Family Law

• Divorce
  While most of the issues involved in Divorce Law are similar across the country, Divorce Law itself is very state-specific. It’s better to have a divorce lawyer who’s actually been practicing divorce and custody law locally, rather than a franchise of some out-of-state law firm with catchy radio ads. And, don’t be fooled by mediation mills that try to convince you that “divorce without lawyers or courtrooms” is the way to go. At best, they must remain neutral and cannot advise you as to the law and your rights. At worst, they’re attempting to practice law without a license.
• Child Support
  Child support in Utah is almost always determined by statute. In a sole custody situation, both parents’ incomes are added together and a total support obligation is determined by reference to the statutory table or by applying the statutory formula. The total support obligation is then divided between the parents according to their respective contributions toward the total combined income, and the non-custodial parent is ordered to pay his/her portion of the total support obligation to the custodial parent.
• Child Custody and Visitation
  Of the minor children in a divorce case will always go in favor of the Mother unless she is shown to be “unfit.” Our child custody lawyers in Utah know that this just isn’t true.
• Premarital Agreement
  Surviving Spouse. Most married people want to leave everything to their surviving spouse, trusting that he or she will use what they need and make sure that whatever is leftover is fairly distributed among the children, etc. However, if you have children from a prior relationship you may want to take steps to ensure that those children also benefit from your estate rather than trusting your current spouse to take care of them. Some people try to disinherit their surviving spouses entirely. This usually doesn’t work very well as Utah’s version of the Uniform Probate Code grants to a surviving spouse an “elective” share of essentially one third of the decedent’s “augmented estate.” This makes it very difficult to disinherit one’s spouse without his or her consent. One way get around the surviving spouse’s elective share is by entering into a prenuptial or postnuptial agreement that limits one spouse’s claim to the other spouse’s assets in the event of divorce or death. Prenuptial and postnuptial agreements are discussed at more length in the link to our Family (Divorce) Law page.
• Spousal Support
  In Utah, alimony is determined by balancing one party’s need (i.e., to maintain the same standard of living enjoyed during the marriage, or at least roughly equal to that to be enjoyed by the other party after divorce) against the other party’s ability to pay money to meet that need. Alimony is, however, generally limited by statute to a period not to exceed the duration of the marriage, and is usually ended by the death of either party, or the remarriage or unmarried cohabitation of the receiving party with a person of either gender. (Cohabitation implies a non-temporary arrangement similar to that usually seen between spouses, but without actually being married, and must be proved to the court by the paying party before he or she can actually stop paying the alimony.)

Criminal Law

• Forgery
  What is probate? Probate is the process by which the estate (the assets) of a deceased person are administered and distributed with some level of court involvement.  The most common form of probate case is where the court is asked to appoint a personal representative (executor) to administer and distribute the estate of a person who either had a will (testate) or did not have a will (intestate) at the time of his or her death.  Depending on the circumstances, the appointment of the personal representative and the administration of the estate can be either by a “formal” or an “informal” process. Probate litigation occurs when someone challenges either the appointment of the person who is seeking to be appointed as personal representative, or is trying to remove the personal representative after he or she has already been appointed, or by someone who is challenging how the estate is being administered.  Challenges regarding appointment include such issues as who has legal priority to be appointed, and whether a person who otherwise has priority should be disqualified from serving because of a history of dishonesty or other issues.  Challenges regarding administration can include such things as determining whether a document qualifies as the decedent’s will, whether a document that appears to be the decedent’s will is genuine or a forgery, whether a genuine document that otherwise qualifies as a will should not be enforced because the decedent lacked sufficient mental capacity to execute it at the time he or she signed it, or whether the document does not, in fact, reflect the genuine desires of the decedent because he or she was under the “undue influence” of someone else at the time he or she signed the will.  Probate litigation can also involve similar issues as they relate to trusts that the decedent may also have created before his or her death and the successor trustee(s) that are now charged with administering them.

Business and Corporate Law

• Corporate Law
  There are many types of business entities. The most common are: Sole Proprietorship, Partnership, Limited Partnership, Limited Liability Company (or “LLC”), and the so-called “S” and “C” Corporations. Each business form has different rules for personal liability, tax liability and internal governance. For reasons we can explain during our initial consultation, we believe that the LLC, the “S” Corporation or the “C” Corporation are the best choices for the vast majority of businesses. Once you have selected the proper form for your new business, in addition to drafting, signing and filing articles of organization (for an LLC) or articles of incorporation (for a corporation), you probably should also have an operating agreement (for an LLC) or bylaws (for a corporation) to govern how your company is run – especially if there will be more than one owner. You may also want a member agreement (for an LLC) or a shareholder agreement (for a corporation) to govern how major owners will conduct themselves when significant events happen. As Business Lawyers in Salt Lake City, Utah, we can assist you with negotiating, drafting, properly executing and implementing these important documents. We can also assist you with understanding and complying with the on-going governance rules that apply to your business entity.
• Mergers and Acquisitions
  Attorney representing clients in the areas of general civil litigation (including bankruptcy litigation), a wide variety of business transactions (including real property, personal property, mergers and acquisitions), family (divorce) law, and estate planning and probate matters.
• Business Disputes
  At J.D.Milliner & Associates, we understand Business Law and appreciate the fact that small businesses are the engine that drives our local and national economies. We also understand that entrepreneurs and business owners face a myriad of legal issues in starting, running, building, and eventually selling their businesses, or passing them on to the next generation.
• Business Transactions
  Associate Attorney in local branch office of large New York City-based law firm assisting senior attorneys in representing businesses and individuals in civil litigation matters, with a focus on bankruptcy litigation, and in sophisticated business transactions.
• Limited Liability Companies
  In addition to asset protection trusts, a properly drafted “spendthrift trust” can preserve assets for minor children or someone with diminished capacity, and a so-called “special needs trust” can provide money to enhance the life of a person with a serious disability without disqualifying him or her from the government disability and health care benefits that he or she will likely need for life. Properly structured limited liability companies and family limited partnerships can also help here.

Trusts and Estates

• Estate Planning
  A comprehensive estate plan may keep most, or even all, of your assets from having to go through the probate process after your death.  By contrast, failure to do estate planning virtually guarantees that some form of probate will be necessary.  Very frequently, however, even when good estate planning has been done, it may still be prudent to open a probate case for a decedent – even if it is only for the purpose of cutting off potential claims by unknown creditors by publishing notice that a personal representative has been appointed and asking that creditors present their claims within the next 90 days.  Fortunately for Utah residents, and the residents of most other states that have adopted the Uniform Probate Code, probate in Utah is neither as expensive nor as time consuming as many people believe.  A good probate attorney can help make the process go even more quickly and smoothly for the survivors.
• Wills
  There are certain decisions, however, that you may want to make in advance of any incapacity as a matter of personal preference and to spare your loved ones the agony of having to make them, such as when to “pull the plug.” An Advance Health Care Directive instructs your health care providers what to do if you are in a “terminal condition” (i.e., death is imminent unless drastic measures are taken) or a “persistent vegetative state” (brain dead). These types of provisions can also be included in what is sometimes called a “living will.” Living wills, however, often also include funeral instructions and similar types of last wishes. Every fully-integrated estate plan should also include an Advance Heath Care Directive and/or Living Will.
• Trusts
  How do you protect your assets from those who might want to try to take them from you or from someone you love? In addition to making sure that you have appropriate insurance in place, you may want to consider an Asset Protection Trust. While the Fraudulent Transfers Act makes it difficult to protect your assets from presently known creditors who have legitimate claims by transferring them to a third party, a properly drafted and funded asset protection trust can go a long way toward protecting your assets from potential future creditors and from presently existing creditors who do not act in time. By statute, Utah recognizes asset protection trusts as irrevocable trusts in which the “settlor” (the person who places assets into a trust) is also a “beneficiary” (a person who receives benefits from those assets) of the trust. To qualify as “irrevocable” the trust document must make it clear that the settlor cannot unilaterally change or dissolve the trust, nor can the settlor generally remove assets from it. The settlor may, however, serve as a co-trustee of the asset protection trust, subject to certain limitations, and may change or dissolve the trust, or remove assets from it, if another substantial beneficiary of the trust, whose interest would be adversely affected, approves the change to or dissolution of the trust, or the removal of the asset(s) from it. Distributions from the trust to the settlor may also be made in the discretion of someone, such as a trustee, who is not the settlor, or according to certain permissible standards set out in the trust document.
• Power of Attorney
  There is a very high probability that each of us will become disabled, at least temporarily, at some point during our lives. Depending on the nature of the disability, we may also become “incapacitated” and not be able to make responsible decisions for ourselves or our assets. Fortunately, the law provides a mechanism by which we can appoint someone else to make decisions for us. An appropriate power of attorney, which is based in the law of principal and agent, authorizes someone you want to act on your behalf as an “attorney-in-fact,” which can be “general” (i.e., authorized to do pretty much everything) or “limited” to certain areas, such as making healthcare decisions under a healthcare power of attorney. Care should be taken, however, in deciding who to appoint and under what circumstances their powers are to be effective, as powers of attorney are sometimes abused by attorneys-in-fact who start acting in their own interests instead of for the benefit of their principal. Indeed, because most powers of attorney are effective immediately regardless of incapacity, attorneys-in-fact sometimes start acting for their own benefit even before their principal becomes incapacitated in the hope that they either won’t get caught or that their principal with let them off easy if they are. In addition, while at common law a power of attorney was deemed to be ineffective while the principal was incapacitated unless the power specified that it was “durable,” i.e., remained in force, the Utah legislature recently adopted the Uniform Power of Attorney Act which, among other things, provides that all powers of attorney are “durable” unless specified otherwise. As a result, we sometimes advise our clients to use what’s called a “springing power of attorney” that “springs” to life only when the principal becomes incapacitated. Whether general, limited, non-durable, durable or springing, however, every power of attorney terminates at the death of the principal. Despite their potential for abuse, every good estate plan includes one or more powers of attorney.
• Probate
  At J.D. Milliner & Associates, we have many years of experience dealing with the issues commonly involved in divorce cases and, because of our additional backgrounds in business law and trust, estate and probate law, we are also well equipped to assist business owners and professional people through the less common issues that are also involved in their divorces. As a result, our divorce lawyers in Utah County regularly represent small business owners and professional people, such as doctors, lawyers and accountants, in their divorces and related proceedings.

Finance Law

• Bankruptcy
  No one ever plans to experience the kind of financial hardship that would force them to file bankruptcy. But, the loss of a job, unexpected medical bills, and/or other financial setbacks, such as those caused by divorce, cause tens of thousands of people to file bankruptcy every year. The bankruptcy process can be confusing and overwhelming. As Salt Lake City bankruptcy attorneys, we can help you explore your options and decide whether you need to file bankruptcy in the first place. If you do need to file bankruptcy, we can then determine whether you qualify to file a Chapter 7 bankruptcy, which focuses on liquidating existing non-exempt assets to pay, insofar as possible, your creditors, or whether you must file a Chapter 13 bankruptcy, under which you must create a plan of financial reorganization to pay your creditors as much as you are able over the next 3 to 5 years. Sometimes, even if you qualify to file under Chapter 7, it may be in your best interest to file under Chapter 13, or even the less common Chapter 11, anyway so you can keep more of your current assets and/or receive a more complete discharge from your existing debts. As bankruptcy attorneys in Salt Lake City, Utah, we can help you make that decision as well.
• Foreclosure
  Process includes the debtor providing a list of its creditors to the court, which promptly sends out notices of the filing and the invocation of the automatic stay. Creditors who knowingly violate the automatic stay can be severely penalized, in addition to having to disgorge whatever they may have obtained. Under appropriate circumstances, however, it is possible to get permission from the court in the form of “relief from the automatic stay,” to proceed with a foreclosure, etc. Our bankruptcy attorneys can help secured creditors obtain relief from the automatic stay so they can foreclose or seize and sell their collateral without violating the automatic stay.