বৃহস্পতিবার, ৬ ফেব্রুয়ারি, ২০২০

Real Estate Lawyer Tooele Utah

Real Estate Lawyer Tooele Utah

An experienced Tooele Utah real estate lawyer can act as the settlement agent in your real estate transaction.

In a real estate sale transaction, the settlement agent searches the records to make sure that no claims against the property have been recorded from the time of the initial search of the records until the time of recording the deed. Then the deed and applicable lender documents are recorded. Once these final steps have been completed, the purchaser has become the insured owner of the property, and the settlement agent distributes the funds collected at settlement in accordance with the details reflected on the settlement statement.

The settlement agent pays not only the seller but also the government, for all taxes and water and sewer fees owed; the real estate agent, for the commission; the lender, for origination and related fees; the settlement agent and title insurance company, for settlement charges and the title insurance premium; and all other parties to whom payments are owed, as reflected on the settlement statement. Sometimes, the settlement agent distributes the funds at the settlement table, before the deed is actually recorded.

The settlement agent can make sure that the requirements for title insurance have been met by recording the deed and searching the records for any new claims since the original title report. Further, by making all disbursements, the settlement agent can make sure that any lienholder whose lien needs to be released of record is paid the agreed amount for the release.

If the amount to cause a release to be recorded or to ensure that property taxes and water and sewer fees have been paid is not known at the time of settlement, the settlement agent can hold in escrow from the seller’s funds an estimated amount to cover such costs when they become known after settlement. Similarly, the settlement agent may hold in escrow funds from the seller to cover incomplete repairs. This type of escrow can benefit the purchaser as well as satisfy the settlement agent’s concerns that a contractor or subcontractor might file a mechanic’s lien against the property, which might become the liability of the title insurance company.

Title Insurance Policy Issues

Because most title insurance companies are national or multistate in scope, the American Land Title Association (ALTA) has set national standards and created form documents that are used across the country. Even though the basic forms are uniform, a wide variety of changes may be made, depending on local custom and practice. Everything from the type of security documents (deeds of trust or mortgages) to when the settlement agent will disburse funds may be different, depending on local circumstances.
In addition, significant variations from the standard title insurance policies may be possible upon request by the purchaser or the lender. One type of variation, known as affirmative coverage, provides the purchaser and the lender with title insurance even when encumbrances have been identified as exceptions to the title insurance coverage. Examples of typical exceptions on a title insurance policy include any claims arising from property taxes and water sewer fees incurred after the settlement; discrepancies in boundary lines, which an accurate survey would disclose; covenants and rights of way that affect the property; claims arising out of bankruptcy and creditors’ rights laws; and claims arising from tenants or other parties in possession.

Examples of typical affirmative coverage for these exceptions include language ensuring that the unpaid taxes and water and sewer charges do not constitute liens under local law; language deleting the survey exception by noting the specific discrepancies that are reflected on a survey done for the particular property at issue; and language ensuring that, even though the property is encumbered, violation of a particular covenant will not cause the title to the property to be forfeited or reverted to a former owner. Affirmative coverage will not be routinely provided; it needs to be requested and/or negotiated with the title insurance company or settlement agent.

Lender Requirements

Ultimately, virtually every aspect of the pre-settlement, settlement, and post settlement processes may have to be changed to accommodate the particular and peculiar requirements of the lenders in each transaction. By and large, the purchaser/borrower is not in a position to argue too strenuously with how the lender wants to carry out these processes. Even where local custom and practice call for a particular approach, the lender’s requirements will ultimately control. For example, if the lender wants the borrower to use the lender’s counsel as the settlement agent, there is nothing in RESPA that prevents the lender from requiring the borrower to do so as a condition of obtaining the loan.

Similarly, the lender will decide which type of survey and surveyor’s certificate, as well as which title company and which type of affirmative coverage and exceptions will be acceptable.

The standard construction contract establishes a relationship among the owner, the architect (or designer), and the contractor. Typically, the owner contracts separately with the architect and the contractor and no contractual relationship exists between the architect and the contractor. The owner is the ultimate authority for the project and must coordinate the work of the other parties. The architect translates the owner’s ideas and budget into drawings and supervises construction as the agent of the owner. The contractor builds the project and supervises the work of all subcontractors required for the job. This triumvirate is typical of all construction projects and the relationships established require coordination by the owner in order to avoid conflict.

Most construction projects and most contracts executed between the owner and each of the members of the construction team utilize the standard construction contracts. These standard contracts, often serve as the baseline from which the parties negotiate, deleting certain terms and adding others, as appropriate.

Role of the Owner

The owner is the force behind the project and is seen by the other members of the team as the one party who will benefit most from the successful completion of construction. Typically, the owner will have the greatest financial stake in the project and will assume a correspondingly high risk. One of the owner’s key responsibilities is to select the architect, the contractor, and the construction manager, if appropriate. The owner, in selecting these professionals, must ask:

1. Is the architect capable of developing cost estimates and making day-to-day field decisions that reflect the owner’s goals and aspirations for the project?

2. Does the contractor have the integrity and capability, and sufficient inducement through payments or contractual obligations, to complete the proposed development?

The answers to these questions will determine the selection of both parties and the ultimate success of the project.

General Contractor

Contractors, in general, suffer from very bad press. Nearly everyone has had or has heard of a horror story involving a contractor, on jobs as small as a home repair or as large as construction of a skyscraper. The unfortunate truth is that there are bad contractors. However, new projects are completed every day, and contractors are building them. Knowing what to expect from a contractor is essential to the success of even the smallest real estate project.

A contractor can be selected through competitive bidding or interviews (often referred to as negotiated bids), or a combination of both. Many affordable housing projects, utilizing government funds, are required to use the competitive bidding process. This process is expected to result in the project’s being completed at the lowest possible cost because of open and free competition.

If the circumstances and financing allow, the owner may select a contractor through a negotiated bid process or interviews and recommendations and determine the one company most qualified and experienced for the work. To the extent possible, experienced developers often use a single contractor whom they know and trust for all of their development work. The interview process also may be used to select the contractors who will be invited to bid on the project or to select the contractor most suitable for the job after the bidding is complete.

The Owner’s Responsibilities to the Architect and Contractor
After a contractor and architect are selected, the owner is responsible to them for a number of tangible and intangible items and duties.
Other duties are implied by tradition and experience; all of them are reasonable:

• Funding the construction – The owner does not have to disclose to the Contractor the conditions, arrangements, or agreements that affect the project’s financing. The contractor, on the other hand, has no obligation to begin or continue work if reasonable evidence of funding cannot be shown. A contractor expects payments for work completed and reimbursement for materials purchased, contract expenses, or changes to the work. Establishing and maintaining a well-documented and expeditious payment process is critical to the success of a project. Failure of the owner to manage this payment process can have devastating effects on a project. For example, if a multifamily housing project is planned and is to utilize cost-saving prestressed concrete planks as a structural system, the subcontractor supplying the planks will manufacture them well in advance of the installation date. If project payments are delayed, the supplier may refuse to deliver the planks to the site. If a new floor is not in place, the other trades involved—plumbers, electricians and masons—will also be delayed. This domino effect can easily shut down an entire project.

• Securing surveys and defining easements, rights-of-way, or utility locations – The owner is responsible for obtaining an accurate and up-todate description of the property and of the existing conditions and improvements on the site. A project can be delayed significantly because of an unknown condition on the property, such as the lack of certain utility connections. As in the concrete planks example above, all work can be stopped, at considerable cost, while adjustments are made or plans are redesigned to include this previously unknown condition. Existing surveys should be re-examined for new or unrecorded conditions when a new survey is infeasible. Easements, rights of way, and utility locations can be checked with the municipal entity responsible for recording plats and deeds. The previous owner also should be consulted regarding any conditions that may have been granted but not recorded. The accuracy of these data is important because local laws and contracts often entitle the contractor to additional compensation for delays or work completed based on inaccurate data.

• Securing all necessary approvals from local, state, and federal authorities – Construction plans and specifications must be approved by the local building department, but they represent only the existing and proposed physical building conditions for the site. Additional approvals often are required for affordable housing projects. For example, in urban locations, zoning restrictions may preclude multifamily housing on the selected site or the use of wood frame construction for a three-family dwelling unit. Rural locations may encounter the need for a wetlands approval or specific water rights. The examples of approvals are endless, but the responsibility for obtaining them lies solely with the owner and the owner’s consultants.

An experienced Tooele Utah real estate lawyer, consultants, and other expediters familiar with the local laws are essential in obtaining the necessary authority to proceed with the project.

Providing evidence that any fees, assessments, or charges for use of the site have been paid. These costs are related to access to and use of the site. The owner may have acquired clear title to the property; however, additional costs may be necessary in order to make the property usable. Water and sewer connection fees, tax assessments, waste disposal fees, and temporary utility connection costs all may be required prior to or during construction. The construction contract should state explicitly whether the owner or the contractor is responsible for these costs.

In addition, affordable housing projects often make efficient use of the site for economies of scale. A “tight” site may require additional land on a temporary basis to facilitate construction. Staging areas, storage, parking, or crane access are just a few examples of the needs that may arise during construction. The need for additional space should be apparent to the contractor at a preconstruction site inspection, but the owner is responsible for acquiring the area necessary to accomplish the work proposed. All acquisition costs are the owner’s responsibility.

Tooele Utah Real Estate Lawyer Free Consultation

When you need legal help with a real estate matter in Tooele Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. Whether it is: Evictions for Landlords. Quiet Title Actions. Boundary Disputes. Clearing Title. Title Disputes. Real Estate Lawsuits. Real Estate Zoning Issues. Real Property Non-Conforming Issues. Real Estate Code Enforcement. And More. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Source: https://www.ascentlawfirm.com/real-estate-lawyer-tooele-utah/

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বুধবার, ৫ ফেব্রুয়ারি, ২০২০

Can You Date During Legal Separation?

Can You Date During Legal Separation

A legal separation in Utah is called “separate maintenance – a court will detail the monetary support guidelines and child custody issues and the division of marital property. Couples hoping for a reconciliation may prefer this form of separation to divorce.

Utah requires married couples with children under the age of 18 to attend classes to educate themselves on divorce, and couples with no children must still undergo a 90-day waiting period. Moreover, married couples filing for divorce must also attend a mediation session to resolve remaining disputes before going to trial. Filing for legal separation circumvents the class requirements and the 30-day waiting period in Utah.

Parties are legally separated only when a court enters a decree of separate maintenance. To obtain a decree of separate maintenance in Utah, the parties go through an action like a divorce. Separate maintenance divides property, awards custody of children, and provides for child support and alimony, but does so on a temporary basis; the decree of separate maintenance does not end the marriage. Alimony under separate maintenance is more common than under a divorce decree because the parties are still married, and the law requires spouses to support one another.

Once the separation occurs, the separated couple may file for a divorce, which is independent of the legal separation. Court and attorney fees for legal separation and divorce are equal, but couples seeking a divorce after a separation will end up paying the same amount twice. Couples seeking legal separation must resolve issues similar to that of divorce, including child custody and visitation, dividing up property and child support, and paying debts.

What is the law regarding dating when legally separated?

I am filing for my legal separation. What are the laws about dating again in Utah? We do have 3 children and my husband is threatening me that if I start dating while we are legally separated, he is going to fight for custody.

In all actions for separate support and maintenance, legal separation, or other marital litigation between the parties, allowances of alimony and suit money and allowances of alimony and suit money pendent lite shall be made according to the principles controlling such allowance and actions for divorce. On the issue of whether a spouse should date after separation and before divorce, you should understand that post-separation dating can be used as evidence of adultery occurring during the marriage. If there was no illicit sexual conduct before your date of separation, then post-separation dating is not relevant to a claim for post-separation support or alimony. However, a paramour who stays overnight when your children are present can be grounds for denial of your custody or visitation. You should be forewarned that you will likely be asked under oath at a deposition or at trial about any dating or romantic relationships. To answer these questions falsely would constitute perjury. You may plead the Fifth Amendment privilege against self-incrimination under certain limited circumstances. Dating after separation and before divorce may also have a serious negative impact on the settlement negotiations between you and your spouse.

At best, your infidelity can cause your spouse hurt and embarrassment. At worst, it will provoke feelings of anger and revenge, which will greatly complicate your settlement negotiations with your spouse. Also, your spouse might file an action for “alienation of affections” or “criminal conversation” seeking substantial money damages against your paramour based upon his or her sexual intercourse with you or interference with the marital relationship between you and your spouse either before or after the date of separation and before a divorce is final. Conversely, if you spouse is engaging in extra-marital affairs, then you are the wronged spouse and are in the position of filing an alienation of affections or criminal conversation lawsuit against your spouse’s paramour. If that is the case, you are well-advised to obtain proof of his or her affair through a private detective.

I’m not Divorced yet, But I’m Dating; Will that Hurt my Divorce?

When people don’t, they’re said to be “stuck in the past,” or “they can’t get over their ex.”

And we should move on from divorce. While it’s healthy to mourn the loss of your closest relationship, you have to put things behind you at some point to grow and move ahead.

So, how quickly should you move on? More specifically, when should you start dating?

To answer these questions, let’s imagine you’re getting divorced but still married, and you’re already dating. Will that hurt your divorce?
Let’s look at this from a couple different angles.

Angle 1: No Kids

If you have no kids, then dating after separation but before your divorce is signed probably won’t hurt you.

If all you’re doing is dividing up debt and assets (e.g., the home, personal property, etc.), then things are usually pretty straightforward. The reason for the divorce rarely plays a role in determining who gets how much of the 401(k), or who takes what percentage of the Visa card.
I say this, but there are a couple caveats:

Emotions can make everything more difficult.

While the math might be pretty straightforward, emotions can cause people to fight because they’re hurt. Even though they don’t have a leg to stand on, hurt will cause some to want to punish their soon-to-be ex in the form of taking more money. Math is easy; wrath is not.

In some situations, adultery can affect alimony.

There are times under Utah law that adultery can affect alimony. These situations are few and far between in my experience, especially if the adultery happened after separation, but it’s something to keep in mind and to be cautious about.

Angle 2: Yes Kids

Kids complicate everything, especially in divorce.

That emotion that had the potential to complicate asset and debt division, but probably wouldn’t, that emotion will almost certainly complicate your divorce if you are fighting about custody and parent-time.
Your soon-to-be ex will distrust the new person you’re dating. They may hate that person simply because you’re dating them. They may blame the marriage breakup on that person, even if that has nothing to do with reality.

Because of this, the new person you’re dating will likely make coming to a resolution of the divorce more difficult.

Let me give you a couple specific examples of what I mean by more complicated:

1. We’ve had spouses negotiate terms that the kids cannot be introduced to anyone the other person dates for at least six months.

2. We’ve had spouses negotiate terms prohibiting the kids from being alone with the other person’s dating partner because the dating partner was an “unknown” and a “safety risk.”

3. We’ve had spouses negotiate terms that the kids can’t be left alone with the other person’s dating partner, even if the other person marries the dating partner.

4. We’ve spent more time than I care to admit negotiating terms that preclude new dating partners and new spouses from ever disciplining the spouses’ children.

And that’s just a preview of how new dating partners have made things difficult.

What’s the Difference between Legal Separation and Divorce?

Sometimes, no matter how hard you try, marriages fail. We’ve all heard of divorce, which is the process couples use to end their marriage legally. Divorce begins when one spouse files a motion (request) with the court. Typically, couples can negotiate the terms for their divorce, including child custody and visitation, child support, property division, and spousal support. If you’ve agreed to most of the conditions, but still have disputes about others, you can ask the court to decide for you. Once the judge finalizes your divorce, both you and your spouse are free to remarry, acquire property, and relocate as single people.

The process for legal separation in many states is nearly identical to divorce, but there’s one critical difference: legal separation doesn’t terminate your marriage. Although you (or the judge) decide the same divorce-related issues, and once the judge grants your request you’re both free to live independent lives, if either spouse wants to remarry in the future, that spouse must ask the court for a formal divorce, first.
Both legal procedures are similar in cost and time commitment; however, if you pursue legal separation before a divorce, you’ll likely be paying twice.

Should I Choose Legal Separation Instead of Divorce?

Much like the decision to get married, the choice of whether to pursue a legal separation or divorce is intensely personal. If you’re not sure if you want a divorce, legal separation might be the most appropriate way to give you time apart while you try to repair the relationship.

Many couples decide to legally separate to continue employer-sponsored health care for a spouse. If you get divorced, it will likely trigger your health insurance to cancel your spouse’s benefits, and in a country where one medical emergency can bankrupt a family, sometimes it’s easier to stay married.

Although there’s no right or wrong reason to pursue legal separation instead of divorce, some of the most common include using separation:

• as a dry-run for divorce

• to preserve valuable tax benefits or other federal benefits

• to promote stability for minor children while given each spouse freedom to move away from the relationship, or

• To overcome religious, social, or moral objections to divorce.

Does Utah Recognize Legal Separation?

Yes, but in Utah, it’s called an action for “separate maintenance.” The process begins when either spouse files a petition for separate maintenance with the local court. You will need to demonstrate that you or your spouse meet the state’s residency requirement, meaning at least one of you lived in Utah for a minimum of 90 days before filing. (U.C.A. 1953 §30-3-4.5.)

Because the process for separate maintenance is nearly identical to divorce, you must also provide the court with a legal reason—or, grounds—for your request. Utah is a mixed divorce state, meaning you can ask for separate maintenance based on your spouse’s marital misconduct (domestic violence, desertion), or you can save time and money by requesting a no-fault separation, and state that your relationship has suffered irreconcilable differences. (U.C.A. 1953 § 30-4-1.)

Utah law requires the judge to wait for a minimum of 30 days (90 days if you filed before May 8, 2018) before acting on your case. The court may waive the waiting period if a judge finds that there are extraordinary circumstances, but this is rare. If you have minor children, you must attend divorce orientation and divorce education classes before the judge can grant your request. Most couples can fulfill this requirement during the waiting period. (U.C.A. 1953 § 30-3-18.)

If you don’t have minor children, you can use the waiting period to negotiate the terms of your separation. You should determine the best parenting plan for your family, how you will handle property and debt division, and resolve any issues about child or spousal support.
If there are outstanding issues in your case, the court requires both parties to attend at least one mediation session before the judge hears your case. Mediation is a way for both spouses to discuss their concerns with a trained, neutral third-party, in a safe and controlled environment. The purpose of mediation is to reduce the time and tension commonly associated with divorce or separate maintenance. (U.C.A. §30-3-39.)

If either spouse wishes to convert the separation into divorce later, that spouse can file a motion with the court. Your spouse can object, and if so, you’ll need to go to court and demonstrate that you meet the guidelines for divorce. If you do, the court will approve your request.

What If We Aren’t Sure That Legal Separation Is Right for Us?

You can participate in a trial separation, which is where you live apart for a specific time and reassess your marriage. Most couples can orally agree to the terms of the trial, and it’s usually the best way to find out if separation or divorce is right for you. The court doesn’t monitor trial separations, so if either spouse doesn’t want to participate, that spouse can file a formal petition with the court for separate maintenance or divorce.

And then there are people who bring the new love interest to mediation. Good heavens, you have never seen people shut down out of anger until you have one spouse bring the new lover to mediation.

My recommendation is this: hold off on dating until you’re done with your divorce. It makes everything so much easier. It removes negative emotions from the equation that do nothing but make the process harder. Just wait.

Legal Separation Lawyer Free Consultation

When you need to get a legal separation or divorce in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help with: Divorce. Child Custody. Child Support. Alimony. Divorce Modification. Paternity Actions. And Much More. We will help you.

Michael R. Anderson, JD

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

Source: https://www.ascentlawfirm.com/can-you-date-during-legal-separation/

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Family Lawyer Sandy Utah

Family Lawyer Sandy Utah


Sandy Utah is a great place to raise your family. As a parent you have certain parental rights. Its important that you understand these rights so that you can protect them when someone or the state threatens to take way these rights from you. An experienced Sandy Utah family lawyer can explain to you your parental rights.

Although debates may rage as to when other aspects of parenthood begin, one thing is clear: Legal regulation of parenthood begins before conception (e.g., reproductive rights) and touches on matters ranging from transporting children (e.g., child safety restraint laws) to income taxation (e.g., deductions for dependents).

Traditionally, American law has viewed relationships between parents and their children from the perspective of the parents. The law has emphasized parents’ rights and interests, except when these might conflict with those of the state. At the same time, however, the law frequently purports to act in the best interests of children. That which is in the best interests of parents may not be in the best interests of children. Obviously, it is difficult to ascertain what is in children’s best interests when the law views family matters from the perspective of parents. In considering the sometimes competing interests of parents, children, and the state, courts and legislatures have addressed questions concerning definitions, rights, and duties of parenthood.

Who is the parent?

Generally, the law defines parenthood in terms of a relationship—a woman’s biological relationship to a child, a man’s marital relationship to a child’s natural mother, or a nonbiological relationship established by adoption or remarriage. Less commonly, the law may acknowledge an emotional or psychological relationship between people who are otherwise unrelated. Within these various definitions, both legal and social traditions stress the primacy of the nuclear family and the functions it fulfills in the lives of children.

One of the reasons for the complexities regarding the meaning of parent is that parents function in multiple ways in regards to their children. Parents biologically produce children. They provide the economic resources to sustain children. They prepare food for their children, do their laundry, transport them to activities, help them with homework, take care of them when they are ill, and obtain health care for them when needed. Parents form intense affectionate, highly interactive bonds with their children. Parents socialize their children; they inculcate the values of the majority culture— and sometimes minority cultural values as well—in addition to their own unique values, morals, and beliefs.

Biological Parent

The biological nature of parenthood has legal importance in establishing financial obligations for child support and presumptive rights to custody or visitation. When biological parents are in dispute with nonparents for the custody of children, the traditional view has been that biology is paramount. The biological parent always would prevail as long as the parent was considered “fit” and he or she had not abandoned the child previously.

The unwed father

If you are the father of a child but you are not married to the mother of the child, speak to an experienced Sandy Utah family lawyer. You have certain parental rights. The biological nature of parenthood also is considered in the law’s approach to the rights of unwed fathers, particularly whether they can block adoption proceedings instituted by the mother. Although biological ties historically have been given enormous weight in consideration of parental rights, they commonly have been recognized only when the father was married to the mother at the time that the child was born. The marital presumption, which has been accepted uniformly, assumes that a child born to a woman living with her husband is the biological child of the husband. Thus fatherhood status is conferred by means of the marital relationship with the birth mother. Because legal fatherhood arises from the marital relationship with the birth mother, the traditional view has been that unwed fathers have no rights whatsoever regarding their offspring. Before 1972, an unwed father could not stop the termination of his parental rights if the mother placed her child for adoption. In 1972 however, the U. S. Supreme Court held that unwed fathers did have some parental rights protected by the due process clause of the Fourteenth Amendment. In that case, an unwed father who had participated in the care of his child was held to be entitled to a hearing to determine his parental fitness before his parental rights could be terminated. The biological relationship is not sufficient, however, to sustain parental rights of an unwed father. An unwed father has to show that he has had an actual parental relationship with the child in order to obtain legal recognition of his interest in the preservation of that relationship.

Psychological Parent

The concept of the psychological parent was articulated three decades ago as a means of shifting the focus of custody disputes away from the rights of the biological parents to the best interests of the child, as manifested by the child’s need for stability and continuity with regard to relationships with significant others in the child’s life. The psychological parent may be a biological parent but is not necessarily so. Rather, the psychological parent is the individual who has fulfilled the child’s “psychological needs for a parent”.


Courts most commonly have raised the concept of the psychological parent when they were choosing between custodial arrangements offered by biological and nonbiological parents, particularly if they were attempting to justify refusal to award custody of a child to a biological parent. Some courts have awarded custody to a stepparent rather than to a biological parent if the stepparent has had a prior strong relationship with the child and is seen as more likely to fulfill the child’s need for stability and continuity. Another area of law involving the concept of psychological parenthood concerns adoption.

Legal Interpretation of Parental Roles

Despite the difficulties in defining a parent, doing so is important because legal recognition as a parent determines who may claim both rights and duties under a variety of laws pertaining to parent–child relationships. Although rights and duties vary across legal questions, such legal entitlements and obligations typically can be categorized according to the various roles parents assume under both social and legal custom. Parents may be described as authorities, providers, caregivers, protectors, and socializers. Parental privileges and responsibilities do not necessarily hold equal status across or within each role, however. For example, rights may take precedence over duties when parents function in the role of authority, but the reverse may be true when they function as providers.

In both legal and social realms, parents generally are recognized as having primary authority in all aspects of childrearing. Accordingly, pursuant to the protection of liberty under the Fourteenth Amendment, parents generally possess a right to rear their children without interference. For example, the Supreme Court has ruled that, absent a contrary compelling state interest, parents have a right to guide their children’s education.

Parent as Provider

As a general matter, simply stated, parents have a legal duty to provide for their children. This duty is based in part on the presumption that most children cannot provide for themselves adequately during their own childhood. The law, of course, is neither general nor simple. Specific questions emerge and the law must answer them. Some of these questions include: (1) Which “parents” owe such a duty? (2) To which “children” is such a duty owed? (3) What should be done when the presumption fails and children never will be able to provide for themselves (e.g., children with certain disabilities)? and (4) What should be done when children will be able to provide for themselves, but only after a period of continued dependency on their parents well into the children’s legal adulthood (e.g., adult children attending college)?

Support for minor children.

Of course, parenthood brings duties as well as rights. The duty to provide financial support and other necessaries, such as food and shelter, for children is rooted in parental rights. Historically, parents— especially fathers—have held rights to their children’s custody, control, services, and earnings. In return for such considerations, parents are expected to provide children with financial support in order to prevent the community from assuming the burden of financial maintenance.

Although they lose all or much of their control, noncustodial parents are not absolved of their duties as parents. In fact, their obligations may be specified more clearly than any control or rights they retain. In contrast, custodial parents retain their control rights whereas they remain relatively free of state-imposed standards for support. Thus, for them, the connection between their duty to support and their right to control remains intact.

Stepparents usually are not held legally responsible for the financial support of their step-children.

Support for emancipated and adult children

The responsibility to provide for the support of a child does not persist in perpetuity. Another problem involves the determination of the point at which such responsibility ends. Although this transition typically occurs at the age of majority, it can occur earlier if the child is emancipated or later if the child is disabled.

The duty of parental support is based on a child’s inability to support him- or herself. Because complete emancipation relieves a parent of financial obligations, courts and legislatures are generally conservative in determining emancipation of a minor child.

There also is typically no bright line standard to determine whether parents have a financial obligation to their adult child, but such a duty generally applies where an adult child is incapable of self-support because of mental or physical disability.

Inheritance

To some degree, parents continue as designated providers even after death. In every state, intestate laws provide for some share of a parent’s estate to go to his or her children when that parent has failed to leave a will. In such situations, all siblings receive an equal share, regardless of age or other limitations on earning power.

Although provision of support after the death of a parent may be expected by the law, such support generally is not a duty. When a parent has drawn a will, every state allows parents to disinherit children, making no provision for them after the parent’s death. No such mechanism for disinheritance exists for spouses, however, so that some level of protection may remain for children who are not listed as intended beneficiaries in the deceased parent’s will.

Parent as Caregiver

Of course, children need more than financial support. The law supports and values the performance by parents of numerous caregiving activities on behalf of their children.

Parental consent to treatment

Parents’ rights in executing their health caregiving authority are established in parental consent requirements for treatment. Parental consent is required in most situations involving medical treatment and nonemergency treatment of children, and such treatments that have not been authorized by parents have resulted in successful lawsuits.

State-ordered treatment

The State of Utah does intervene in specific situations regarding young children (as well as older children) when parents fail to provide necessary medical treatment to a minor child, even if the reason for the failure is the parent’s religious beliefs. There is considerable legal authority for states to remove children from the custody of their parents in order to obtain necessary. Courts do so through their parens patriae power—the authority and duty to act in the place of the parent to protect the interests of the child.

Becoming a Parent

Every child’s first parents are the ones who create him, and their first act as his parents is to do so. On one view, that act is completed at the moment of conception. Carrying the child to term and giving birth are later acts of parenthood that are performed after the creating is done. On a different view, creating a child takes a good deal longer.

A second way to become the parent of a child is by adoption. That confers the same rights and responsibilities as creating the child, as long as no one’s rights are violated in the process. The child must be “available for adoption,” and must be given up without coercion. When that restriction is satisfied, the adoptive parents are in exactly the same position as the biological ones were where their moral standing in the child’s life is concerned. They differ only in the way in which they came to have that standing.

It is also possible to become the parent of a child informally, by joining the child’s other parent in this role. As with biological parenthood and adoption, the “joining” can’t be achieved through coercion or some other violation of rights, but when the other parent freely gives permission it is a third way to obtain the same rights and obligations that a biological parent has.

Before you start the process for adoption of a child, speak to an experienced Sandy Utah family lawyer to know your rights as an parent of an adopted child.

Sandy Utah Family Law Attorney Free Consultation

When you need legal help with a family law case in Sandy Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with Divorce. Child Custody. Child Support. Modification of Custody Order. Modification of Divorce Decrees. Qualified Domestic Relations Orders (QDROS). Legal Separation. Alimony. Prenups. Post Nups. Guardianships. Conservatorships. And Much More. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Source: https://www.ascentlawfirm.com/family-lawyer-sandy-utah/

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মঙ্গলবার, ৪ ফেব্রুয়ারি, ২০২০

Can You Get Your House Out Of Foreclosure?

Can You Get Your House Out Of Foreclosure

Did you know that there is possible way to stop a foreclosure sale? And you don’t need an attorney or an expensive service. You can do it yourself. All you need to do is get someone to take you through the forms. If you’re asking yourself, “can I save my house from foreclosure?” and the next question is “how much time do I have?”

You can file a bankruptcy before the auction and still stop sale. But unless you’re a real pursuer, you do not want to cut it that close. The moment bankruptcy is filed in the court, the lender can’t have an auction or sheriff sale. They have to stop the sale. Most people think they have to hire an attorney and pay thousands of dollars. There are a whole lot of things to consider and eventually, you may want to hire an attorney, but first things first. You can deal with all that later after you take away the instant threat of losing your home. Remember the immediate goal is stopping the sale. The good news is that all you need is initial filing in place for that to happen.

That’s all it takes to stop foreclosure. With so many homes landing in foreclosure, it is not quite surprising that there are many foreclosure loan out there, both online and offline. To get your house out of foreclosure, it is important to make sure that you are checking out foreclosure loans. These loans are given to those that are in risk of sheriff’s sale. The great thing about such loans is that the companies already understand that you have had some recent hits to your credit report, otherwise, you won’t be asking them for help in the first place. Always keep in mind these loans are most likely to carry more significant interest rate.

Though it might be fair to some, but it may be the only option to save your home, and it’s a risk worth dying for.

Once you have your house pulled out from foreclosure, you can then concentrate on paying off the foreclosure

loan or maybe even refinance it. Let it be as if you’re looking for various companies out there that offers these type of loans. If you have the sometime to spare, you might want to make sure that you’re comparing the interest rates of a few different companies. You can keep your house and maybe get it for free, if you can fight for it. We all know the reason why a house goes into foreclosure is because the mortgage payment of the house was not paid. If your house is about to go into foreclosure or you’re few days late on your mortgage, there are some things you can do to keep your house out of foreclosure. One thing is to contact the bank that holds the mortgage. It is unlikely, but it is possible for the bank to that holds the lease to work out a payment plan or even put a hold on payments for a few months. This may be a small chance, but it’s worth trying out.

Another thing you can do to keep your house out of foreclosure is to take short term loan or advance payment loan. It is known that some business personnel do ask for an upfront payment and runs off with the money without giving you the loan. Also, you can sell your house to an investor who will allow you to stay in the house. This might not be your favourite option, but it is better than destroying your credit card and being kicked out your house. It is never easy to have a house that is about to go into foreclosure, but if you use some of this listed information above, it will surely help you overcome any situation regarding foreclosure. It is essential you understand that your bank might not be interested in taking your house because they will auction it and they won’t be able to sell at reasonable price. During these financial tough times, many people will be struggling to make their mortgage payment. You must make sure you communicate with your lender to discuss about the option that fits your need.

Remember that if you want to save your house, the best thing you can do is have open discussion with your bank. Let them know you’re struggling with the monthly payments. Whatever the reason, they will be willing to work out some options to ensure your house doesn’t go into foreclosure. First, you should know there is no better way to save your house unless you get a job. With a refinance, you will be able to extend the time for payments of loan or possibly reduced the interest rate. However, this option is only available to those who have not missed any payments and also have good credit card.

If you’ve missed mortgage payment already, you can talk to your lender about getting a loan modification. This is the same thing as refinance. However, it will have negative effect on your credit card but it will save your house from foreclosure. Mostly, you’re in a mess if you miss 3 mortgage payment. Because once you missed it, the bank will send a notice that you should leave the house between 20 days. If you have Notice of Default [NOD] from a lender, threatening to take your house, these are the things you can do get it back.

Contact the lender directly

Yes, you don’t have to ignore the lender because of fear or panic. Go to the loss mitigation department to see if you have options that would help you. The lender’s ultimate intention is not to foreclose your property unless they have no other option of getting their money back. A lender would prefer to avoid the process because of the costs. While meeting with the lender, negotiate the terms and conditions of the loan. The monthly payments you make could be adjusted or the payment time for the loan could be extended.

Go for loan

You can contact your bank to help you out with a foreclosure loan. Before going for this option, ensure that equity (the difference between the market the value of your case and the claims held against it) is high. Some private investors can offer such loans with moderate interest. Also, if you consider the online option, you may get lenders with lower interest rates. Loan to so stop foreclosure can help you refinance your debt and forestall the foreclosure process. Also, ask for your friends, associates, or relatives to lend you some funds to pay off your mortgage. You never might tell who can help you out. So, never keep anything to yourself.

Outright sale

When you want to get out of foreclosure, you might decide to sell your house in the right way. This means you’re going to use the process from sale to pay off your debt or mortgages. One tip to get a reasonable price when selling your house is to remodel or improve it before listing. A repaired or upgraded home will attract good money.

Short sale

You may choose to go for a quick sale when you intend to stop foreclosure. This procedure enables you to sell your house at reasonable prices with permission from the lender, mortgage, or bank. If the value of the remaining mortgage is $150,0000, you may short sell it for $135,000. Once you’re in foreclosure, consider the value of your house to be less than the mortgage owned. If that’s the case, then a short sale is the good option for you.

Remember that your bank does not want to own your house because it won’t be easy to sell it off. your best option is to have an open line of communication with your lender and work out a payment plan that helps you stay in your house. You should not be intimidated by your bank and working out the situation is your best hope.

Foreclosure Lawyer Free Consultation

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Source: https://www.ascentlawfirm.com/can-you-get-your-house-out-of-foreclosure/

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Spousal Elective Share

Spousal Elective Share

In Utah, a surviving spouse has a right to a share of the deceased spouse’s estate unless the surviving spouse has specifically waived that right. Absent a waiver, one spouse or his or her children cannot stop the surviving spouse from receiving this share. If both spouses’ children are mutual to each other (meaning the deceased spouse has no children from a prior marriage or relationship) the surviving spouse receives the entire deceased spouse’s estate. If both spouses’ children are not mutual to each other (meaning they have a blended family and at least one of the deceased spouse’s children is not also the surviving spouse’s child) the surviving spouse receives a certain percentage of the deceased spouse’s estate.

This percentage is an augmented share based on a calculation involving a somewhat complex formula including a homestead, family allowance, and exempt property as factors. It is intended, depending on the size of the estate, that the surviving spouse will receive up to $75,000.00 and then a percentage of the remaining estate and the deceased person’s children will receive the other percentage. A probate will likely need to be filed to formally determine the decedent’s heirs and the amount of the elective share. As noted, the calculation for how much a surviving spouse will receive is somewhat complicated and depends on the size and type of property in the estate. Probate and Second There is a truism in the realm of probate and estate planning that where you fail to plan, the State will plan for you.

The law offers everyone the opportunity to dictate how their property and assets will be administered at their death. These options range from simple to complex, from a basic will to a detailed trust or family limited partnership. Regardless of what option you choose, the best advice is to do something rather than nothing, because doing nothing only ensures that you have no say in how your estate is administered and distributed. Doing nothing means your estate will be distributed as dictated by the legislature and the courts. For traditional families (i.e., husband, wife and children), a typical estate plan usually mirrors the distribution scheme provided for by the Utah Probate Code. Specifically, the estate passes to the surviving spouse, and then to the children. Many families do not fit the traditional mold, even if they start out that way. Much probate litigation occurs in the context of non-traditional, blended families and stepchildren. We all hope that our families will be able to handle our passing, get along, and work together, but experience shows that the lack of an estate plan often results in people looking out for their own interests rather than honoring the deceased’s wishes.

Two commonly misunderstood issues in probate litigation involve either the “spousal elective share” or the “spousal intestate share.” The spousal elective share allows a surviving spouse to receive a specified amount from the estate even though he or she was omitted from the will or was intentionally disinherited. The exact amount is the subject of a complex calculation, but, generally, it is one third of the augmented estate with a minimum of $75,000. Similarly, the spousal intestate share provides that where you are survived by your spouse as well as children who are not descendants of your spouse (e.g., your spouse’s stepchildren, including your own children from a prior marriage) the surviving spouse is entitled to the first $75,000 from the estate as well as one half of the remaining property of the estate. Disputes often arise in connection with estates that are valued at less than a hundred thousand dollars, which may leave much less for your children than you intended, or might result in more going to someone you might have intended get little or nothing.

In addition to these special spousal provisions, the law also dictates to whom property will pass in the event you die without a will. Generally, property passes in the following order:

• spouse;

• descendants;

• parents;

• siblings;

• grandparents;

• aunts/uncles;

• Cousins.

A Utah decedent has the ability to dispose of all property that is titled in his or her name at the time of death. Utah is not a community property state. Utah does draw a distinction between marital property and separate property, but the distinction is relevant only for divorce. The distinction is not relevant for determining what property the decedent may dispose of at death. The one exception to this rule is that the distinction between marital and separate property is used in calculating the surviving spouse’s elective share. Real estate held by a married couple “as husband and wife” is deemed to be held in joint tenancy with right of survivorship.


Real estate held by a married couple without such a designation is deemed to be held as tenants in common. If the decedent is survived by a spouse, and if all of the decedent’s descendants are also the surviving spouse’s descendants, the surviving spouse is entitled to all of the property that passes under the rules of intestacy. If the decedent is survived by a spouse, and if the decedent is survived by one or more descendants who are not the surviving spouse’s descendants, the surviving spouse is entitled to $75,000 plus one-half of the balance of the intestate property. Adjustments are made for non-probate transfers to the surviving spouse. Property not passing to a surviving spouse is distributed to the decedent’s descendants per capita at each generation. If the decedent is not survived by either a surviving spouse or any descendants, the intestate property passes to the decedent’s parents. If neither of the decedent’s parents survives the decedent, the intestate property passes to the descendants of the decedent’s parents per capita at each generation.

If the decedent is not survived by any parents or descendants of parents, one-half of the intestate property passes to the decedent’s maternal grandparents or to their descendants per capita at each generation, and one-half passes to the decedent’s paternal grandparents or to their descendants per capita at each generation. If the decedent is survived by none of the foregoing persons, the property passes to descendants of the decedent’s predeceased spouse. Adjustments are made for non-probate transfers to such heirs.

Distribution Methods in Utah / Per Capital at Each Generation

The default method of distribution in Utah is the per capita at each generation method. This method applies where the decedent dies intestate. It also applies where the will or trust directs distribution to a person’s issue or descendants but is silent as to the method of distribution to be applied. Of course, where the will or trust specifies a different method of distribution, the will or trust governs. Under the per capita at each generation method of distribution, each living child receives one share, and one share is assigned to each deceased child who left surviving descendants. The shares assigned to deceased children are all aggregated and divided equally among their children.

Utah has a Streamlined Probate System


Utah has adopted the Uniform Probate Code. The probate process is thus relatively simple and requires minimal court involvement. Unless a party petitions the court for judicial resolution of a matter, an estate can be probated without any hearings before a judge. Everything can be handled through the clerk at the filing window. The personal representative has the authority to distribute property and sign deeds.

Small Estate Affidavit Procedure

No probate is needed in Utah if the total amount of the decedent’s property that would otherwise be subject to probate is less than $100,000 and if none of the property is real property. An affidavit will suffice to give banks and brokerage firms holding the property the authority to distribute it to the persons entitled to it.

Revocable Trusts are Valid


Revocable trusts are valid and commonly used in Utah. No particular vesting language need be included in the trust in order for it to be valid.

Execution Requirements for Wills

A will must be witnessed by two persons, each of whom must see the testator sign the will, acknowledge her signature or acknowledge the will, and each of whom must sign the will as a witness within a reasonable period of time thereafter. Utah has enacted a substantial compliance statute that focuses on the intent of the testator.

Surviving Spouse’s Elective Share

A decedent’s surviving spouse may choose to take her statutory elective share in lieu of what she receives under the decedent’s estate plan. In very general terms, the elective share is one-third of the augmented estate. The augmented estate consists of all marital property (i.e. property earned during marriage, including income and appreciation thereon) owned by either the husband or the wife.

Other Family Protection Statutes

Utah provides a $15,000 homestead allowance to the decedent’s surviving spouse or, if there is no surviving spouse, to the decedent’s minor children. In addition, the surviving spouse or, if there is no surviving spouse, the decedent’s minor children, are entitled to $10,000 in furniture, furnishings and personal effects. In addition, the court may grant a reasonable living allowance to the family for living expenses during the period of administration, not to exceed one year.

Enforceability of No Contests Clauses

No contest clauses in wills and revocable trusts are enforceable in Utah only if there is no probable cause for the contest.

Utah Asset Protection Trusts


Utah permits self-settled asset protection trusts. The trust must be irrevocable and the words “asset protection trust” must appear in the title. The trust must have a corporate trustee, and at least some of the trust assets must be held in the form of cash or stocks in an account with the trustee. The trust must not provide for mandatory distributions.

Utah Rule Against Perpetuities

Utah has enacted a version of the Uniform Statutory Rule against Perpetuities Act. Utah has enacted anti-lapse statutes that apply to wills, revocable trusts and beneficiary designation arrangements. The statutes apply where the predeceased beneficiary is a grandparent of the decedent, a descendant of a grandparent of the decedent or a step-child of the decedent. A decedent’s heirs under the Utah wrongful death statute are different from the heirs under Utah’s rules governing intestate succession. The heirs for purposes of the wrongful death statute are the decedent’s spouse, children and parents and, in some circumstances, the decedent’s step-children. If the decedent is survived by neither spouse, children nor parents, the decedent’s intestate heirs will also qualify as heirs for purposes of the wrongful death statute.

The Will of an Estate

The estate owner may use a will to provide for heirs when he or she passes. In the provisions, this person may state which party receives how much from the estate. In some wills, the estate owner may disinherit the spouse. However, the elective share process may bypass this and still provide for the spouse. In many situations where this is possible, the courts will not protect any asset, and some businesses may even break up and sell in parts to pay for the up to one-third share. This process could invalidate the will’s provisions for the spouse and change how much children inherit.

You Need A Will

While the estate owner may die without his or her wishes followed due to the elective share, the rest of the will may provide for other heirs. Additionally, the spouse may already know he or she will not receive the same amount as what the state’s elective share would give. If the spouse is willing to waive the elective share, the provisions in the will may stand in completion. This could protect businesses, provide for children or grandchildren and give to charities or other dependents. The surviving spouse may receive monetary assets in another manner that are in excess of the elective share. If the estate owner died without making a will, the estate will go through a default probate court process. The heirs of the estate may still receive an amount provided by the state for the assets that remain. However, the probate courts may use businesses left as a means of sale and profit. Instead of passing a company to another person, it may undergo a sale and the proceeds given to the heirs and spouse. To prevent this and other actions, the estate owner needs to create a legal document that specifies what happens to the assets.

The elective share rule is the default setting for a spouse that faces an estate with no will or other provisions in place. In the usual situation, the spouse and direct children have an opportunity to receive an amount of the estate in percentage based on who the party is. If the spouse does not want to take advantage of the elective share, he or she does not need to do so and may choose to waive this right. This is entirely up to him or her. While the minimum of this process may alter the business or assets transferred to the children or other dependents, the spouse may waive any elective share rights to keep the estate intact and not interrupt the inheritance of others.

Probate Lawyer in Utah Free Consultation

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Source: https://www.ascentlawfirm.com/spousal-elective-share/

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Criminal Lawyer Salt Lake City Utah

Criminal Lawyer Salt Lake City Utah

Under Utah criminal law, an arrest is an action in which a police officer takes away a person’s freedom in some significant way. A person can be arrested when an officer has a good reason to believe the person has committed a crime or is in the process of committing one. A police officer doesn’t have to say “you’re under arrest” for an arrest to occur – a command such as “Stand still” or “Come along” usually is enough. If you or anyone you know has been arrested, contact an experienced Salt Lake City Utah criminal defense lawyer.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. A search without a warrant by government agents is presumptively unreasonable. Even so, under certain circumstances, the Supreme Court has recognized that a warrantless search does not offend the Fourth Amendment. A search conducted pursuant to valid consent is an exception to both the probable cause and the warrant requirements of the Fourth Amendment. The Court has developed several lines of consent-search jurisprudence: (1) citizen-defendant consent searches, (2) third-party consent—citizen with actual authority, and (3) third-party consent—citizen with apparent authority. Our hypothetical is based on the apparent authority variety.

Defining consent is a critical step in order to determine the applicable line of jurisprudence. Generally, the police search of property without a warrant or without probable cause is constitutional if it was made pursuant to voluntary consent. The question of whether consent was voluntary or the product of duress or coercion is a question for the courts. In any event, voluntariness is to be determined from all the circumstances. The confessor’s knowledge of a right to refuse consent may be a factor in the totality of the circumstances, but not a dispositive one.

Involuntary consent occurs when the circumstances created by the police cause the target (confessing party) of the search surprise confusion or fright—so much so that the citizen’s will to say no is overcome. Similarly, consent has been invalidated where it was the product of threats. Courts have considered many factors in the totality of the circumstances.
Citizen Yields to a Policeman’s Claim of Authority to Search
Pursuant to a Warrant—Acquiescence

There is no voluntary consent when a citizen complies with a policeman’s untruthful assertion that he possessed a warrant to conduct a search. Such a concession is not voluntary consent, but unlawful acquiescence. A citizen who acquiesces to a policeman’s claim of authority cannot voluntarily consent.

Third-Party Consent—Actual Authority versus Apparent Authority
Where a person other than the target of the search gives consent to the police another type of consent analysis applies: third-party consent. Under the third-party consent exception, the consent may be obtained from someone other than the target of the search. There are two varieties of third-party consent.

First is the actual authority variety. Under this category of consent, in order for a third party to have authority to give consent, he must (actually) possess common authority over or have other sufficient relationship to the premises or effects sought to be searched. A prosecutor offering to prove third-party consent pursuant to this theory must show that the third-party consenter possessed common authority over the premises, and that possession is valid against the absent non-consenting person with whom that authority is shared. Consequently, the target (non-consenting party) of the search has assumed the risk that the third-party consenter would admit others.

Second is the apparent authority variety. This type of third-party consent does not require either joint access or assumption of risk. The Supreme Court has said that as with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: Would the facts available to the officer at the moment warrant a man of reasonable caution in the belief’ (apparent) that the consenting party had authority over the premises? Hence, if a third party appears to have actual authority and the police reasonably rely on that appearance, the consent is valid. Indeed, the officer’s reasonable reliance may be incorrect, but such an error will not invalidate a third-party consent because the Fourth Amendment only requires the government to act reasonably. Under this version of third-party consent the test is reasonableness.

A search or seizure conducted without a warrant is presumptively unreasonable. However, a warrantless entry may be reasonable if based on exceptional circumstances. An exceptional circumstance occurs when there are exigent circumstances in which to preserve the evidence of the crime police action literally must be now or never. In other words, under exigent circumstances it is permissible for the police to act without prior judicial approval.

Now-or-never searches have included warrantless entry (1) to a suspect’s home due to exigent circumstances, (2) to provide emergency aid, (3) to search a readily mobile automobile, and (4) to conduct searches and seizures for evidence that is in imminent danger of destruction.

Warrantless Search of a Movable Car

The so-called automobile exception allows the police to conduct a warrantless search of a car under exigent circumstances. Where the police have probable cause that an automobile contains contraband, but it is not practical for the police to secure a warrant, the police may conduct a warrantless search of that automobile because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

The main rationale for permitting a warrantless search of an automobile is that automobiles are readily movable, and the opportunity for a search is fleeting. The automobile could only be lawfully searched (1) without a warrant if the search was conducted at the scene of the stop, or (2) with a warrant where the search was conducted at the police station.
Under this lesser expectation of privacy rationale, it is permissible for the police to conduct a warrantless removal of paint scrapings from the exterior of a citizen’s car. An automobile’s interior (entitled to protection of at least those areas not exposed to public view) from its exterior (not entitled to protection).

The automobile exception is applicable to motor homes because a motor home is more like an automobile than a home. Although this exception relied on the ready mobility of the vehicle and on the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation, it curiously implied that the automobile exception may apply to a vehicle even if that vehicle is situated in a way or place that objectively indicates that it is being used as a residence.

Arrest without a Warrant in a Public Place

The United States Supreme Court has consistently observed that it is a cardinal principle that warrantless searches are per se unreasonable under the Fourth Amendment. However, the Court has recognized that this cardinal principle is subject to a few specifically established and well-delineated exceptions. One such delineated exception is that the Fourth Amendment does not require a warrant to make a valid arrest for a felony offense.
Where a police officer has probable cause that a citizen has committed a criminal offense (no matter how minor), the police may arrest without balancing (governmental and individual interests) costs and benefits or without determining whether the arrest of the citizen was in some sense necessary. Balancing, however, may be appropriate under special circumstances.

Moreover, a person’s capacity to claim the protection of the Fourth Amendment, does not depend on a property right but on whether that person had a legitimate expectation of privacy in the invaded place. However, one who merely claims to be legitimately on the premises may not claim the protection of the Fourth Amendment. On the other hand, a house guest may claim such an expectation of privacy in his host’s premises.

A search incident to a lawful arrest involves two types of warrantless searches: the arrestee’s person and the area within his immediate control. The justification or reason for the police authority to conduct a search of the arrestee’s person after a lawful arrest rests as much on the need to disarm the suspect, in order to take him into custody, as it does on the need to preserve evidence on his person for later use at trial.
A custodial arrest based on probable cause is a reasonable intrusion under the Fourth Amendment. And as the arrest was lawful, a search of the person incident to that lawful arrest requires no additional justification. Consequently, a full search of the person (and any containers on his person) is always reasonable as an incident to a lawful custodial arrest. Moreover, this reasonable search of the person was not dependent on the existence of police department policy establishing the conditions under which a full-scale body search should be conducted.

The Fourth Amendment is implicated when a government agent conducts a search or seizure. A search or seizure is presumptively reasonable if it was made pursuant to a warrant or a recognized exception to a warrant. A search incident to a lawful custodial arrest is a recognized exception to the warrant requirement. And, a search incident to a lawful custodial arrest allows the arresting officer to conduct a warrantless search of the arrestee’s person and the area within his immediate control. Moreover, the police may conduct a warrantless search of a person incident to a seizure other than a custodial arrest, and based on fewer facts than required to establish probable cause.

There is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion that the search or seizure entails.

In order to justify an intrusion on a citizen’s Fourth Amendment interests on a less-than-probable-cause basis a police officer must be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant that intrusion. Moreover, the state must show that those facts known by the officer at the moment of the seizure or search would warrant a man of reasonable caution in the belief that the action taken was appropriate.

A law enforcement agent may stop a citizen on facts that amount to less than probable cause to arrest if the officer can point to specific and articulable facts that, taken together with rational inferences from those facts, would warrant a man of reasonable caution in the belief that a brief investigative stop is appropriate. Consistent with this stop the officer may take steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. And when conducting that pat-down if the officer feels what he immediately recognizes as contraband (non-weapon), he may reach inside the clothing and seize it pursuant to the plain feel doctrine.

The Fourth Amendment is implicated when the government conducts a search or seizure. A seizure may involve a custodial arrest, a stop and frisk, a stop and interrogate (including a traffic stop), or a situation when either a police officer uses physical force to detain a person or a person submits or yields to a police officer’s show of authority. On the other hand, consensual encounters or those unrelated to the detection and investigation of criminal conduct do not implicate the Fourth Amendment: for example, when police are engaged in so-called community care taking tasks (i.e., removing abandoned cars from the highway).

A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the government’s action, by means of physical force or show of authority, terminates or restrains the person’s freedom of movement through means intentionally applied. Generally a seizure does not occur simply because a police officer approaches an individual and asks a few questions (this is a consensual encounter), so long as a reasonable person would feel free to disregard the police and go about his business. Indeed, no justification is required for the police to approach (consensually encounter) a citizen under such circumstances.

Criminal law

essentially deals with crime. If you have been arrested by the police, the first thing you need to do is call an experienced Salt Lake City Utah criminal defense lawyer. As a person charged with a crime, you have the right to an attorney. Exercise your right. This right is guaranteed by the constitution of the United States of America to protect you.

Salt Lake City Utah Criminal Attorney Free Consultation

When you need a criminal lawyer in Salt Lake City Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. Drug Crimes. Sex Crimes. White Collar Crimes. Assault. Battery. And More. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Source: https://www.ascentlawfirm.com/criminal-lawyer-salt-lake-city-utah/

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