another reason is that someone who struggles financially can be a security risk because of susceptibility to bribery and embezzlement. This factor will be scrutinized closely if a particular job requires a security clearance.

Financial Eligibility

At some point during the recruitment process, the military will review your financial background. You might have to fill out an application for a Financial Eligibility Determination (FED). Some branches of service have stricter standards than others, and not all of them require you to fill out a form FED. During the FED process, or as a separate review, the military will examine your financial circumstances—including your credit history, current ability to pay your debts, and your ability to support yourself and your family.
Some of the factors that the military might view as a negative when considering your approval for enlistment include:
• passing bad checks
• repossessions or foreclosures
• frivolous or irresponsible credit card spending
• loan fraud, income tax evasion, embezzlement, or other potentially criminal financial conduct
• charge offs, and
• signs that you are living beyond your means, such as a high debt-to-income ratio.

How Bankruptcy Might Affect Your Military Enlistment

It’s not so much the bankruptcy itself that matters, but what it says about your financial circumstances and your character. Some bankruptcies might reflect negatively on the applicant; others might not.

Bankruptcy Circumstances That Could Hurt Your Military Application

Filing for bankruptcy for less-than-honorable reasons can be a negative factor. Some potentially damaging bankruptcy issues could include:
• filing for bankruptcy multiple times
• discharging gambling debts, taxes, or debts for luxury items
• filing a bad faith bankruptcy
• having the court deny your discharge or dismiss your bankruptcy case, or
• relapsing into bad financial behavior after bankruptcy, such as incurring payment delinquencies or a high debt-to-income ratio.
How much these negative financial factors will impact your application will often depend on the position you’re applying for and whether you’ll need a security clearance.

When Bankruptcy Might Help a Military Enlistment

Struggling to pay a debt that you can’t afford can mean years of delinquencies and negative items on your credit report. Often, bankruptcy can help someone improve credit history more quickly. By eliminating debts through bankruptcy, you can begin building a positive payment history and improve your debt-to-income ratio. If bankruptcy has helped you get your finances under control, and you demonstrate financial restraint after your bankruptcy, you might end up being a more reliable military applicant in the end. You’ll be less susceptible to corruption if you need a security clearance. Another way the military might also view your post-bankruptcy financial rehabilitation in a positive light is that it shows that you were able to solve your financial problems and are capable of self-improvement.

Presenting Bankruptcy in a Favorable Light to Recruiters

If you filed bankruptcy in the past, use it to your advantage when you apply to enlist in the military. Explain to your recruiter and in the FED application, if applicable, the circumstances that caused you to file for bankruptcy. This could be especially compelling if you filed for a reason beyond your control, such as unemployment, divorce, death, or illness. If the circumstances were within your control, explain why they will not happen again. Most importantly, make clear that your past financial problems will not impact your service in the military.

Will Bankruptcy Affect My Ability to Join the Military?

Filing for bankruptcy won’t automatically disqualify you from enlisting in the military, and in fact, taking care of outstanding debt can be viewed positively. But, you’ll have to meet financial eligibility standards, and the circumstances leading up to your bankruptcy can affect:
• your chances of joining the military, and
• your security clearance.
You Must Be Financially Responsible to Join the Military
Each branch of the military has eligibility requirements, and financial responsibility is one of the criteria the military considers in the recruitment process. So, you should count on most military branches reviewing your financial history before allowing you to enlist. The military checks your financial background to make sure you are dependable, responsible, and can survive on your military salary. The following are some of the most common financial circumstances that can affect your ability to join the military:
• large amounts of credit card debt
• foreclosures and repossessions
• delinquent accounts, and
• embezzlement, tax evasion, or other financially fraudulent conduct.
How Filing for Bankruptcy Can Affect Your Chances of Joining the Military
While a bankruptcy filing might be considered a negative financial event, it can also show that you’re taking control of your finances by eliminating your debts. Some of the things that a military recruiter might view as a negative include:
• multiple bankruptcy filings
• filing for bankruptcy to eliminate debts for excessive or luxury purchases
• disobeying court orders during bankruptcy, and
• committing bankruptcy fraud.
On the other hand, bankruptcy can help improve your financial situation by eliminating many of your debts and giving you a fresh financial start. Typically, military recruiters will view your bankruptcy more positively if you had to file because of circumstances that were out of your control (such as job loss or illness) and you have remained financially responsible since then.

Bankruptcy and Your Security Clearance

Whether bankruptcy will have a negative impact on your security clearance or career advancement will depend on the branch of the military you want to join and the type of position you are looking for.
In most cases, the level of security clearance you can obtain will depend on numerous factors including:
• how financially responsible you are
• whether you’ve committed any crimes in the past
• whether you have a history of abusing drugs or alcohol
• your relationships with foreign individuals and your ties to other countries, and
• whether you have any personality disorders.

Filing for Bankruptcy in the Military

There are no legal restrictions that prevent military personal from filing for bankruptcy. While serving in the military, you have the same rights as a regular civilian to file for bankruptcy protection. When you join the military, there’s an expectation of you to maintain a decent standard of living. However, this doesn’t mean that you’re immune to financial hardships. Members of the military are often afraid of filing for bankruptcy because they are worried that it will interfere with their service or ruin their reputation. The reality is that you’ll be better off if you can maintain a strong financial situation. In fact, the military prefers that your finances be in order – even if that means filing for bankruptcy. Filing for bankruptcy can give you the opportunity to get back on your feet and can give you a fresh financial start.

Servicemember’s Civil Relief Act

The Servicemember’s Civil Relief Act (SCRA) offers special protections when a member of the military files for Chapter 7 or Chapter 13 bankruptcy. These laws were put into place to help active military members focus on their duties rather than their financial situation. The SCTA gives courts the right to stay or postpone bankruptcy and non-bankruptcy proceedings while you are on active duty. The law is able to prevent a range of proceedings during the bankruptcy process that could be detrimental to members of the military such as default judgments related to the dischargeability of a debt, obligation discharge objections, debtor examinations and collection actions that may occur after the bankruptcy proceedings have finished.

Special Protections and Exemptions

When civilians wish to file for Chapter 7 bankruptcy, they must pass the means test. The means test determines whether a debtor’s income is low enough to file for Chapter 7 bankruptcy. However, if you’re a disabled veteran, you may be exempt from passing the means test if your debts were mostly incurred during active duty or while performing activities related to homeland defense. If you’re a member of the National Guard or a reserve unit of the Armed Forces and were called to active duty or performed a homeland defense activity for at least 90 days after September 11, 2001, you may also be excluded from Chapter 7 means testing requirements. An experienced bankruptcy attorney will be able to help you determine whether you qualify for these special protections and exemptions.

Filing for Bankruptcy May Affect Security Clearance

Filing for bankruptcy doesn’t automatically affect your security clearance. Whether your security clearance is affected depends on a number of factors including why you filed for bankruptcy, your job performance, your position in the military and more. Having large amounts of debt may affect your security clearance, but in some cases, filing for bankruptcy can help you because it shows you’re taking a step in the right direction. However, in order to see classified information, you will have to obtain high-level security clearances that require extensive background checks.

Unfortunately, this could mean that bankruptcy will have a negative impact on your ability to work in these positions. If you’re serving in the military and are considering filing for bankruptcy, the best thing you can do is to meet with an experienced bankruptcy attorney. There are special protections and exemptions that exist for military personnel who are facing bankruptcy, and a bankruptcy attorney will be able to explain these to you.

Military Bankruptcy Lawyer

When you need a Military Bankruptcy, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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

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Utah Code 78A-6-504

Judiciary and Judicial Administration: Petition–Who may file

1. Any interested party, including a foster parent, may file a petition for termination of the parent-child relationship with regard to a child.
2. The attorney general shall file a petition for termination of parental rights under this part on behalf of the division.
The decision to terminate a person’s parental rights is one of the most serious that a family court can make. Whether your rights are being threatened or you need the court to remove the other parent’s rights, you will need excellent support during this time. In addition to your network of social support, you need an experienced family law attorney to ensure you make the best possible case to the court. For different reasons, there might come a time when a parent’s rights are terminated under Utah law. This means the parent is no longer considered the child’s legal parent, and all parental rights and obligations come to an end. Termination of parental rights in Utah often comes up in the adoption process. For instance, in a stepparent adoption, the biological father could give consent to the adoption and voluntarily waive his parental rights. In a situation where the biological father refuses, the family law court could terminate his parent’s rights without consent. Another situation where parental rights could be terminated are during a juvenile dependency court proceeding. If either parent has drug or alcohol addiction problems, criminal issues, abusive or they are found unfit, the juvenile court could terminate the parents’ rights. In general, there are two ways in which a parent can lose their parental rights: voluntarily and involuntarily. Either way, parental rights are not terminated until the court orders it. A parent who wants to relinquish their rights, the other parent of a child, or a state’s Child Protection Services (CPS) may petition the court for the termination of parental rights.

Voluntary Termination of Parental Rights

Because of the term parental rights, some people may assume that parents can quickly sign away their rights. However, Utah courts weigh a parent’s desire to relinquish their rights against the child’s right to have two parents. As such, parents must have valid reasons in order to voluntarily terminate their parental rights and relieve them of their responsibilities. In general, courts are willing to grant voluntary termination of parental rights when it is for the purposes of adoption. For example, if a couple does not believe they can parent a child and wants another couple to become the parents, the courts will likely see that the child’s right to have parents is fulfilled and grant the termination. Step-parent adoptions in which one parent is absent may also give the court a reason to grant the order. Typically, a termination of parental rights means custody of the child will fall to the other parent, but could also be given o a step-parent or a grandparent. If no appropriate family member emerges to take custody of the child after termination of parental rights, the family court will most likely put the child in foster care. The state of Utah provides more protection for children than federal law and has laws that lay out more reasons why parental rights may be terminated. All family law courts in Utah aggressively make a child’s best interests the highest priority. When it comes to child custody and parental rights cases, the primary consideration of the court is the benefit of the child. In some cases, the court must involuntarily terminate a parent’s rights in order to keep a child safe. However, this is a serious order to make, so courts only do it in extreme cases. A parent can lose his or her rights if they:
• Struggle with an alcohol or substance addiction that keeps them from being able to parent
• Commit severe or chronic abuse or neglect against the child
• Abandon the child
• Commit any kind of sexual abuse against the child
• Fail to maintain their financial or parenting obligations for an extended time
• Suffer from a mental impairment that keeps them from being able to parent

• Get convicted of certain serious felonies
• Commit any violent crime or domestic violence against a family member
• Get sentenced to a long prison stay, particularly if this leaves the child in foster care
• If you have re-married and want your new spouse to adopt your child
In Utah law, court could terminate the parental rights of a parent if they have abandoned their child. For instance, you might be able to establish the other parent has abandoned your child and terminate their custodial rights if the other parent has not provided any financial support, had little or no contact with your child for over a year, and their intent was to abandon your child. This list does not include all factors that may cause a parent to lose rights to a child, but these are some of the most common reasons. Generally, the courts only terminate rights if the petitioner can prove that doing so is in the best interest of the child’s health, safety, and welfare. When a parent’s rights are terminated, it legally separates the child from the parent completely. The parent then no longer has any right to visitation or custody. Typically, they do not pay child support either. Furthermore, the child loses the right to the parent’s inheritance, social security, or medical insurance benefits. If the court terminates the rights for one parent but sees the other as fit to parent, all rights and responsibilities fall on the remaining parent. If the rights were given voluntarily in order to facilitate adoption, the adoption can then move forward. In some cases, the court terminates rights involuntarily for both biological parents.

Utah is one of the states in which parents can seek the reinstatement of parental rights after termination. However, convincing a court to restore these rights is anything but easy. Only the child can petition to restore the parent’s rights–the parent cannot get the ball rolling. Furthermore, the child (with the help of a social worker or caretaker) must file the petition within three years of the original termination of rights, and the child must not have been adopted during that time. If a parent has corrected the issues that caused the termination of parental rights, and if the family court determines that reinstatement of parental rights is in the child’s best interests, the court might approve the child’s petition. If the child is older than 12 years old, they have the right to attend the hearing to speak about the termination or reinstatement of the parent’s rights. Finally, the court must see that the original issue that caused the termination has been resolved and that restoring the rights would be in the best interest of the child.

Grounds for Terminating Parental Rights

The phrase “termination of parental rights” can be the most frightening words a parent can hear. Fears of losing a child to the system can push a parent to work on improving their situation for the child’s benefit. However, to some, termination brings relief, as the parent knows that they can’t provide for the child but may have been unable to reach out for help. Some parents voluntarily terminate their parental interest as they feel it’s best for the child. The parental rights termination procedure is perhaps one of the strongest legal mechanisms available to protect children in need. In many cases, a termination proceeding is a necessary precursor to the adoption of the child. In some states and cases, it’s possible to reinstate parental rights after termination or consenting to adoption. The exact grounds for terminating parental rights vary from state to state. The following list summarizes the major grounds for terminating a parent’s rights to his or her child.

Common Grounds for Terminating Parental Rights

Child Abuse Factors

• Severe or chronic physical abuse of the child.
• Any sexual abuse of the child.
• Severe psychological abuse or torture of the child.
• Extreme emotional damage to the child inflicted by the parent.
• Child neglect by failing to provide shelter, food, or other needed care as is required by parental obligations.
• Abuse or neglect of other children in the same household.
• Abandonment of the child or extreme parental disinterest.
• Felony conviction of the parent for a violent crime against the child or another family member.
• The child would be at risk if returned to the parent’s home.

Parental Factors

• Long-term mental illness of the parent.
• Long-term alcohol or drug induced incapacity of the parent.
• Failure to support the child.
• Failure to maintain contact with the child.
• Failure to provide education.
• Felony conviction of the parent when the term of imprisonment is long enough to negatively impact the child and the only other source of care for the child is foster care.
• Failure of the parent to comply with a court ordered plan.
• Inducing the child to commit a crime or crimes.
• Unreasonable withholding of consent to adoption by the non-custodial parent.
• The identity or location of the father is unknown after a reasonable attempt to determine or find him.
• The putative or presumptive father is not the child’s biological father.
• Giving birth to three or more drug affected infants.
• Other egregious conduct or heinous or abhorrent behavior by the parent either to the child or others in a way that affects the child.
• Voluntary relinquishment of rights by the parent.
• Failure of reasonable efforts to rehabilitate the parent and reunite the family.

Additional Factors

• The child has been in foster care for 15 of the most recent 22 months, and the parent is still not ready for reunification.
• Risk of substantial harm to the child.
• The child’s need for continuity and care.
• The child was conceived as a result of rape or incest.
• A newborn child is addicted to alcohol or drugs.
• The child has developed a strong and healthy relationship with his or her foster or other substitute family.
• The preference of the child.

The Steps For Termination Of Parental Rights

The first step is to file a petition that includes the child’s birth name, age and date of birth, their current address or the county of residence if the child is in the custody of the state. That petition will also include:
• The facts alleging the basis for the termination of parental rights.
• A verified statement that the putative father registry has been consulted within ten working days of the filing of the petition, whether there is a claim on the registry to the paternity of the child, whether there is any other potential claim to the paternity of the child, and whether any other parental or guardianship rights have been or must be terminated before the child can be made available for adoption.
• A medical and social history of the child and his or her father (when available), though the absence of such information is not a barrier to termination.

Terminating parental rights completely severs the rights, obligations and responsibilities of the parent or guardian and after their rights have been terminated, and the parent will have no further notice about the adoption proceedings, or have any kind of legal relationship with the child. When the petition is filed the Court issues a summons to the necessary parties. If a parent whose rights are to be terminated is incarcerated, they must also receive notice of the time and place of the hearing.
• The Respondent may appear in person at the hearing or file a written answer to the petition.
• The Court will appoint a Guardian Ad Litem for the child.
• An adjudicatory hearing on termination will take place.
• The Court will enter a ruling within 30 days of the hearing.

Any parent, stepparent, grandparent, or other relative can allege child abandonment and file a petition to obtain custody. In addition, any interested party, even if not related to the child, can also file a petition to obtain custody alleging abandonment, if both parents have neglected, abused, or abandoned the child. If only one parent has abandoned the child, usually the person asking this question above will be the non-abandoning parent, usually the one who has custody. They can also file a petition to limit the child’s parent time, request that the other parent’s parent time be supervised, or request that the other parent have a parental fitness evaluation. If the custodial parent believes that sufficient grounds exist to terminate the other parent’s parental rights, and that it is in the child’s best interests to do so, then they also file a termination of parental rights petition. If that petitioning parent wishes their spouse, the child’s stepparent, to adopt the child, then with the termination petition they may also file a petition for adoption by the stepparent.

Parental Rights Lawyer

When you need legal help with parental rights in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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84088 United States
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Adult Protective Services

In Utah, United States, Adult Protective Services (APS) are agencies that provide protective social services to elderly adults (typically those age 60 or 65 and older) as well as vulnerable adults (typically those with serious disabilities). Adult Protective Service agencies are the adult equivalent to Child Protective Services and play a critical role in combating elder abuse or the abuse of other vulnerable adults. Such abuse can include neglect, physical abuse, sexual abuse, emotional or psychological abuse, abandonment, or financial abuse. According to the National Adult Protective Services Association (NAPSA), over the past several decades, Adult Protective Service agencies have developed from the ground up. They first emerged at the state and local levels and only recently received greater support from the federal government. Thus, the development of most Adult Protective Service agencies occurred before the benefit of federal coordination and also before the benefit of comprehensive research in the field of elder or vulnerable adult abuse, a more recent phenomenon. As of today, Adult Protective Services agencies exist in every state and are normally administered at the local or county level. Two-thirds of states place their Adult Protective Service agencies within their Department of Social Services. For the remaining states, Adult Protective Service agencies are placed within a state department on aging or health. In addition, while a few states, such as Ohio, limit Adult Protective Services only to the elderly, most states (90%) provide Adult Protective Service to vulnerable or dependent adults as well as the elderly.

What Services Do Adult Protective Service Agencies Provide?

Upon receiving a report of abuse involving an elderly or vulnerable adult, APS agencies typically provide the following services:
• Investigations
• Evaluations of client risk and mental capacity
• Development and implementation of a case plan tailored to the victim
• Counseling for the client
• Assistance in connecting the client with additional services and benefits
• Ongoing monitoring of the delivery of services
In conducting investigations, APS agencies also work closely with law enforcement in the event that criminal abuse against elderly or vulnerable adults is uncovered.

Principles Guiding APS Agencies

According to the National Adult Protective Services Association (NAPSA, below are the main principles that guide APS agencies in the delivery of services to elder or vulnerable adults:
• The client has a right to self-determination.
• The least restrictive alternative should be used.
• The family unit should be maintained wherever possible.
• The use of community-based services should be preferred over institutions.
• Blaming the victim should be avoided.
• Failure to provide adequate or appropriate services is worse than providing no services.

Filing a Report with Adult Protective Services

If you file a report with Adult Protective Services, the details of the report will first be screened by a trained professional to determine whether Adult Protective Service has jurisdiction to move forward. If so, you can expect an APS caseworker to be assigned to investigate the case and establish a relationship with the potential victim. In some states, a caseworker is required, by law, to contact the potential victim in person within a certain number of days. Utah, for example, requires a caseworker to make such “in-person” contact immediately in cases of imminent danger or, for all other cases, within ten days.

During the investigation, the caseworker will investigate the facts and, where appropriate, report any criminal activity to law enforcement. However, unlike a traditional law enforcement investigation, APS caseworkers are also specifically trained to develop a relationship of trust with the potential victim and to provide a case plan specifically tailored to the potential victim’s needs. While laws vary from state to state, some states allow for APS reports being submitted anonymously. Some states also protect the person making the report from civil and criminal liability, as long as the report was made in good faith. Such laws also protect those initiating reports from any professional disciplinary action. This is to encourage doctors or other medical professionals to report suspicions of abuse without fear of breaching any professional obligations of confidentiality or any privacy laws relating to medical records. To initiate a report of elder abuse or abuse of a vulnerable adult, contact your local Adult Protective Services office. the National Adult Protective Services Association (NAPSA) provides an APS locator on its webpage to assist in locating an office near you.
You also have a right to:
• Be treated with courtesy and respect.
• A caseworker who works with you and listens to your needs and concerns.
• Participate in the development of a Service Plan. A Service Plan identifies the services recommended and who will be responsible for providing those services.
• Clear, honest answers to your questions.
• Be told about other organizations that can help you and your family if APS cannot help.
• Written notification of the case resolution.
• Be served without discrimination on the basis of age, race, national origin; creed; gender; sexual orientation; lifestyle; or physical, mental or developmental disability.
• File a complaint or grievance if you have a problem or concern that cannot be resolved by your caseworker or the supervisor.
• Ask that services be terminated.
You have a responsibility to:
• Provide accurate information.
• Cooperate with your caseworker and others trying to help you.
• Tell your caseworker or your caseworker’s supervisor if you have a problem so they can serve you better.

Services Rendered By APS

APS can provide short-term (normally less than 30 days) case management services. In addition, APS can make service referrals to community agencies that can provide long-term support. Examples of these services are listed below.
• Meals on Wheels
• Medical Treatment
• Money Management
• Long term homemaker services
• Chore Services
• Mental Health Counseling and treatment
• Drug or Alcohol assessment and treatment
Immediately you contact APS what happens is that APS will take the report and investigate if APS has jurisdiction and the adult is considered a vulnerable adult. An APS investigator will:
• conduct a home visit, usually unannounced;
• interview other individuals who may have information about the situation; and
• offer protective services if the investigator determines abuse has occurred.
Depending upon the situation, law enforcement may also be called upon to investigate. If abuse is confirmed, APS works closely with others in the community to ensure the health and safety of the vulnerable adult. This may include such things as having a case manager work with the vulnerable adult to determine what care services are needed and helping him/her get those services, emergency shelter, food, medical care, counseling, help moving if it is necessary and follow up to ensure the adult is safe. On the legal front, APS may report the alleged abuser to law enforcement; help get an emergency protective order, an injunction to allow access to an alleged victim or referral for legal assistance. In extreme cases, APS may work with the Attorney General’s office to appoint a guardian. It is important to understand the vulnerable adult has the right to make his/her choices. A vulnerable adult who has been abused has the right to refuse any or all interventions or change his/her mind and withdraw consent to any assistance from APS at any time.

Types of Abuse For Adult Protective Services

• Physical: e.g. Hitting, kicking, burning, dragging, over or under medicating
• Sexual Abuse: e.g. Unwanted sexual contact, sexual exploitation, forced viewing of pornography
• Abandonment: e.g. Desertion or willful forsaking by anyone having responsibility for care
• Isolation: e.g. Preventing the individual from receiving mail, telephone calls, visitor
• Financial: e.g. Theft, misuse of funds or property, extortion, duress, fraud
• Neglect: e.g. Failure to provide food, clothing, shelter, or health care for an individual under one’s care when the means to do so are available.
• Self-neglect: e.g. Failure to provide food, clothing, shelter, or health care for oneself.
• Mental suffering: e.g. Verbal assaults, threats, causing fear.

What Are The Warning Signs Of Adult Abuse?

These are some possible warning signs that abuse might be occurring to an older or disabled adult or that the individual is at increased risk for abuse. If you observe some of these occurring with an older or disabled adult you know, consider alerting County Adult Protective Services.
• Explanation for an injury is inconsistent with its possible cause
• Recent changes in the elder or dependent adult’ s thinking; seems confused or disoriented
• The caregiver is angry, indifferent, or aggressive toward the elder or dependent adult
• Personal belongings, papers, or credit cards are missing
• The elder appears hesitant to talk openly
• Lack of necessities, such as food, water, utilities, medications and medical care
• The caregiver has a history of substance abuse, mental illness, criminal behavior or family violence
• Another person’s name added to the client’s bank account or important documents, or frequent checks made out to cash.

When a report of abuse, neglect or exploitation is received, APS’s goal is to create a stable environment where the individual can safely function without requiring on-going intervention from the APS program. Services provided by APS include responding to reports of known or suspected abuse or neglect, conducting an investigation, and arranging for the delivery of services from available community agencies. APS is not intended to interfere with the life style choices of elders or dependent adults, nor to protect those individuals from the consequences of their choices. For this reason, an elder or dependent adult who has been abused may refuse or withdraw consent at any time to preventive and remedial services offered by an APS agency. However, APS is required to conduct an investigation when there is an allegation that a crime has been committed, regardless of whether the elder or dependent adult wants the investigation to go forward or not.

Benefits to Reporting Abuse

• The elder or dependent adult will be given options to keep him/her safe from harm
• The APS worker can link the client, family to needed community resources
• Unaware family members and friends can be alerted to step in to help
• The APS worker can find ways to help the caregiver handle stress
• In some cases, the abuse perpetrator can be prosecuted, lessening the harm to others
• The individual making the report feels relief that a professional is assessing the situation

Failing to Recognize Signs of Abuse

Many family members, friends, or even nursing facility staffs don’t know how to identify the signs of possible abuse or what they should do if they have reason to believe that an elderly adult is being abused. Red flags that may indicate abuse include:
• Unusual changes in behavior, mood, or sleep habits.
• Fear, anxiety, depression, or isolation.
• Broken bones, bruises, welts, cuts or sores.
• Untreated bedsores.
• Torn or bloody underclothing.\
• Unexplained sexually transmitted diseases.
• Dirtiness, poor nutrition, or dehydration.
• A caretaker’s refusal to allow the elder to spend time alone with family or friends.
• A caregiver who exhibits negative behavior toward the elder, including threatening, bullying, or belittling the elder.
• Unsanitary living conditions.
• Lack of medical aids the resident needs, such as glasses, a walker, hearing aids, or dentures.
• Unusual changes in bank account or money management, wills, or other financial documents.
• Forged signatures on financial documents.
• Unpaid bills.

Fear of Retribution

While declining cognitive abilities may leave many elders unable to report abuse, another reason elders may be reluctant to talk about what is happening to them is fear of retribution. This is true for abuse in home settings as well as in skilled nursing facilities. This may be particularly true if the abuser is the elder’s primary caretaker. In institutional settings, fear of retribution may also cause residents to feel uncomfortable about reporting abuse that they witness other residents experiencing. It is hard to report abuse by someone upon whom you are completely dependent. Some of the questions an elder may be asking themselves include:
• Who is going to take care of me if I report this behavior?
• Will my caretaker be angry?
• If I report abuse, will it be investigated? Will my abuser be told that I filed the report?
• If I report my abuser, will they still be responsible for my care? Will I be subjected to worse treatment or other punishment for reporting?
• If I report the abuse of another resident, will the caretaker be disappointed in me? Will they lose their job? Will I be subjected to the same abuse?
• If I report that my family member or caretaker is abusing me at home, will this cause me to have to move to an institution for care?
One of the most prevalent forms of elder abuse is emotional abuse, which may include threats or intimidation. One of the red flag behaviors that may indicate elder abuse is a caretaker who is reluctant to allow the elder to spend time alone with visiting family or friends. Fear of retribution may also be a factor in the failure of staff to report suspected abuse by other staff members. Facility employees may worry that reporting a coworker will cause a time-consuming investigation that supervisors won’t believe the allegations or those supervisors will take the abuser’s side and that making the report could impact the reporting employee’s status at the facility.

Adult Protective Services Lawyer

When you need legal help with APS in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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

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Representing Churches In Utah

Churches and church activities entities can be public charities, religious organizations, private foundations, social welfare organizations, child care facilities, food banks, hospitals, schools at all levels including colleges and universities, and trade associations. Business is formed for profit or nonprofit purposes. Churches generally operate as nonprofit entities. The monies the religious organization raises are not distributed to shareholders but instead are used to fund programs and outreach activities consistent with the tenets of the faith involved.

Church Law

The formation and dissolution of a nonprofit organization is just like the formation of a for profit business. The religious organization must complete the following steps:
• Choose name and ensure it is available for use
• File paperwork, including articles of incorporation, that explain nature and purpose of the nonprofit organization
• Apply for federal and state tax exempt status
• Create corporate bylaws
• Hold appropriate incorporation meetings, including the first meeting of the Board of Directors
• Obtain any required licenses or permits from the county or state governments
Once these items are complete, the organization petitions the Internal Revenue Service to grant it tax exempt status.

Legal Representations Of Churches Services

Religious organizations offer many services to their communities. Some of the activities are directly related to the church and operation of the church, while others involve the community outreach. Because of the diverse and varied nature of church activities law firms that represent churches assist churches with the following transactions:
• Guidance on day to day operations of the church
• Guidance on corporate governance of nonprofit exempt organization
• Representation of church before governmental agencies, including the Internal Revenue Code
• Representation of church in actions where the church is the plaintiff or vice versa
• Setting up and dissolving nonprofit organizations
• Provide advice and counsel on legal questions about general and specific corporate matters
• Develop children’s safety procedures
• Develop employment procedures including new hire program and employee handbook
• Develop volunteer procedures
• Develop temporary staffing procedures for events or missions
• Obtain necessary travel documents and visas for international church activities or retreats
• Representation of church in real estate transaction including buying and selling church property, renting church property, processing bequeaths or estate gifts
• Representation of church in litigation
• Representation of church in mergers or acquisitions of other churches
• Investigating white collar crimes and creating financial controls to minimize theft of church funds or property

Reasons Church Need An Attorney

• Every new church planter should talk to a lawyer familiar with churches, and ask about forming a corporation or similar entity. The legal risks are too high and the solution is relatively easy.
• If you are updating a corporate charter, constitution, bylaws, or similar governing document, talk to an attorney.
• If you haven’t updated your main governing documents in awhile, the church should touch base with an attorney. Hopefully, you have a relationship with a trusted legal advisor that you meet with every year. But if it’s been more than five years, please set aside an hour or two for a review.
• If you are updating your policy manual, it’s wise to have them reviewed by an attorney. If you don’t yet have a policy manual, you should’ve talked to a lawyer a long time ago.
• If the church is granting housing allowance to ministers, an experienced lawyer will help your decisions be supportable and defensible.
• If you’re making a major change in compensation or benefits to key staff, a quick review by a lawyer may save headaches down the road.
• If you are purchasing real estate, the church should use an attorney to make sure the deal doesn’t result in surprises (environmental contamination, zoning issues, etc.)
• If your church is going to terminate the employment of anyone, it is a good time to talk to an attorney. Non-ministerial employees are often subject to the same laws and regulations affecting other businesses. And while the Constitution gives churches broad leeway over “ministerial” employees, those decisions also have legal and political implications.
• A new or unusual fundraising method should be run by a lawyer who understands the charitable solicitation laws in the relevant areas. An improperly designed used-car donation program, eBay ministry, or commission-based solicitor can risk the church’s tax exemption.
• Any significant investment agreement should be reviewed by an attorney. Is the church issuing bonds? Engaging in creative financing? Offering interest? Expecting to receive a return on an investment? Developing real estate? Engage legal counsel.
• If the church is contacted by the IRS or the State or local equivalents, you should talk to an attorney, and have them respond.
• If your church receives communication about a zoning issue, it will be helpful to talk to an attorney before you make any response.
• If the church is contacted by an attorney representing someone else, you should respond through an attorney.
• If your church is engaged in church discipline, or removing members, talk to an attorney about your process. If you are contacted by an attorney representing a member, please have a church attorney respond.
• If your church becomes aware of allegations of sexual misconduct by any employee, contractor, volunteer or associate, contact an attorney immediately.

• If the sexual misconduct includes any person under 18 or over 65, contact an attorney immediately. In many states, ministers and other authorities are required to take very specific steps in a short timeframe. An attorney can make sure it is implemented properly.
• If any staff, contractor, or volunteer is alleged to have taken unfair advantage of an elderly, infirm, or disabled person, talk to an attorney immediately. Some states have implemented “elder abuse” laws similar to child abuse laws, with similar reporting requirements.
• If there is a potential conflict of interest transaction, it is helpful to involve an attorney before it is proposed and approved.

When Does A Church Need An Attorney?

When someone is starting or joining leadership in a religious institution, legal considerations are often towards the bottom of the priority list. However, religious institutions of all faiths need to be aware of areas where they may need advice from a licensed attorney in order to best serve their membership and carry out their faith.

Here are some of the most common areas where a church or other religious organization should consult an attorney.

• Governing Documents: The majority of religious organizations operate under the direction of one or more governing documents. It is absolutely vital that these documents be kept up to date and reviewed on a regular basis. An attorney will be able to provide valuable advice and suggestions about what to include in these documents to give the maximum protection to the organization.
• Real Estate and Land Use: If your religious institution needs to move locations or expand its current location, an attorney will often be necessary. In this case, an attorney can help with reviewing your real estate transaction documents, determining whether your land use is permitted in the proposed location, or securing a variance or special use permit from the municipality if necessary.
• Employment: When hiring and firing lay employees, religious institutions must consider state and federal employment law. Discussing particular employment situations with an attorney before acting can save an organization thousands of dollars and an immeasurable amount of negative public perception. Further, an attorney can help prevent difficult situations in the first place by providing your organization with a clear and comprehensive employee handbook.
• Litigation: This is the obvious scenario where an attorney is needed. If a religious institution is presented with a lawsuit, it should immediately seek out an attorney with experience representing religious institutions, as the unique culture and issues in these types of lawsuits often call for a specialist. An attorney specializing in representing religious institutions will be able to better understand issues that are important to the organization, and will be familiar with the special challenges and opportunities presented.
• Denominational Relations: In today’s changing culture, many of the traditional denominations in Utah are changing also. It is inevitable that some congregations will feel called away from their past denominational affiliations for one or more reasons. When separation is being considered, it is vital to consult an attorney who is familiar with the process of leaving a denomination. Various legal issues will need to be considered before undertaking a separation and an understanding and knowledgeable counselor will ease the transition for all involved.
• Organizational Discipline: Many faiths have unique practices for disciplining individual members when necessary. However, there can be potential for some inter-organizational discipline practices to create legal issues. Having an attorney review organizational policy and provide advice on a particular issue can prevent unintended legal consequences.
• Advice on Current Legal Issues: As the culture changes rapidly, new legal issues arise frequently. Religious organizations must be prepared to operate in the light of these new realities. In these cases, an attorney will be an invaluable resource as a counselor who understands both the law and the client, and will be able to shed light on an otherwise confusing situation.

Law Of Church Governance And Property Disputes

Property and governance issues are often at the forefront in a church dispute:
• Governance Issues: These often occur when there are struggles for control within a congregation or a church body. In nonhierarchical church bodies, disputes often arise between different factions who rival for control of the church.
• Control Of Church Property: Disputes over property are usually a key issue when a church body splits. When a local church congregation breaks off from a larger church structure that is hierarchical in nature, disputes often arise over which body has rights in the church property.
All of these situations must be handled with the utmost care and sensitivity. Governance issues may result in religious employment litigation. When a church splits from a denomination, it is more than a matter of conflicting belief systems or leadership squabbles. Ownership of church buildings must be settled between a denomination and a congregation that is leaving that denomination. Possession and management of endowment funds may also be in question. It is often in the best interests of both sides to resolve the property or governance question without resorting to costly litigation. However, a desire to settle church building ownership or other questions of congregational control may not be enough to avoid a major lawsuit. It is critical to find a well-qualified attorney with experience handling church disputes, both to contain legal fees and to move forward with confidence toward a satisfactory resolution. Every church needs governing documents that define the organization’s scope and determine how it is run. Whether the church is organized as a religious nonprofit corporation or as a nonprofit association, a charter, bylaws, and other guiding documents are necessary for a wide variety of reasons, from basic operations to establishing proper tax treatment, managing assets, and controlling liability. As a church grows and evolves, it’s normal to need to make changes to governing documents.

There are some general steps that apply to each case:
• Take Stock Of Existing Documents: Many organizations, including churches, make the mistake of losing sight of their governing documents and discover conflicts only after they’ve become a real problem. Treating documents as living, breathing things is a helpful way to ensure that issues can be addressed. Doing so as a director is also an important part of satisfying one’s fiduciary obligations to the church. When changes do need to be made, it’s a good idea to review the entire document for any other improvements that could be made at the same time.
• Understand Technical Requirements: A particular governing document, like an incorporated church’s bylaws, typically will have a prescribed process for making amendments. In addition to these rules, changes to a particular document may be subject to state law or the rules of a church’s parent organization, if applicable.
• Reach A Consensus: Following the church’s governing rules, the board or other leadership group should discuss why changes need to be made and proposals for new language. An attorney’s help is often necessary to ensure that proposed changes won’t create other problems.
• Document Approvals: Regardless of how a church is organized it’s important that the leadership group’s approval of changes to its governing documents be memorialized in writing, either with meeting minutes or, if permitted, by a written consent. Certain types of documents, like corporate charters, may need to be submitted to the state before they will take effect.
• Notify Applicable Parties: If the church has relationships with outside organizations that rely on its governing documents, they will need to be provided with the updated versions. Banks are a common example of organizations that routinely refer to client governing documents to verify that formalities are satisfied.

Church Attorney In Utah

When you need legal help for a church in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

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

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Utah Code 78A-6-503

Utah Code Title 78A-6-503: Judicial process for termination, Parent unfit or incompetent and Best interest of child

• For this reason, the termination of family ties by the state may only be done for compelling reasons. Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.

• The court shall provide a fundamentally fair process to a parent if a party moves to terminate parental rights.
• If the party moving to terminate parental rights is a governmental entity, the court shall find that any actions or allegations made in opposition to the rights and desires of a parent regarding the parent’s child are supported by sufficient evidence to satisfy a parent’s constitutional entitlement to heightened protection against government interference with the parent’s fundamental rights and liberty interests.
• The court should give serious consideration to the fundamental right of a parent to rear the parent’s child, and concomitantly, of the right of the child to be reared by the child’s natural parent. The fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child is recognized, protected, and does not cease to exist simply because a parent may fail to be a model parent or because the parent’s child is placed in the temporary custody of the state.
• At all times, a parent retains a vital interest in preventing the irretrievable destruction of family life.
• Prior to an adjudication of unfitness, government action in relation to a parent and a parent’s child may not exceed the least restrictive means or alternatives available to accomplish a compelling state interest.
• Until parental unfitness is established and the children suffer, or are substantially likely to suffer, serious detriment as a result, the child and the child’s parent share a vital interest in preventing erroneous termination of their relationship and the court may not presume that a child and the child’s parents are adversaries.

• For these reasons, the court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so. Additionally, the integrity of the family unit and the right of parents to conceive and raise their children are constitutionally protected.  A child’s need for a normal family life in a permanent home and for positive, nurturing family relationships is usually best met by the child’s natural parents. It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.
• The right of a fit, competent parent to raise the parent’s child without undue government interference is a fundamental liberty interest that has long been protected by the laws and Constitution of this state and of the United States, and is a fundamental public policy of this state.
• The state recognizes that:
1. a parent has the right, obligation, responsibility, and authority to raise, manage, train, educate, provide for, and reasonably discipline the parent’s children;  and
2. the state’s role is secondary and supportive to the primary role of a parent.
3. It is the public policy of this state that parents retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of their children.
4. The interests of the state favor preservation and not severance of natural familial bonds in situations where a positive, nurturing parent-child relationship can exist, including extended family association and support.
• This part provides a judicial process for voluntary and involuntary severance of the parent-child relationship, designed to safeguard the rights and interests of all parties concerned and promote their welfare and that of the state.
• Wherever possible family life should be strengthened and preserved, but if a parent is found, by reason of his conduct or condition, to be unfit or incompetent based upon any of the grounds for termination described in this part, the court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered.

Termination of parental rights is a court order that permanently ends the legal parent-child relationship.

This type of order terminates rights such as inheritance, custody, and visitation, as well as responsibilities such as child support and liability for the child’s misconduct. Parental rights can be terminated voluntarily by the parent(s) to allow an agency, independent, or stepparent adoption to take place. Parental rights may also be terminated involuntarily when the court finds one or both parents to be unfit. In general, the court will only order the termination of parental rights if someone else is prepared to assume those rights, usually by adopting the child. The court will not order the termination of parental rights if that would leave the child with only one parent responsible for care and support.

Juvenile Dependency Court

The child becomes a ward of the court when someone (usually CPS) reports mistreatment. Termination is involuntary when the court finds that the parents have abused, neglected, or abandoned a child, and/or that the parent suffers from some mental or physical incapacity, including substance abuse, that prevents them from caring for the child. Parental rights are terminated in these situations so that the child may be adopted.

Family Court Adoption Proceedings Lawyer

Both birth parents may voluntarily terminate their parental rights when relinquishing the child for an agency or independent adoption. Termination is with the consent of the non-custodial parent, or without their consent if the court finds that the parent has willfully abandoned the child. The father’s parental rights can be terminated without his consent if the court finds that his continuing relationship is not in the child’s best interest. Termination of parental rights is seen by the courts and should be seen by litigants as an extremely serious matter. As a biological or adopted parent of a child, one has certain rights that cannot easily be taken away. While you may feel that your deadbeat ex isn’t worthy of the privilege of time with your child, the courts look on the matter differently, taking a child’s needs and well-being into account over a parent’s personal grievances. “Parental rights cannot be terminated in family court at the request of one parent simply because the other parent is a ‘bad parent.’ The inclination of the court is always to preserve the parental relationship if possible. However, that in extreme cases of abuse or neglect, parental rights may be terminated. “These cases are not initiated by one parent or the other. These cases fall under the jurisdiction of the juvenile dependency courts and are generally referred by child protective services.

Revoking parental rights, awarding sole legal and physical custody to the complaining parent is akin to the death penalty of parenting, as it strips full decision-making authority and eliminates parenting time for the other parent. Consequently, modifications in child custody and parenting time are more likely to be the legalities that are adjusted when one parent questions the other’s dedication to their children. And even when parental rights are terminated, the banished parent might subsequently regain his or her rights. It’s critical to understand exactly what you’re giving up by pressing to terminate parental rights. While your life may be easier without the stress of your fellow parent’s behavior in the picture, there is the financial aspect to consider. “You are also terminating their parental responsibilities, including financial child support, and the child’s right to potentially take under a parent’s will or under state intestacy laws.” Keep in mind that to win a case to terminate parental rights, you’ll need to present very persuasive evidence to the court, such as lack of contact, lack of support, abandonment, abuse, neglect, ongoing indifference, or failure to care for the child. You’ll have to show that the other parent is a danger to the child or is actively trying to destroy the relationship between the child and the custodial parent. For instance, if the non-custodial parent is trying to alienate the child from the custodial parent, the court could very well terminate all parenting time for the non-custodial parent and keep that parent out of the decision-making process for the child. But even such evidence might not be sufficient. Any shred of hope in the parent-child relationship wills most likely result in a denial of the request to terminate parental rights.”

Stepping Into A New Role

Termination of parental rights may be slightly easier to achieve if the request is made in the context of an adoption, where a stepparent comes in to take the place of the biological parent. There are still hoops to jump through to achieve termination of parental rights before a stepparent can adopt a child. The parent requesting termination must prove that the other parent has completely failed to contact the child, has failed to financially support the child, or has abandoned the child, or that the other parent is unknown and cannot be found. When you’re locked in a child custody battle with your former spouse, you want to ensure that you conduct yourself in a positive way to improve your chances of getting preferential custody. Even if you are an excellent parent, you need to prove it in a court of law if you want to see your children, and your word alone isn’t enough to satisfy a judge. In order to reach the best possible outcome, you need to not only prove that you are an excellent parent, you need to illustrate that your former spouse is a less dependable choice. As a parent, you must always be cognizant when keeping records for your children. If you don’t practice careful recordkeeping, your children will be at a disadvantage when it comes to school, health, and overall happiness. Loving parents are always involved in every aspect of their children’s lives, and they have the documents to prove it. Keep a file of the following records to prove that you are a great parent:
• Birth Certificate
• Social Security Card
• Academic Transcripts
• Behavioral Reports
• Awards and Certifications
• Health Records
When you’re making your claim for custody in court, you want to effectively communicate why your children will be safer with you than your former spouse. Pleading for custody and promising that you will be the better parent isn’t going to convince the judge that you deserve preferential custody. Utilizing a story that showcases your devotion to your children is a more effective strategy for appealing to the judge’s logos and pathos.

Perhaps you can tell a story about a time when you were there for your children when your spouse was unavailable or maybe you can detail some of the important and unique connections you share with your children. Either way, you want the judge to perceive your relationship with your children as vital to their well-being and development. In the context of family laws, an “unfit mother legal proceeding” is a legal proceeding in which a mother’s ability and willingness to raise a child or children is examined by the court. Generally speaking, any parent or guardian can be deemed unfit based on their actions or conduct. However, these proceedings are called “unfit mother” proceedings because, in a disputed custody situation, the biological mother is traditionally granted custody unless otherwise specified.
Factors that can lead a court to deem a parent unfit include:
• Instances of abuse or neglect;
• Willing failure to provide the child with basic necessities or needs;
• Abandonment of the child or children; or
• Exposing the child to emotionally harmful or psychologically damaging situations

State laws may differ with regard to these proceedings, but if a father, mother, or legal guardian of a child is deemed to be unfit, it may result in various consequences. These are broadly intended to place the child in a better position of care. These consequences may include:
• Loss of child custody or visitation privileges;
• Loss of the ability to make important legal decisions on behalf of the child;
• Transfer of custody to another parent or guardian as deemed by the court; or
• Placement of the child or children for adoption.
In some cases, a ruling of unfit parent can have effects in other areas of the parent’s life. For instance, civil damages can also result if the child or other parties have suffered major injuries or losses due to the parent’s actions.

In cases of serious or ongoing abuse, criminal charges can also result. In order to deem a parent unfit, the court first needs to be provided with sufficient evidence in support of such accusations. This can come in various forms including witness testimony, police reports, school reports, and other sources. Also, courts may also examine the mental health and physical state of the child as part of the analysis. If there is no basis for such a ruling, then the court will generally dismiss the accusation of being unfit. In fact, many frivolous legal proceedings involve false accusations of unfit parenthood by the other parent. Filing a frivolous legal claim can result in serious negative legal consequences for that parent. In recognition of these types of concerns and issues, courts will make all custody decisions using the child’s best interest standard. This means that they will examine all evidence and circumstances in order to create the parenthood arrangement that most benefits the child.

Can a Non-Parent Become a Child’s Guardian?

In some cases, the court may need to appoint a person who is not the child’s biological parent to step in and become the child’s legal guardian. This can happen in a wide range of circumstances, and can involve many different situations. A non-parent may be appointed guardian in situations such as:
• Both biological parents of the child were deemed unfit by the court;
• One parent was deemed unfit, and the other biological parent became incapacitated;
• One or both of the parents became deceased;
• One or both of the parents became incarcerated or otherwise unavailable; and
• Various other unique, but uncommon, circumstances.
In most cases, the courts will try and select a guardian who can do fulfill their role and responsibilities well. They may select persons such as:
• Close relatives, such as an aunt, uncle, or other similar family members;
• Grandparents of the child on either side;
• Close family friends who are trustworthy and preferably have an established relationship or prior contact with the child; or
• Any other adult whom the court deems as meeting the requirements for guardianship.

In many cases, courts may often appoint the grandparents of the child to be the legal guardian or guardians. This is because in many instances, the grandparents already have a previous relationship to the child or children, and are often in a position financially to provide for children. Unfit parent proceedings can involve some major legal decisions and issues that can determine the child’s upbringing. You may need to hire a child custody lawyer in your area if you or a loved one will be involved in any type of unfit parent determination. Your attorney can provide you with legal advice and research to determine what types of legal rights you have. Also, if you need to file a claim or if you need to appear in family court, your lawyer will be able to represent you during the process as well.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

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

Ascent Law LLC

4.9 stars – based on 67 reviews

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How To Find The Right Divorce Attorney

Although divorce is common throughout the United States, the divorce process varies depending on the couple’s situation. Short-term marriages without children or property typically result in a less complex and time-consuming divorce than long-term marriages with significant property entanglements, marital debt, and minor children. Additionally, divorcing couples who work together to negotiate the terms of the divorce (child custody, child support, property division, debt allocation, and spousal support) will experience a less expensive and less stressful divorce than couples who can’t agree or refuse to work together.

Filing the Divorce Petition

Whether both spouses agree to the divorce or not, before any couple can begin the divorce process, one spouse must file a legal petition asking the court to terminate the marriage. The filing spouse must include the following information:
• a statement which informs the court that at least one spouse meets the state’s residency requirements for divorce
• a legal reason—or grounds—for the divorce, and
• any other statutory information that your state requires.
Residency requirements vary depending on where you live. States usually require at least one spouse to live in the state anywhere from 3 months to 12 months, and in the county where the spouse files at least 10 days to 6 months before filing the petition. Divorcing spouses must meet the state’s residency requirement before the court can accept the case. Grounds for divorce vary from state-to-state. However, all states offer divorcing couples the option to file a no-fault divorce. No-fault divorce is a streamlined process that allows spouses to file a divorce petition without listing a specific reason or placing blame on either spouse. If your spouse committed marital misconduct or caused the breakup, some states allow parties to claim fault for the divorce, like adultery or neglect. If you’re unsure whether you should file a no-fault or fault divorce, contact an experienced family law attorney in your state for guidance.

Moving The Court for Temporary Orders

Courts understand that the waiting period for divorce may not be possible for all couples. For example, if you are a stay-at-home parent that is raising your children and dependent on your spouse for financial support, waiting for 6-months for the judge to finalize your divorce probably seems impossible. When you file for divorce, the court allows you to ask the court for temporary court orders for child custody, child support, and spousal support. If you request a temporary order, the court will hold a hearing and request information from each spouse before deciding how to rule on the application. The judge will usually grant the temporary order quickly, and it will remain valid until the court orders otherwise or until the judge finalizes the divorce. Other temporary orders may include a request for status quo payments or temporary property restraining orders. Status quo orders typically require the breadwinner to continue paying marital debts throughout the divorce process. Temporary property restraining orders protect the marital estate from either spouse selling, giving away, or otherwise disposing of marital property during the divorce process. Restraining orders are usually mutual, meaning both spouses must follow it or risk being penalized by the court. If you need a temporary order but didn’t file your request at the time you filed for divorce, you’ll need to apply for temporary orders as quickly as possible. When you file for divorce, the court allows you to ask the court for temporary court orders for child custody, child support, and spousal support.

Serve Your Spouse and Wait for a Response

After you file the petition for divorce and request for temporary orders, you need to provide a copy of the paperwork to your spouse and file proof of service with the court. Proof of service is a document that tells the court that you met the statutory requirements for giving a copy of the petition to your spouse. If you don’t properly serve your spouse, or if you neglect to file a proof of service with the court, the judge will be unable to proceed with your divorce case. Service of process can be easy, especially if your spouse agrees with the divorce and is willing to sign an acknowledgment of service. However, some spouses, especially ones that want to stay married or make the process complicated, can be evasive or try anything to frustrate the process. The easiest way to ensure proper service is for the filing spouse to hire a professional who is licensed and experienced in delivering legal documents to difficult parties. The cost is usually minimal and can help prevent a delay in your case. If your spouse retained an attorney, you could arrange to have the paperwork delivered to the attorney’s office.

The party who receives the paperwork (usually titled “defendant” or “respondent”) must file an answer or reply to the divorce petition within a prescribed amount of time. Failure to respond could result in a “default” judgment against the non-responding spouse, which can be complicated and expensive to reverse. The responding party has the option to dispute the grounds for divorce (if a fault divorce), the allegations in the petition, or assert any disagreements as to property, support, custody, or any other divorce-related issues.

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Mediation to Negotiate a Settlement

In cases where the parties have differing opinions on important topics, like child custody, support, or property division, both spouses will need to work together to reach an agreement. Sometimes the court will schedule a settlement conference, which is where the parties and their attorneys will meet to discuss the status of the case. The court may schedule mediation, which is where a neutral third-party will help facilitate discussion between the spouses in hopes to resolve lingering issues. Some states require participation in mediation, while others do not. However, mediation often saves significant time and money during the divorce process, so it’s often a good route for many divorcing couples.

Divorce Trial

Sometimes negotiations fail despite each spouse’s best efforts. If there are still issues that remain unresolved after mediation and other talks, the parties will need to ask the court for help, which means going to trial. A divorce trial is costly and time-consuming, plus it takes all the power away from the spouses and puts it in the hands of the judge. Negotiations and mediation sessions allow the couple to maintain control and have more predictable results than a divorce trial, so it’s best to avoid a trial if possible.

Finalizing the Judgment

Whether you and your spouse negotiated throughout the divorce process, or a judge decided the significant issues for you, the final step of divorce comes when the judge signs the judgment of divorce. The judgment of divorce (or “order of dissolution”) ends the marriage and spells out the specifics about how the couple will allocate custodial responsibility and parenting time, child and spousal support, and how the couple will divide assets and debts. If the parties negotiated a settlement, the filing spouse’s attorney typically drafts the judgment. However, if the couple went through a divorce trial, the judge will issue the final order.

Quick Divorce

In many states, an expedited divorce procedure is available to couples who haven’t been married for very long (usually five years or less), don’t own much property, don’t have children, and don’t have significant joint debts. Both spouses need to agree to the divorce, and must file court papers jointly. A summary (sometimes called “simplified”) divorce involves a lot less paperwork than other types of divorce; a few forms are often all it takes. For this reason, summary divorces are easy to do without the help of a lawyer.

Uncontested Divorce

In terms of dealing with the court process, the path that normally generates the least amount of stress is an uncontested divorce. That’s one in which you and your spouse settle up-front all your differences on issues such as custody and visitation (parenting time), child support, alimony, and division of property. You’ll then incorporate the terms of your settlement in a written “property settlement agreement” (sometimes called a “separation agreement”). Once your case is settled, you can file for divorce with the court. Courts almost invariably fast-track these types of cases, so you can get divorced in a relatively short period of time. In some states, you may not even have to make a court appearance, but rather can file an affidavit (sworn statement) with the court clerk.

Default Divorce

A default divorce occurs when you’ve filed for divorce, and your spouse doesn’t respond. You’d likely see this, for example, if your spouse has left for parts unknown and can’t be found. Assuming you’ve complied with the court’s rules and regulations, a judge can grant the divorce despite the fact your spouse hasn’t participated in the court proceedings. On its face, this may seem like the ideal situation. No one is there to contest what you’re asking the court to give you. But be aware that there are pro and cons to a default divorce.

Contested Divorce

If you and your spouse are at loggerheads over one or more marital issues, to the point that you can’t come to an agreement, then it will be up to a judge to decide those issues for you. This is what’s meant by a contested divorce. Contested divorces are stressful, time-consuming, and expensive (think mounting attorneys’ fees). You’ll go through a lengthy process of exchanging financial and other relevant information, mandatory settlement negotiations, and court hearings for temporary relief, such as interim alimony, for example, if warranted. And if you can’t resolve the case after all that, there will be a court trial. The burdens of a contested divorce are why the vast majority of divorce cases ultimately settle at some point before trial.

Fault and No-Fault Divorce

This refers to the grounds (reasons) on which you’re basing the divorce. Your state’s laws will set out the permissible grounds for divorce. In the not-too-distant past, people who wanted to dissolve their marriage had to show that the other spouse was guilty of wrongdoing, such as adultery or cruelty. Needless to say, accusing your spouse of misconduct could make for quite a contentious divorce. Now, however, all states offer some form of “no-fault” divorce. In a no-fault divorce, instead of proving that a spouse is to blame for the marriage failing, you merely state that you and your spouse have “irreconcilable differences,” or have suffered an “irremediable breakdown” of your relationship.

Mediated Divorce

Before filing for divorce, options are available to you if you need assistance in trying to resolve your differences. These are referred to as “alternative dispute resolution” (ADR) methods. One of those is divorce mediation. Here, a trained neutral third party (the mediator), sits down with you and your spouse to try to help you resolve all of the issues in your divorce. It’s not the mediator’s job to make decisions for you. Rather, mediators offer guidance and help you communicate with each other until; hopefully, you reach a meeting of the minds. A successful mediation usually ends with the preparation of a property settlement agreement.

Collaborative Divorce

Another ADR option is “collaborative divorce”. This entails working with lawyers who are specially trained in this method of settling divorces. The spouses hire their own lawyers, each of whom is obligated to work cooperatively, with the sole purpose of trying to settle your case. Each spouse agrees to disclose all the information that’s necessary for fair negotiations, and to meet with each other and both lawyers, as often as necessary, to attempt to reach a settlement. You all must agree that if your divorce doesn’t settle through the collaborative process, your original attorneys will withdraw and you’ll have to hire different attorneys to take your case to court. This is done to ensure that all participants, including the attorneys, are acting in good faith, with nothing to gain from veering away from the goal of settlement.

Divorce Arbitration

In states that allow it, a third form of ADR is “divorce arbitration”. This option is the most similar to a trial, because the arbitrator (usually an attorney or a retired judge) will make a decision on your marital issues, after being presented with the facts of your case and reviewing the documentation you would ordinarily produce at trial. The benefits of arbitration are that it’s typically conducted in an informal and thus less intimidating setting than a courthouse (usually the arbitrator’s office) and, as with the other forms of ADR, allows you the flexibility of picking meeting times that fit your schedules. This makes it more cost-effective than having to make court appearances, which often involve sitting around racking up attorneys’ fees while waiting for a judge to become available.

Utah Divorce Lawyer

When you need to get divorced in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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

Ascent Law LLC

4.9 stars – based on 67 reviews

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When Should You Consider Bankruptcy?

For many individuals, filing for bankruptcy relief can provide a way out of debt and a fresh financial start. But whether a bankruptcy filing is in your best interest will depend on many factors and your circumstances. Read on to learn more about what to consider if you are thinking about filing for Chapter 7 or Chapter 13 bankruptcy. Bankruptcy will impact your credit score for years to come. So it’s a good idea to evaluate all of your options before deciding to file for bankruptcy. Many creditors are willing to work with debtors to settle their debts. If you can resolve your financial issues outside of bankruptcy, you might not need to file for bankruptcy. Chapter 7 bankruptcy works well for people who can protect all of their property with exemptions, whose income is low enough to meet qualification requirements, and whose debt is the type that bankruptcy will discharge.

By contrast, Chapter 13 bankruptcy works best for people:
• whose income is too high to qualify for Chapter 7 bankruptcy
• who would like to save a house from foreclosure or a car from repossession, or
• who want to pay back nondischargeable debt, such as back child support or income tax debt, through a three- to five-year repayment plan.
So when considering whether it’s in your best interest to file for Chapter 7 or Chapter 13 bankruptcy, keep in mind that it will depend on numerous factors including:
• the type of debts you owe
• your income and expenses
• whether you’ll lose property, and
• what you hope to achieve with bankruptcy (such as keeping a house or car)
Before you file your case, you’ll want to think about the goals because a bankruptcy discharge doesn’t eliminate certain types of debt (called priority obligations). For instance, you can wipe out most credit card obligations, medical bills, and personal loans. But you can’t discharge domestic support obligations (such as child and spousal support), newer tax debt, student loans (unless you can prove undue hardship), and more. Filing for bankruptcy might not be in your best interest if you can’t get rid of your debt. However, bankruptcy can help in other ways. For instance, you can pay off nondischargeable debt over three to five years in a Chapter 13 case. If you have debts secured by your property (such as a mortgage or car loan), your lender can foreclose on the home or repossess the car if you default on your obligation (or take any other property that serves as collateral for the debt). Your lender has this right because of the lien you agreed to when you took out the loan. In most cases, you can’t wipe out your lender’s lien on the property with a bankruptcy discharge. Even after the bankruptcy, if you don’t make the loan payments, the lender can take back the property. However, bankruptcy’s automatic stay can stop or delay the foreclosure and repossession process. The relief afforded by the stay in Chapter 7 bankruptcy is usually temporary. But filing for Chapter 13 bankruptcy might allow you to:
• keep the property and catch up on your missed payments
• reduce the balance of your loan if you qualify for a cram down, and
• eliminate wholly unsecured junior liens from your house through a process called lien stripping.

If you don’t make the required payments on your debts, your creditors can take you to court to recover their money. A creditor that obtains a judgment against you in court can use it to garnish your wages or place a lien on your assets. Some creditors, like the IRS or your student loan lender, can take action without stepping into the courtroom. When you file for bankruptcy, an automatic stay goes into effect that stops almost all collection actions, including lawsuits and garnishments. Filing for bankruptcy relief can also eliminate the underlying debt. One of the most important things to consider before filing for bankruptcy is whether you’ll be able to keep all of your property. Bankruptcy exemptions allow you to protect a certain amount of assets in any bankruptcy chapter that you file. What will happen to nonexempt assets will depend on whether you file a Chapter 7 or Chapter 13 bankruptcy.
• Chapter 7 bankruptcy. A Chapter 7 bankruptcy trustee has the authority to sell any assets you can’t exempt and to use the proceeds to pay back your creditors.
• Chapter 13 bankruptcy. You can keep all of your property in a Chapter 13 bankruptcy. However, you’ll have to pay your unsecured debts (such as credit card balances, medical bills, and personal loans) at least an amount equal to the value of your nonexempt assets. If you have a significant amount of nonexempt property, filing for bankruptcy might not be in your best interest.

Exempt Equity

People who file for bankruptcy don’t lose all of their possessions. A bankruptcy filer can protect or exempt a certain amount of assets regardless of the bankruptcy chapter filed. The dollar amount of an ownership interest that you can protect is called exempt equity. Calculating exempt equity is a two-step process. First, you’ll find out how much of an item’s value you can protect, or exempt. You’ll do so by consulting your state’s exemption statutes. Although some exemption statutes tell you the number of items that you can protect, such as one motor vehicle or all prescribed health aids, others allow you to keep property valued up to a particular amount. For instance, you might be able to retain $50,000 in a home or $10,000 in household items. The dollar amount tells you how much equity you can exempt. The next step is figuring out how much equity you have in your property (the funds remaining after selling the property and paying off any outstanding loans). Suppose, for instance, that you were considering selling your house. To figure out the amount of your equity for bankruptcy purposes, you’d subtract your mortgage from the market value (the price your house would sell for). The remaining amount would be your equity.
By contrast, if you own a bicycle free and clear, you’d be entitled to all sales proceeds. Therefore, your equity would be its market value. You can own property without equity, too. If you do, you won’t use an exemption because there won’t be anything to protect.
Both Chapter 7 and Chapter 13 bankruptcy have eligibility requirements. Your income must be low enough to pass the Chapter 7 means test. By contrast, in Chapter 13 bankruptcy, the amount you owe cannot exceed certain dollar limits. Also, you must have enough income to support your Chapter 13 repayment plan.

Bankruptcy Do’s and Don’ts

If you are having difficulty paying your bills, bankruptcy may be a good solution for you. Carefully review the list below to avoid common mistakes, and get the maximum legal benefit, should you choose to file bankruptcy:
The Do’s
• Do seek competent legal advice! Filing for bankruptcy is an important personal decision. But bankruptcy law so complex that it’s almost impossible to understand all consequences of bankruptcy without talking to an experienced bankruptcy attorney. Before taking any financial steps, seek advice of experienced bankruptcy counsel.
• Be completely honest with your attorney. During your initial consultation, your attorney will ask you a series of questions to obtain an in-depth picture of your financial situation. You must answer these questions completely and honestly. An attorney cannot represent you effectively if you are not completely honest with us.
• Do provide your attorney with all the documents he requests. Your attorney will provide you with a list of necessary documents. Collecting all of these documents may take some time, but it’s important that you provide us with every item on that list.
• Do carefully read your bankruptcy petition: The Attorney will provide you with a draft copy of your petition before your appointment to sign the document. Please carefully review the petition before coming in to sign it. Do be completely honest on your bankruptcy petition. When you sign your bankruptcy petition, you are declaring that all the content in the petition is true and correct. Knowingly making false statements on your bankruptcy petition could result in your debts not being discharged, or, worse yet, result in criminal prosecution.
• Do fill out your Federal and State income tax returns. Our San Jose bankruptcy attorneys will need this information to effectively represent you. The bankruptcy trustee will also request to see these documents. Failure to provide copies of tax returns could mean that your debts won’t get discharged.
The Don’ts
• Don’t worry! Millions of Americans have filed for bankruptcy protection. Not being able to pay your debts is not a crime. It is not a sign of failure. You have a right to seek relief from bill collectors, wage garnishments, and foreclosures by filing bankruptcy!
• Don’t run up debts immediately before filing bankruptcy. Incurring debts prior to bankruptcy could result in those debts not being discharged. Worse yet, the court may deny your bankruptcy altogether!
• Don’t use a non-attorney “bankruptcy preparer” unless you have completely researched all relevant legal issues. The non-attorney “bankruptcy preparers” cannot give you legal advice. They cannot analyze your situation. In some instances, by filing unmeritorious petitions that eventually get dismissed, they can cause you to lose important legal rights!
• Don’t try to hide cars, homes, or other property from bankruptcy by transferring these assets to friends or relatives. This conduct can be bankruptcy fraud. The court may dismiss your bankruptcy case, or deny discharge of your debts.
• Don’t borrow from your 401K or a home equity line to pay off your credit card debts. You may be triggering unnecessary tax expenses, or risking losing your home.
• Don’t increase your overtime hours to try to pay off your debts. Increasing your pay may disqualify you for chapter 7 relief. It may also affect what you pay back in a Chapter 13 bankruptcy.
• Don’t negotiate debt reduction with your credit cards. Debt reduction may trigger tax consequences. Talk to an attorney before engaging in debt reduction.
• Don’t file bankruptcy without understanding the consequences. Filing a “skeleton petition” can stop foreclosure of your home. But it can also jeopardize important legal rights. Bankruptcy can provide you with debt relief and a fresh start. But make sure you understand your legal rights and obligations before filing bankruptcy.

What Happens After I File For Bankruptcy?

After you complete the process for filing personal bankruptcy, there is an immediate “stay of proceedings.” This part of the process protects you from unsecured creditors trying to begin or continue any legal actions against you, such as wage garnishees, lawsuits, or any type of contact with you to collect a debt. Within five days, your trustee will send a copy of the bankruptcy paperwork to all creditors so they can begin the process of filing a claim. Your trustee will also file any outstanding tax returns up until the date of bankruptcy. Any outstanding balances or penalties will be included. After your personal bankruptcy paperwork is complete, you will have obligations such as providing monthly income statements and attending credit counseling sessions. When your bankruptcy is discharged, your debts will be canceled. It is important to understand that there may be minor exceptions to the debt cancellations. A note about your bankruptcy will remain on your credit report for a minimum of 6 years after the date of discharge. Once your debts are canceled, usually 9 months after filing, you can begin rebuilding your credit.

When Should I File for Bankruptcy?

Despite what many think, filing for bankruptcy is not the end of the world. It can actually be the fresh start you have been looking for. The laws of bankruptcy were drafted with the purpose of giving people a second chance, and not to punish them. But that doesn’t mean you should file for bankruptcy at the first sign of financial distress. Declaring bankruptcy will have short- and long-term consequences and should only be done as a last resort.

Before You File, Evaluate Your Situation

When should I file for bankruptcy? This is a question most people under financial distress ask. You should probably consider other options before going this route. These options include:
• Getting credit counseling
• Trying to negotiate your debt or make a payment plan with your creditor
• Sticking to a budget
If, however, other options don’t seem feasible, filing for bankruptcy may give you the ability to get a fresh start. Bankruptcy is a process by which you can discharge some of your debt because you are unable to repay those debts. There are usually two ways bankruptcy is declared:
• You file for bankruptcy
• Your creditors ask the court to declare you bankrupt

Chapter 7 Bankruptcy

Chapter 7 bankruptcy, otherwise known as “straight bankruptcy” or “liquidation,” allows the debtor to sell their non-exempt assets to pay off their debts; after that, the debtor will be free from all dischargeable debts. There are specific eligibility requirements that you must meet to qualify for Chapter 7 bankruptcy. Some of the scenarios where you wouldn’t be eligible for Chapter 7 include:
• Your income is too high (this is determined using the “means test”): In such cases, your case may be filed under chapter 13 bankruptcy
• You have the ability to repay your debt
• You dismissed a bankruptcy case within the past 180 days
• You previously filed for bankruptcy and the time frame to file another bankruptcy case has not passed
• You attempted to defraud creditors

Chapter 13 Bankruptcy

Chapter 13 bankruptcy requires you to make a repayment plan to pay creditors over a period of three to five years. This method is usually used if your income exceeds the limits set for Chapter 7 bankruptcy. You also need to show you comply with the eligibility requirements before you can file Chapter 13. These include:
• You are not a business organization
• You took credit counseling
• You have not dismissed a Chapter 13 case within the past 180 days
• You have not filed for a Chapter 13 within the past two years
Things You Should Know Before You File for Bankruptcy
Before you decide to declare bankruptcy, there are a few things you should consider. These include:

Not All Debts Will Be Discharged

You should know that bankruptcy does not wipe out all your debts. Some debts that will not be discharged include:
• Student loans
• Child support
• Alimony
• Court fines or penalties
Debts such as credit card debts, loans, lease and contract obligations, and medical bills can be discharged.

Declaring Bankruptcy Will Affect Your Credit Score

In exchange for discharging your debt, filing bankruptcy shows everyone that you may be a credit risk, which will be reflected in your credit score. Thus, getting a loan, a mortgage, or a credit card may be very difficult after declaring bankruptcy. You should note bankruptcy filed under Chapter 7 will remain on your record for 10 years. If you filed under Chapter 13, it would stay on your credit report for 7 years. After that, it is erased.

Your Co-Signers May Be Required to Pay Your Debts

Co-signers are people who agree to pay your debt if you are somehow unable/unwilling to pay the debt. If you file a Chapter 7 bankruptcy, your creditors are allowed to go after the co-signer even if your bankruptcy case is successful. Under Chapter 13, your creditors can’t go after your co-signer as long as you make your regular payments per your agreement.

Filing for Bankruptcy During a Pandemic

Filing for bankruptcy during a pandemic or other national emergency may be challenging, as operational hours for courts may change. So, first, make sure your local bankruptcy court is open and taking cases before you file. You should also expect a delay in the processing of your case.

Utah Bankruptcy Lawyer

When you need legal help with bankruptcy in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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

Ascent Law LLC

4.9 stars – based on 67 reviews

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Utah Code 78A-6-502

Utah Code Title 78A-6-502: Judiciary and Judicial Administration

Definitions:
1. Division means the Division of Child and Family Services within the Department of Human Services.
2. Failure of parental adjustment means that a parent or parents are unable or unwilling within a reasonable time to substantially correct the circumstances, conduct, or conditions that led to placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by the Division of Child and Family Services to return the child to that home.
3. Plan means a written agreement between the parents of a child, who has been removed from the child’s home by the juvenile court, and the Division of Child and Family Services or written conditions and obligations imposed upon the parents directly by the juvenile court, that have a primary objective of reuniting the family or, if the parents fail or refuse to comply with the terms and conditions of the case plan, freeing the child for adoption.

Parental Rights

Parental rights are the set of legal rights granted to parents, which allow them to make important decisions on behalf of their child. Parental rights also refer to a parent’s right to take certain actions on behalf of their child. These rights reinforce the basic legal tenet that parents have the right to the care and companionship of their child. In general, parental rights include:
• The right to assume legal and physical custody of their child;
• The right to certain other rights related to visitation and contact with their child;
• The right to make fundamental decisions for their child such as the child’s education, religious beliefs, and medical treatments;
• The right to pass property on to their child through inheritance; and
• The right to enter into a contract on behalf of their minor child.
Parental rights are intended to ensure the wellbeing of the child. These rights are generally considered to automatically be granted to biological parents. However, they may also be extended to adoptive parents, foster parents, and legal guardians. Further, laws that define and specify parental rights and who may receive them vary widely from state to state. In the parent-child relationship, parents have some basic rights and responsibilities. Both parents automatically have the right to make decisions about the child’s education, religion, health care, and other important concerns. However, a court can take these rights away from a parent if either one violates the law or if the father fails to claim paternity. A parent also may voluntarily terminate these rights. Termination of parental rights ends the legal parent-child relationship.

Involuntary Termination of Parental Rights

Each state has its own statute(s) providing for the termination of parental rights. The most common reasons for involuntary termination include:
• Severe or chronic abuse or neglect
• Sexual abuse
• Abuse or neglect of other children in the household
• Abandonment
• Long-term mental illness or deficiency of the parent(s)
• Long-term alcohol or drug-induced incapacity of the parent(s)
• Failure to support or maintain contact with the child
• Involuntary termination of the rights of the parent to another child.

A parent can also lose their parental rights after being convicted of certain felonies. If a parent commits a crime of violence against their child or another family member, the court has the option to remove their rights and terminate the child-parent relationship. Also, if a parent is required to be imprisoned for a length of time that requires the child to enter foster care because there are no alternatives, the parent can lose parental rights.

Foster Care Attorney

If the termination of parental rights leaves a child with no legally responsible parents or guardians, the court will typically place the child in foster care. Before a state can take such a drastic action and place a child in foster care, it must file a petition under the federal Adoption and Safe Families Act (ASFA). However, state agencies aren’t required to petition in the following circumstances:
• The child has been in foster care for 15 of the last 22 months.
• The court has determined the child is an abandoned infant.
• The parent committed murder or voluntary manslaughter of another of his or her children

• The parent was otherwise involved in the murder or voluntary manslaughter of another of his or her children, i.e. aided, abetted, attempted, conspired, or solicited the act.
• The parent committed a felony assault that resulted in serious bodily injury to the child or another of his or her children.

Many states have adopted statutes that provide for more protections of children in the above circumstances, shortening the wait times required before parental rights can be terminated and the child is placed in foster care. However, more than half of the states also have exceptions to these guidelines, such as when the child is provided for by a relative or the state believes complete termination of parental rights isn’t in the child’s best interests. Most states consider a child’s best interests in termination proceedings. In some states, statutes use general language mandating that the child’s health and safety be paramount in all proceedings, while other states’ legislation lists specific factors that must be considered, such as the child’s age; the physical, mental, emotional and moral well-being; cultural and attachment issues; and the child’s reasonable preferences.

Reinstatement of Parental Rights

Most states don’t allow reinstatement of parental rights once they’ve been terminated. However, under some circumstances, such as when the child has not yet been permanently placed in a foster home, the parent may have the option to file a petition and show they’ve become fit to provide a safe and nurturing home. Typically, parents voluntarily terminate their rights when they wish to give the child up for adoption.

The main reason why parental rights may be terminated is for the child’s safety and wellbeing. The courts place high importance on the relationship between parents and their children. Therefore, should they decide to terminate parental rights, it would be for a very serious reason. Terminating parental rights is generally used to remove the child from an unhealthy or destructive environment, or as part of the adoption process. The court will always first consider the child’s best interests, which includes any time there is danger to a child’s physical, mental, moral, or emotional health.

The most common reasons why a court would terminate parental rights include:
• Child neglect, abuse, or deprivation;
• Untreated substance abuse on the part of the parent;
• Emotional illness, or mental illness or deficiency on the part of the parent;
• Child abandonment, an example being if the parent has not attempted to provide for their financial needs for an extended period of time, and they do not have a good reason for this;
• A crime has been committed against the other parent;
• Sexual assault; or
• Failure to adjust, such as the parent failing to correct any issues that previously caused the involvement of child protective services.
Parents themselves may willingly consent to terminating their parental rights. Doing so removes all of their legal rights to their child, and dissolves the parent-child relationship. Thus, the parent is not the child’s legal parent any longer. This relieves them of the legal responsibilities and duties to their child, such as the obligation to provide for the child’s basic needs. For example, there is no longer any obligation to pay child support, but there are also no longer any visitation rights. Further, the child may be adopted without the parent’s permission.

Cases in which a parent requests to terminate their parental rights are especially difficult. This is because courts tend to want children to have both parents in their lives, for emotional or financial support. However, if the parent believes they are endangering the child, it might be best that they relinquish their parental rights. Importantly, giving up parental rights simply to avoid dealing with a child’s behavioral issues or to avoid paying child support, will most likely be frowned upon by the court.

Parental rights may not be terminated for the following reasons:
• A parent has committed a crime and been incarcerated, but is now clean or has taken reformative action;
• Conflicts of religion, unless it endangers the child or ignores their best interests;
• The fact that a parent lives with a non-married member of the opposite sex; or
• The parent merely wishes to no longer be the child’s parent.
• It is important to note that the parental rights of both fathers and mothers are supposed to be equal.

However, fathers may have trouble asserting their parental rights, as it may be more difficult for them to establish that they are the legal parent of the child. Fathers must first prove that they are the child’s biological father. Then, once fatherhood has been established, the state cannot remove parental rights from the father, aside from any of the circumstances mentioned above.

• Another unique circumstance is if the parents are not married. It is not necessarily easier to terminate parental rights if the parents are not married, as the biological parents have the same rights as married parents if they are one family unit with their child. However, if the mother is married to a man who is not the child’s biological father, the mother’s husband is legally presumed to be the father of the child.
• Traditionally, cases involving unwed parents would often result in the termination of the biological father’s parental rights. More recently, the father’s rights movement has highlighted the potential damage done by denying a child access to their biological father.

• If a person becomes a parent through adoption or marriage, they have the same parental rights and responsibilities as a biological parent. As such, non-biological parental rights may only be terminated due to one of the reasons discussed above. Regardless of how a person came to be the child’s parent, they have the same rights to the child as long as they are the child’s legal parent.

Making a Parenting Agreement

A Parenting Agreement (sometimes referred to as a Parenting Plan) is a written statement that both parents sign up to as a way of establishing the ground rules around the way that they will parent apart. It can cover anything you both feel is important, most parents include things such parenting time arrangements, their children’s education and rules around new partners. Parenting Agreements work best when they are not too prescriptive, are flexible and are regularly updated to take account of children’s changing needs over time. You can wait to start writing a parenting agreement until you’ve nailed down details with the other parent, or you can create drafts earlier in the process. Ideally, parents should work together closely, rather than have one simply sign off at the end. You can have an attorney write your custody agreement or if you want to save money, you can write it yourself.

Your parenting agreement should contain any information that you and the other parent need to raise your child after you separate. The general parts of a parenting agreement are:
• A parenting time schedule
• Information about how the parents will make decisions for the child
• Information about finances and expenses
• Parenting provisions (rules about raising the child)
• Any other information you want to include
Your agreement should be personalized to fit the needs of your child and your unique situation. Each part of your agreement should work for your family and benefit your child.
A good schedule has the following:
• A residential schedule that shows where the child is on regular weekdays and weekends
• A holiday schedule
• A school break and vacation schedule
• Special events that show times when the normal schedule changes
Custody X Change guides you through the process of creating each part of your schedule. Then, it puts your schedule into a calendar so you know exactly what’s going on.
Creating your schedule with Custody X Change allows you to:
• Explore options for your schedule until you find the right one for your child
• Calculate the parenting time you’ll have with your child
• Easily make changes to your schedule as circumstances change
• Include time the child spends without either parent
• Sync your custody schedule with Google Calendar, iCalendar, etc.
• Share your schedule with the other parent so you both know what’s going on

Decision-making responsibility

Your agreement needs to explain how you and the other parent will make decisions for your child about medical care, dental care, education, religion, extracurricular activities, etc.
Here are some ways you can share or divide the decision-making responsibility:
• One parent has sole authority to make big decisions
• Both parents have authority to make big decisions individually
• Parents make all big decisions together
• Each parent is in charge of certain types of decisions
• When each parent has the child, they make decisions for the child
When you make your agreement in Custody X Change, the “decision-making” section of the parenting plan template helps you decide what decision-making authority to select and how to explain it.

Finances and expenses

In most states, you need to file child support papers along with your parenting agreement. You may want to include child support information in your agreement so you have everything together. Since support is often dependent on parenting time, you can use the parenting timeshare calculator to help you get the right information for your state’s child support formula. You should also come up with a plan for how you and the other parent will handle additional expenses for the child and put the information in your agreement. This includes expenses for school activities and other things that child support may not cover.

Parenting rules and provisions

You can put addition parenting rules and provisions in your agreement to make the custody situation work better.
Some common provisions that parents include are:
• The right of first refusal, which gives a parent the first right to have the child if the other parent needs child care
• Information about transportation to and from exchanges
• A rule that parents must provide each other parent with an itinerary when they travel with the child
• A rule that parents will not speak negatively about each other in front of the child
• A process for how parents will resolve disputes
• A method for making changes to the agreement as the child’s needs change
Think about common problems in your situation and come up with a provision that will help and speak with your custody lawyer at Ascent Law to have things drafted perfectly.

Lawyer For Termination of Parental Rights

When you need a lawyer for a case regarding the termination of parental rights in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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

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Travel Lawyer

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Travel Lawyer

As a traveling attorney, your job is to travel nationwide or internationally to represent your client in a specific court of law. In this role, you prepare for each case, interview people relevant to the case, and present information during a trial. Traveling attorneys often work with people or companies who have complex legal needs and find themselves involved in cases within multiple jurisdictions. Traveling attorneys should not be confused with many other types of travel lawyer jobs, which usually focus on temporary assignments to fill staffing shortages; instead, traveling attorneys typically work for the same firm or client but travel extensively as part of the job.

The primary qualifications for getting a job as a traveling attorney are a license to practice law in each jurisdiction your client needs help in and some experience as an attorney. Most firms and clients want to see a record of success in at least one jurisdiction before you start taking cases in other areas. Travel schedules vary widely; you may stay with your client on their trips that need legal counsel, or you may need to attend scheduled court dates around the country, so the ability to adjust your schedule whenever necessary is essential to this job. You also need a valid driver’s license and reliable transportation. Some positions may require international travel, so you may also need a valid passport. Whether you are a frequent flier or the occasional traveler, you likely have had a few travel agent questions regarding the best way to plan a trip. To help you weigh out the benefits of using a travel agent or planning a trip on your own, below are a few frequently asked travel agent questions.

What services does a travel agent offer?

Travel agents provide information and help consumers make travel arrangements. A travel agent, for instance, coordinates a traveler’s airline flight, hotel reservation, car rental, or tour. Travel agents offer advice and answer common travel agent questions such as inquiries weather conditions, exhibits to visit, currency exchange rates, required travel documentation, and local customs. Because travel agents receive compensation from travel suppliers, there is a certain degree of loyalty to suppliers rather than consumers. However, several state courts have ruled that because of the special relationship between travel agents and consumers, travel agents are fiduciaries subject to a high standard of care. A travel agent, consequently, has special duties and obligations to clients.
A travel agent has the following duties:
• Duty to warn. A travel agent has a duty to disclose known negative information that is not “obvious or apparent” to the consumer. For example, if a travel agent is aware that a certain destination has recently experienced a rash of muggings, the travel agent has a duty to warn the client. If a danger is public knowledge, however, the travel agent bears no responsibility for giving this information.
• Duty to investigate. Because travel agents have access to travel information through trade journals and travel magazines, agents have a duty to stay informed about conditions that could affect a client’s trip. Courts have ruled that when available, travel agents should have knowledge of information like the financial stability of suppliers and tour operators and the ability of suppliers and tour operators to deliver travel services. For example, courts have found travel agents liable for failing to investigate whether a hotel was open or whether it was under construction.
• Duty to inform. Travel agents have a duty to inform clients about important travel information. Travel agents must inform clients about restrictions on tickets, itinerary changes, the types of travel documentation needed, and the availability of travel insurance.
• Duty to make reservations. Travel agents have a duty to make the reservation requested by the client. The travel agent is responsible for making the correct reservation that is consistent with a client’s requirement. If the travel agent makes the wrong reservation or a delay results in increased costs, the travel agent will be responsible for the difference between the original cost and the actual cost.

• Duty to confirm reservations. When a travel agent books travel arrangements through a wholesaler or a tour operator, the agent must confirm the reservation and notify the client of any changes to the itinerary. The travel agent must confirm the reservation by directly contacting the supplier.
• Duty to disclose a supplier’s identity: A travel agent must disclose the identity of the wholesaler or tour operator that will deliver the service to the consumer. The failure to provide this information may result in a travel agent’s liability for damages that result from defaults or accidents.

Whether the client is responsible for paying the difference depends on the circumstance. If, for instance, the travel arrangements were booked based on the price quoted by the travel agent, it is likely that the agent will be responsible for incurring the cost if the client relied on the agent’s quote. On the other hand, if the agent quoted the correct price but inadvertently charged less, the client is responsible for paying the additional amount owed. Travel agents receive compensation from commissions earned from travel suppliers and for some services provided to clients. For example, a travel agent may charge a client for booking an airline flight or making hotel or car rental reservations.

Most states do not require travel agents to obtain a license. In some states, travel agents must register with the appropriate state agency. Professional associations for travel agents do not regulate the conduct of agents. Although professional associations do have established guiding principles for members, these rules provide consumers with very little recourse if an agent violates a code of ethics. Nevertheless, a consumer with a complaint or questions about an agent may contact the association the travel agent belongs to and make a complaint. Some associations do provide mediation services to resolve disputes.

Characteristics of a Successful Travel Agent

1. Knowledge: When travelers choose to use a travel agent instead of booking a trip themselves, they are looking for expertise. Turn yourself into an information sponge and soak up everything there is to know about airlines, airports, destinations, dining, and accommodations. Read travel articles and publications to stay current. Don’t be afraid to ask your suppliers questions about the products you are buying.
2. Professionalism: Set high expectations of professionalism for yourself and your employees. Check the spelling on your emails and quotes. Put efficient processes in place for making and managing bookings rather than just “winging it” as you go. Consider implementing or following a personal dress code to help you feel at the top of your game even if you work from home!
3. Enthusiasm: Enthusiasm is contagious. Stay excited about what you sell and your clients will catch on. Be that crazy person that loves Mondays. Keep your standards high and your goals ahead of you. Make sure to save plenty of time in your year for your own travels. This will keep you excited and passionate about what you do!
4. People Skills: Are you able to pick up on subtle communication cues? Can you figure out what a client really wants when they’re having a hard time expressing it clearly? Do you know how and when to close the sale? Some of these things come naturally, but much of it is learned simply by paying attention. Become a student of human nature even when you are not on the job and you will start to develop a keen ability to read people.
5. Integrity: Be honest and upfront about fares, rules and regulations. Don’t try to sell something you don’t think your travelers would love. Take the high road. Referrals and recommendations are your best form of advertising, but they simply won’t happen if you don’t maintain the highest standards of integrity
6. Resourcefulness: A great travel agent has the ability to think on their feet and adapt to new situations. Whether it’s a forced a schedule change, an unusual request, or a missed connection, quick-thinking is essential. Learn to stay calm and navigate emergencies like a pro. Figure out what resources you have at your disposal and make it happen! Your clients will think you are a miracle-worker!
7. Empathy: Even when you do all the right things in the booking process, travel arrangements can often go awry. Airlines are delayed, bags get lost, and travelers can get sick. Just because an incident is not your fault, doesn’t mean you show no compassion. Be your client’s advocate whenever you can. Use your experience to take up their cause with airlines and travel insurance underwriters. If there is truly nothing you can do, offer your best suggestions and your genuine empathy. Be a listening ear and make them feel heard and understood.

Advantages of online travel agents

Ultimately, OTAs give you instant access to a large number of potential customers. Possible advantages of using an online travel agent to sell your service include:
• It’s a low cost way to list your property and its rooms.
• Reductions in your online marketing spend. OTAs will invest in marketing and advertising to attract potential international customers.
• A reduction in your website costs. OTAs are keen to provide a positive online experience for customers through good website design and functionality.

• Online travel sites are popular with customers who like to compare accommodation costs and the services offered by individual providers.
• Impartial reviews on online travel sites may give new customers the confidence to book.
Disadvantages of online travel agents
There may be some disadvantages to using online travel agents. These include:
• Online travel agents can charge commission on every sale. This can range between 10-20 per cent of the gross cost.
• There may be restrictive terms and conditions imposed by OTAs such as guest cancellation and automatic room reselling policies.
• You may need to find a way of managing room availability across a range of OTAs, your own website, front desk and telephone sales. This can be time consuming and labour intensive. There are software options to help you manage this.
• Using OTAs does not reduce the need to have your own website with booking engine.
• You may still need to invest in a balanced multi-channel marketing strategy.

The I-131 Application for Travel Document is a form that a foreign national submits to U.S. Citizenship and Immigration Services (USCIS) in order to apply for one of various types of travel document. The costs associated with filing an I-131 application depend on what kind of travel document you are applying for and whether or not you decide to use the help of an immigration attorney. The different travel documents you can apply for using the I-131 application are:
• Reentry document\Refugee
• Travel Document, or
• Advance Parole.

Filing Fees

The filing fee for the I-131 application depends on the travel document you are applying for. The fees are as follows;
• $575 for a reentry document or advance parole, plus an $85 biometrics fee for applicants between age 14 and 79 years of age
• $135 for a refugee travel document for applicants who are 16 years of age or older, plus an $85 biometrics fee (unless the applicant is age 80 or older)
• $105 for a refugee travel document for applicants who are under the age of 16 years, plus an $85 biometrics fee if the applicant is age 14 or 15.
If you are also filing an I-485 application for adjustment of status, there is no filing fee for the I-131 application, assuming you are submitting it in order to request advance parole or a refugee travel document. If you are applying for humanitarian-based advance parole and are unable to pay the fee, you can request a waiver by submitting USCIS Form I-912 Fee Waiver Request along with your application. USCIS raises its fees on a fairly regular basis, so always check the USCIS Web page for Form I-131 to confirm the fee that applies to you before you file.

Attorney Fees

When you first meet with an attorney, you will almost always have to pay a consultation fee. A consultation fee can range anywhere from $75 to several hundred dollars depending on where the attorney is located and the size of the firm he or she works for. At this stage of the process, you should ask the attorney whether the consultation fee will be deducted from the final bill if you decide to retain his or her services.
Most attorneys will charge a flat fee for preparing an I-131 application. An average flat fee for the entire I-131 process can be anywhere from $250 to $1,000, depending on what travel document you are applying for. If you are applying for advance parole or a refugee travel document as part of an I-485 application for adjustment of status, the attorney will generally charge you a flat fee for the adjustment of status process that will include preparation of the I-131 application.
Flat Fees
An attorney will generally perform the following services with a flat fee:
• Preparing the I-131 form.
• Assembling the documents that need to be submitted with the I-131 form.
• Drafting affidavits, if needed.
• Drafting a legal memo for more complicated cases, where needed, and
• Preparing and submitting a response to a Request for Evidence (RFE).

Hourly Fees

A flat fee is normally a good deal, particularly if you have a complicated case that requires a lot of documentation. Some attorneys might charge you at an hourly rate. This could be a better option for you if you have a straightforward case or have already completed the I-131 application on your own and simply want the attorney to review it. The downside to being charged hourly is that your fee will be less predictable and, depending on your case, you could end up spending more than you would have if you had paid a flat fee. For example, if you prepared your own application and it contains lots of mistakes, it is possible the attorney might spend more time fixing your work than if he or she had started the petition from scratch. It is always a good idea to contact several attorneys to ask about their fees before scheduling your consultation. No matter what, make sure you select an attorney you feel comfortable with.

Travel Attorney Free Consultation

When you need legal help from a Travel Attorney in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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

Ascent Law LLC

4.9 stars – based on 67 reviews

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Business Agreements And Partnership Agreements

A business partnership agreement is a legally binding document that outlines details about business operations, ownership stake, financials and decision-making. Business partnership agreements, when coupled with other legal entity documents, could limit liability for each partner. Business partnership agreements should always be written and/or reviewed by legal counsel prior to any signatures. A business partnership agreement establishes clear rules for the operation of a business and the roles of each partner. Business partnership agreements are put in place to resolve any disputes that arise, as well as to delineate responsibilities and how profits or losses are allocated. Any business partnership in which two or more people own a stake of the company should create a business partnership agreement, as these legal documents could provide key guidance in more difficult times. A business partnership agreement is a legal document between two or more business partners that spells out the business structure, responsibilities of each partner, capital contribution, partnership property, ownership interest, decision-making conventions, the process for one business partner to sell or leave the company, and how the remaining partner or partners split profits and losses. While business partnerships seldom begin with concerns about a future partnership dispute or how to dissolve the business, these agreements can guide the process in the future, when emotions might otherwise take over. A written, legally binding agreement serves as an enforceable document, rather than just an oral agreement between partners.

A business partnership agreement is a necessity because it establishes a set of agreed-upon rules and processes that the owners sign and acknowledge before problems arise. If any challenges or controversies do arise, the business partnership agreement spells out how to address those issues. A business partnership is just like a marriage: No one goes into it thinking that it’s going to fail. But if it does fail, it can be nasty. With the right agreements in place, which I’d always recommend be written by a qualified attorney, it makes any potential problems of the business partnership much more easily solved and/or legally enforceable.” In other words, a business partnership agreement protects all partners in the event things go sour. By agreeing to a clear set of rules and principles at the outset of a partnership, the partners are on a level playing field developed by consensus and backed by law.

Business partnership agreements are necessarily broad, touching virtually every aspect of a business partnership from start to finish. It is important to include all foreseeable issues that could arise regarding the co-management of the business. These are some of those issues:

• Ownership stake: A business partnership agreement clearly spells out who owns what percentage of the business, making each partner’s stake in the company clear.
• Business operations: Business partnership agreements should explain which activities the business will engage in, as well as which activities it will not.
• Decision-making: A business partnership agreement should outline how decisions are made and the responsibility of each partner in the decision-making process. This includes who has financial control of the company and who must approve the addition of new partners. It should also include information on how profits and losses are distributed amongst the partners.

• Liability: If the business partnership is set up as an LLC, the agreement should limit the liability each partner faces. To do so effectively, a partnership agreement should be paired with other documents, such as articles of incorporation. A business partnership agreement alone is likely not enough to fully protect the partners from liability.
• Dispute resolution: Any business partnership agreement should include a dispute resolution process. Even if partners are best friends, siblings or spouses, disagreements are a natural part of doing business together.
• Business dissolution: In the event the partners choose to dissolve the business, a business partnership agreement should outline how that dissolution should occur, as well as continuity or succession planning should any of the partners divest from the business.

Steps To Implement A Business Partnership Agreement

A business partnership agreement does not have to be set in stone, especially as a business grows and develops over time. There will come opportunities to implement new elements of a partnership agreement, especially if unforeseen circumstances occur.
• Initial partnership: This is when two or more partners first enter into business together. It involves drafting an agreement that governs general operation of the business, the decision-making process, ownership stakes and management responsibilities.
• Addition of limited partners: As a business grows, it might have the opportunity to add new partners. The original partners might agree to a small carve-out of minor equity ownership for the new partner, as well as limited voting rights that give the new partner partial influence over business decisions.
• Addition of full partners: Of course, sometimes the addition of a limited partner will lead to their inclusion as a full partner in the business. A business partnership agreement should include the requirements and process of elevating a limited partner to the status of full partner, complete with full voting rights and influence equal to that of the original partners.
• Continuity and succession: Finally, a business partnership agreement should take into account what happens when the founders retire or leave the company without initiating dissolution. It should be clear how ownership stake and responsibilities will be distributed among the remaining partners after the departing partners take their leave.
Partnership agreements need to be well crafted for a myriad of reasons. One main driver is that the desires and expectations of partners change and vary over time. A well-written partnership agreement can manage these expectations and give each partner a clear map or blueprint of what the future holds. Your partnership agreement should speak to your unique business relationship and business operation. Again, no two businesses are alike. However, there are key provisions that every partnership agreement should include:
• Your Partnership’s Name: One of the first tasks you and your partners will check off your to-do list is making a decision on your business’ name. The business name may reflect the names of the partners or it may have a fictitious name. In either case, the name of your business should be registered with your state. Assuming you’ve conducted a comprehensive search of the name you’ve decided on, registration will confirm that no other business exist with the same name and will prevent others from using your name. The name of your business partnership is a key provision because it explicitly identifies the partnership and the business name for which the agreement exists. This eliminates confusion, especially when there are multiple partnerships and/or businesses that may be involved.
• Partnership Contributions: In most cases, partners’ contributions (time, resources, and capital) to the business vary from partnership to partnership. While some partners provide start-up capital, others may provide operational or managerial expertise. In either case, the specific contributions should be stated in the written agreement. It’s also a good idea to include terms that address anticipated contributions that may be required before the business actually becomes profitable. For example, if the start-up investments are not sufficient to carry the business into a profitable state, the partnership agreement should state any expectations for additional financial contributions from each partner. This avoids any surprises down the road for a key contributor.

• Allocations – profits and losses: Partnerships are formed with the expectation of making a profit. The partnership agreement should speak to the when and how profits are allocated to each eligible partner. In addition, it should speak to how losses will be distributed during the business’ operation and in the event of dissolution.
• Partners’ Authority and Decision Making Powers: Each partner has a vested interest in the success of the business. Because of this vested interest, it’s generally understood that each partner has the authority to make decisions and to enter into agreements on behalf of the business. If this is not the case for your business, the partnership agreement should outline the specific rules pertaining to the authority given to each partner and how business decisions will be made. To avoid confusion and to protect everyone’s interest, you need to discuss, determine and document how business decisions will be made.
• Management: In the beginning phase, there are many tasks to accomplish and some management roles may overlap (or may only require temporary oversight). While you do not have to address each partners’ duty as it relates to every single aspect of your business operations, there are some roles and responsibilities you need to assign and outline in a formal agreement. Roles and responsibilities related to accounting, payroll, and even human resources are worthy of noting in the partnership agreement because of their critical and sometimes sensitive nature. Even if you have an existing agreement, you may want to update your agreement to address these important managerial responsibilities.
• Departure (withdrawal) or Death: When entering a business partnership, it’s natural to want to avoid uncomfortable discussions about a future breakup that may never happen. No one wants to think of a possible separation when a relationship is just beginning. However, business separations happen all the time and occur for many reasons. Any of these reasons can affect you personally and professionally. Therefore, no matter the reason for the separation, the process and procedures for departure should be outlined in the partnership agreement. It’s also wise to include language that addresses buyouts and shifts in responsibility should one partner become disabled or deceased.
• New Partners: As the business grows and expands, the increased need for new ideas, new resources, and new strategies grows as well. At times, growth may mean adding a new partner. Plan ahead for these new opportunities in the partnership agreement by specifying how new partners will be on-boarded into the existing partnership.
• Dispute Resolution: As stated before, disputes are inevitable in any relationship. In business relationships, disputes can become deadlocked and may even require mediation, arbitration, or unfortunately lawsuits. Try avoiding the time and costs associated with lawsuits by requiring mediation and arbitration as a first (and hopefully final) resolution to business disputes. There are many ways to resolve disputes, so your partnership agreement can list alternative methods for dispute resolution. The point is to formally identify these methods of resolution in advance be listed them in the partnership agreement when all heads are cool and clear.

Why Your Business Partnership Needs a Written Agreement

• To set up the roles and responsibilities of each partner and to describe how decisions are made. Who is the managing partner? What are the responsibilities of individually named partners? How do roles and responsibilities change?
• To avoid tax issues, by having the tax status of the partnership spelled out, and to show that the partnership is distributing profits based on acceptable tax and accounting practices.
• To avoid legal and liability issues, spelling out the liability of individual partners (general partners vs. limited partners) and the liability of all partners if there is a liability issue with one partner.
• To deal with changes in the partnership due to life challenges of existing partners – partners who leave, become ill or incompetent, get divorced, or die. These are usually dealt with in buy-out agreements with each partner.
• To describe the circumstances under which new partners can enter the partnership.
• To deal with partner issues, like a conflict of interest and non-compete agreements.
• To override state laws. Some states have required language in partnership agreements. But this language may not be the best for your particular partnership. If you don’t have a formal written agreement, you may find yourself having to abide by the default state laws.
• To make disputes easier. It’s a good idea to include language in your partnership agreement that describes how disputes will be handled. Will arbitration be a possibility? What will be the responsibility of parties to the dispute? Who pays for what?

Why You Need an Attorney to Help Prepare a Business Partnership Agreement

The only disadvantage to having a partnership agreement is that you might have language that is unclear or incomplete. A DIY partnership agreement risks not getting the wording right, and a poorly worded contract is worse than none at all. Getting an attorney to help you with the process of preparing your partnership agreement seems like it’s an expensive waste of time. It’s not. Remember, if it isn’t in writing, it doesn’t exist, so putting every possible situation or contingency into a partnership agreement can prevent expensive and time-wasting lawsuits and hard feelings between the partners.
• To avoid tax issues, by having the tax status of the partnership spelled out, and to show that the partnership is distributing profits based on acceptable tax and accounting practices.
• To avoid legal and liability issues, spelling out the liability of individual partners (general partners vs. limited partners) and the liability of all partners if there is a liability issue with one partner.
• To deal with changes in the partnership due to life challenges of existing partners – partners who leave, become ill or incompetent, get divorced, or die. These are usually dealt with in buy-out agreements with each partner.
• To describe the circumstances under which new partners can enter the partnership.

• To deal with partner issues, like a conflict of interest and non-compete agreements.
• To override state laws. Some states have required language in partnership agreements. But this language may not be the best for your particular partnership. If you don’t have a formal written agreement, you may find yourself having to abide by the default state laws.
• To make disputes easier. It’s a good idea to include language in your partnership agreement that describes how disputes will be handled. Will arbitration be a possibility? What will be the responsibility of parties to the dispute? Who pays for what?
The only disadvantage to having a partnership agreement is that you might have language that is unclear or incomplete. A DIY partnership agreement risks not getting the wording right, and a poorly worded contract is worse than none at all. Getting an attorney to help you with the process of preparing your partnership agreement seems like it’s an expensive waste of time. It’s not. Remember, if it isn’t in writing, it doesn’t exist, so putting every possible situation or contingency into a partnership agreement can prevent expensive and time-wasting lawsuits and hard feelings between the partners.

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