#he's 16 or 17 when the betrothal is arranged and they get married like 4 months later
Explore tagged Tumblr posts
Text
Thinking about arranged aemyra again but in my trueborn AU where the boys are Laenor's bio kids and he fakes his death later, when his sons are older and can keep that secret, and Viserys goes ahead and betrothes Rhaenyra to Aemond without bothering to ask either of them for their input.
Rhaenyra, still in her mourning blacks, is devastated and a bit numb at the fact that Viserys is making her repeat his own mistakes, marrying her off to a boy barely older than her eldest son without even letting her get through a year of mourning. It would be inappropriate for a man to even ask her to dance at this point and she's expected to marry her brother in just a few short months.
Otto is furious and Alicent is heartbroken. They'd suggested Aegon as Rhaenyra's husband and Viserys went off and did this instead. Now Otto is trying to readjust his plans, especially with Viserys insisting that Rhaenyra remain heir, and Alicent is struggling with basically losing the only child that she truly sees as hers.
Jace, Luke, and Joffrey desperately wish that their mother would just get a break. She shouldn't have to sit in her rooms and weep alone and she shouldn't have to put on a poker face for the court and she shouldn't have to be forced to marry someone the king chooses when she still wakes up in the middle of the night and reaches out for Laenor.
Aemond is thrilled. He expected to be married off to some random noble lady and never be anything more than the second son and his mother's favorite child. Now, he's the betrothed of the heir to the throne and the future prince consort, and Rhaenyra as his wife is definitely not something he's going to object to.
Just a lot of angst and grief and drama.
#aemyra#rhaemond#shipcest#asoiaf#hotd#house of the dragon#he's 16 or 17 when the betrothal is arranged and they get married like 4 months later#probably a month for rhaenyra's mourning period to end#and then three more to plan the wedding and tourney and prepare for everything and give people time to travel#ua
14 notes
·
View notes
Photo
Sweeties, it’s time for
I’m In The Mood For A Fic Where…
_______
1. Ahhh mojo your blog makes my world go round and back and around again. [You’re so sweet!] I was wondering if you could help me out with your next "I'm in the mood for a fic where".. I'm looking for two types of fics
A) fics in which WWX regains his core somehow (either by working on it, divine intervention, core sharing, anything!!) I so desperately want my boy to have his precious and favourite sword back (◡ ω ◡)
B) fics where WWX (or LWJ) *almost* marries someone else.
Thank you for your help!!! (~ ̄³ ̄)~❤️ ~ @akyra-talanoa
1a.
nothing gold can stay by rikke (M, 10k, wangxian, my post)
❤️Ghosts Shouldn't by ShanaStoryteller (not rated [G], 15k, wangxian, my post)
the path to heaven / immortal wangxian by lightningalwaysreturns (E, 51k, wangxian)
Chimera by nirejseki (T, 18k, wangxian)
Righteous at a Cost by thunderwear (G, 21k, wangxian, my bookmark)
Different Paths to the Same Route by JustAWanderingBabbit (T, 184k, 3zun)
24 Hours by tailor31415 (E, 6k, wangxian)
Core-Thieving Hand by x_los (T, 5k, wangxian)
Field Trips with Wei Wuxian by antebunny (G, 43k, wangxian)
1b.
to swim through the fires by littledust (M, 37k, wangxian)
❤️Neatly Arranged by thunderwear (T, 46k, wangxian, my post)
Rebound Betrothal by mondengel (not rated (G), 2k, wangxian, my post)
History Will Call Us Wives by silvermarie (E, 17k, wangxian)
today was a smoking sky by typefortydeductions (E, 38k, wangxian)
~*~
2. hello! any recs wangxian modern au/mpreg? please and thank you!
Here’s my mpreg post (mostly current) and also
Brilliant Mistake by brooklinegirl (E, 54k, wangxian, my bookmark)
Winter Moon, White Rabbit by nachttour (E, 62k, wangxian, WIP)
Stale Spice, Sandalwood, and Nests by Tyongslips (M, 18k, wangxian, WIP)
~*~
3. Hello!! This might not be specific enough to find anything, but I was looking for modern wangxian fics that have a very distinct italicized 'oh' moments together? Like both of them or either of the pair doing something that makes them suddenly realize
every time we kiss i swear i could fly by sarahyyy (T, 3k, wangxian, my post)
【那夏天的我們】a stroke of fate by puddingcatbeans (G, 60k, wangxian)
not in so many words by jaws_3 (T, 18k, wangxian, my post)
~*~
4. In the mood for fics where WWX is genuinely afraid of LWJ, believing that he will kill him/hurt him/cast him out/haul him back to Gusu for punishment; with emphasis on LWJ's reaction when he realizes and it hits him like a sack of bricks, and ideally on his efforts to regain WWX's trust. Not looking for something where LWJ really does wish WWX significant harm, but it's ok if he has well-intended ideas that he doesn't realize would hurt him. Any time period, canon version, or AU is good. Example: decay by antebunny.
~*~
5. Hi there! First of all thank you for making such a helpful blog. I have been reading tons of great stories due to you. [I’m so glad!] Secondly I would love to read a fic (a) where lwj is a single dad and then meets wwx (b) Best modern au fics with lots of angst. Thanks!!! ~ @pastashouldbeeatenwithafork
5a.
❤️A Flower That Blooms In Adversity by thunderwear (M, 62k, wangxian, WIP, my post)
like wildflowers (we grow) by moonsteps (T, 80k, wangxian)
say it's here where our pieces fall in place by Lirelyn (E, 69k, wangxian)
plant a little happiness (let the roots run deep) by fleurdeliser (E, 48k, wangxian)
tear out the thread one by one from your skin (’til your bones feel embarrassed by all the attention) by lightningalwaysreturns (E, 41k, wangxian)
paint smears on sunny days by SnowshadowAO3 (E, 54k, wangxian)
love thy neighbor by wincechesters (M, 7k, wangxian)
No Need to Change a Tune by yeolinski (T, 10k, wangxian)
5b.
Tempo Rubato by Spodumene (E, 108, wangxian, my post)
A Sequence of Coming Outs by kippalittlefox (M, 24k, wangxian)
new york, i love you by Anonymous (T, 7k, wangxian)
leading tone by silencemostofall (G, 32, wangxian)
An Ocean Between Us by feenwitch (E, 11k, wangxian)
总有一天; a place to hide (can’t find one near) by yiqie (E, 76k, wangxian, *mind the tags!*)
me and you, always and forever by fyredancer (E, 150k, wangxian)
Momentum Deferred by DisasterBiAlert (T, 13k, wangxian, my post)
After the Final Rose by azurewaxwing (E, 55k, wangxian)
there's no promised goodbye here by Anonymous (T, 54k, wangxian)
defective requiems by Misila (M, 9k, wangxian)
❤️Common love isn't for us by feyburner (M, 8k, wangxian, my post)
twice by Misila (T, 8k, wangxian)
one good thing by Yuu_chi (T, 27k, wangxian, my post)
~*~
6. Hey! Can you rec some fics with wangxian being in cloud recesses or modern au of college?? Thanks!
I have tags for #students at cloud recesses and #college/university au
~*~
7. Would you happen to know any fics where lqr and wwx actually get along and have a good relationship? Lqr the scholar he is and wwx the inventor/genious ???? There are a lot of possibilities there. Thank you so much have a great day and stay hydrated!!!
❤️To have and to hold by Moominmammashandbag (M, 79k, wangxian, my post)
❤️to arrive late is better than not to arrive at all by Moominmammashandbag (M, 35k, wangxian, my post)
Just Say Yes by edenwolfie (M, 312k, wangxian)
Post-war baby! by like_a_bird_that_flew (E, 23k, wangxian, WIP)
Righteous at a Cost by thunderwear (G, 21k, wangxian, my bookmark)
~*~
8. Hello! I love your fic recs and the hard work you do! I've discovered so many new favourites thanks to you! [Yay!] I was wondering if you know of any fics where they're shapeshifters or some such? Animals or wing-fics or something similar? ❤
I have an official tag for #animal transformation, and on my AO3 wangxian collection (which returns more search results than tumblr) here is the search for shapeshifter, and wingfic
over forests and mountains by beechtree (T, 9k, wangxian, WIP)
~*~
9. hii do you know any fics that focus on lwj and lxc and their relation?? thanks <33
❤️Begotten by ecorie (G, 37k, wangxian, my post)
Brotherly Concern by Ibijau (G, 11k, wangxian, my post)
~*~
10. hellooo! do you know any fics where jiang cheng finds a-yuan instead of lwj? thank you for all your recs btw, they're super helpful!!! [Thank you!]
grieve the living by Misila (M, 161k, wangxian)
Overflow the autumn pools by Mhalachai (T, 74k, jiang cheng & lan wangji)
~*~
11. I love your blog! Thank you so much for all the wonderful recs! [Thank you!] I don't suppose you know of any fics where WWX is a non-human entity of some sort, but presents or is disguised as a human? (Or maybe he even thinks he is human?)
Cruise the tags mentioned above in #8, too.
❤️Spellbound by Latios (T, 37k, wangxian, my post)
When fish soar by mondengel (G, 2k, wangxian, my post)
Breathing Firestorm by ladyshadowdrake (M, 111k, wangxian)
flame and rust by cl410 (M, 29k, wangxian, WIP)
❤️The Tiger has Destroyed his Cage by updatebug (G, 55k, wangxian, my bookmark)
Magical Marriage Ribbons by starandrea (M, 376k, wangxian)
Ever Distant Shores by fuddy_duddy (rainier_day) (T, 69k wangxian, WIP)
~*~
12. Hiii do you know any fics where wwx or lwj OR wangxian leave the cultivation world/retire/grow old together away from cultivation drama? Something like And They Have Escaped The Weight of Darkness by cosmicmilktea , All that is solid melts into air by huxiyi , and that fic where post resurrection wwx just decides to not bother with dafan mountain and opens a flower shop: focal, filler, and line by bosbie.
Dan Tian / Heaven by ArchiveWriter (T, 20k, wangxian, WIP)
The Slow Regard of Silent Things by Moonpuddles (T, 3k, wangxian)
Pair of Swallows, you and I~ by Moonpuddles (T, 13k, wangxian, series in progress)
~*~
13. Hello! Do you know any fics where wangxian has some incompatibility issues/dysfunctional relationship that isnt because of canon typical one braincell wwx, but because of more structural things like their mental age gaps, how wwx will prolly hate cloud recesses after the honeymoon bliss is over etc. Generally fics that show wangxian having to work to build the relationship
~*~
14. Hi! Any wangxian onlyfans au fics? I read For a Good Time, Call by ScarlettStorm and the ongoing sequel KILF (Knits I'd Like To Fuck in) and those were so good!!! I'd like to find more similar fics!
Temptation's Mask by threerings (E, 58k, wangxian, camboy wwx)
A ghost by the light of the phone by shibrogane (E, 10k, wangxian)
~*~
15. Hey, do you have any fics where lxc doesn't like (or outright despises) wwx?
❤️to arrive late is better than not to arrive at all by Moominmammashandbag (M, 35k, wangxian, my post)
I don't like your boyfriend by lazulisong (G, 3k, wangxian, my post)
~*~
16. Do you know of any fics where the Lan Elders (unsuccessfully) try to make Lan Zhan marry someone other than Wei Ying?
Lie Open To One Another by levament (M, 41k, wangxian, WIP)
~*~
17. Hii! Do you know any fics that similar to Ardent Desires by crestre / Baby Of Mine by pupeez4eva ? I've been searching for it and want to read fics that similar to those so bad. I hope you and your followers can help me! Thankyouuu
The Trouble with Talismans: a Treatise on Time-Travel by Young Master Lan Xiaohui (Age 6) by stiltonbasket (G, 17k, wangxian, WIP)
~*~
18. Do you know any wangxian fics where either one or both of them are models/actors/musicians/famous in some way?
The Fault in Our Stars by Vamillepudding (T, 18k, wangxian, my post)
Patient came so hard from prostate exam he kicked me in the dick by Hades_the_Blingking (e, 17k, wangxian, my post)
An ocean in a drop (not a drop in the ocean) by dea_liberty (E, 10k, RPF, yizhan, my post)
how to fall in love with a catfish: a guide by wei wuxian (disaster rat) by Anonymous (T, 55k, wangxian, my post)
Make It Count by wearing_tearing (E, 47k, wangxian, my bookmark)
❤️Love wakes me by dea_liberty (e, 46k, wangxian, my post)
life, drama and action by Akai__hana (G, 13k, wangxian)
call me, beep me by myung (T, 39k, wangxian)
Rest by sassybluee (T, 115k, wangxian)
~*~
19. hello, i'm searching for a fic where wwx like... transmigrates into mdzs/cql? like i think there were a couple of them and but i can't find them for some reason?
Untitled. by c11to (M, 61k, wangxian, WIP)
#wangxian#mdzs#the untamed#wangxian fic finder#in the mood for a fic#i haven't read these unless noted#crowd-sourcing#fic finding#fic finder
223 notes
·
View notes
Text
Chapter 37
of the wwx emperor au I’m thinking of calling Fuck the Canon: Happy Endings For Everyone
Prologue | Chapter 1 | Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5 | Chapter 6 | Chapter 7 | Chapter 8 Part 1 | Chapter 8 Part 2 | Chapter 9 | Chapter 10 | Chapter 11 | Chapter 12 | Chapter 13 | Chapter 14 | Chapter 15 Part 1 | Chapter 15 Part 2 | Chapter 16 | Chapter 17 | Chapter 18 | Chapter 19 | Chapter 20 | Chapter 21 | Chapter 22 Part 1 | Chapter 22 Part 2 | Chapter 23 | Chapter 24 | Chapter 25 | Chapter 26 | Chapter 27 | Chapter 28 | Chapter 29 | Chapter 30 | Chapter 31 | Chapter 32 | Chapter 33 | Chapter 34 | Chapter 35 | Chapter 36
There is no tea.
Not only is there no tea, but the Emperor’s small private study, located just beyond his personal chambers, is distinctly lacking in any accommodations necessary to serve or consume tea.
Ordinarily, WangJi would find himself irritated, even by such a harmless deception. After five days spent in the Immortal Mountain, however, he finds that he has become more patient. Perhaps not with others, but certainly with the Emperor, whose careless attitude and playful nature seem to conceal a much more complex character, one that WangJi has grown to respect.
The Lan Sect does not listen to gossip, but their new lodgings in the Jade Sword Palace make gossip impossible to avoid. Wei WuXian had lingered by WangJi’s side long past midnight, sunrise only hours away by the time they had finally parted. Yet, great many things seem to have happened since then, each one significant enough to shake the Immortal Mountain to its roots.
Before noontime tea, the Young Master of the Jin Sect had seen his betrothal annulled, the Jiang Sect had fallen out of favor, Sect Leader Nie had been given a title, and the Council seems to hover on the verge of being dissolved.
WangJi cannot begin to guess what all of these events mean, separate or together, but he knows that Wei WuXian could not have possibly had a sufficient amount of sleep. He also knows that the world of court schemes and maneuverings, as distasteful as he finds it to be, is an inevitable reality of Wei WuXian’s existence. A part of him is even slightly curious, tentatively attempting to forge a connection between these seemingly unconnected events. Another part of him feels pity, that Wei WuXian cannot begin his day without some sort of upheaval.
Even now, standing by the desk, wrapped in the heavy, intricate layers of the Imperial dragon robes, the Emperor is all exhaustion and tension. Less than a dozen hours have passed since they had seen each other last; WangJi had spent those hours in the peace and silence of the Imperial guest chambers. Wei WuXian looks as if he had spent them on the battleground, fighting for his life.
Still, when he sees WangJi, his face tranforms.
“Lan Zhan.”
WangJi nods in response. He is not sure when he had become fond of the way Wei WuXian says his name, but he can no longer deny the inevitable elation following on its heels. Each time, his name comes with an accompanying smile, and each time, that smile is for him alone.
“I hope you were not expecting tea,” Wei WuXian says ruefully.
WangJi does not dignify that with a response. One must adjust their expectations when faced with an Emperor who runs barefoot over the rooftops, and becomes unreasonably excited over rabbits.
“Uh, right,” Wei WuXian says, “there is something I need you to see.”
The bookcase behind the desk is filled to bursting. Perhaps, if it were only used to hold books, there would be plenty of space, and little to no chaos. But Wei WuXian seems to have filled the shelves with anything that could fit, and many things that could not, creating a precarious mess of objects that could topple at the smallest disturbance. There are numerous jade figurines of all sizes, small pots, boxes and ink stones, a few odd shapes that resemble children’s toys, books and scrolls crammed in between the objects, all with no sense or order.
It is a surprise when Wei WuXian manages to pull out three books and a flat box hiding behind them, without knocking anything to the ground. WangJi realizes that he has shifted to stand on his toes, fully expecting to have to provide assistance, or perhaps even protection from any wayward object that may come flying off the shelf to cause potential injury. No such thing occurs, however, and he places his heels back down, feeling silly for his overabundance of caution.
The flat box looks plain and light. Inside, it holds a single piece of paper, although it is immediately obvious that the paper is an Imperial Order, the Emperor’s stamp bright and bold, and difficult to miss.
WangJi does not expect Wei WuXian to simply offer the paper for perusal, without ceremony, and without any hint as to what the Order holds.
He is even more confused once he realizes that the paper is actually a declaration of succession. In the event of Wei WuXian’s death, the throne is to pass to--
He blinks. The Imperial Order is not long, for there is not much to the actual succession except naming the heir. Still, WangJi reads it again, just to be certain that he has not read the name in error.
He has not.
Well.
While he is reading, Wei WuXian is fidgeting. The dragon robes are not designed for such impatient movement, and WangJi resists the urge to grab him by the shoulders, and tell him to stop plucking at the golden thread on his sleeves. The robe probably costs more than thirty villages are capable of producing in a year.
He offers the paper back.
“I do not understand.”
“Which part?” Wei WuXian says slowly, and WangJi blinks at him.
Is there more than one part to the succession? No, he has read it twice.
“I do not understand why I need to know this,” WangJi clarifies.
“Oh,” Wei WuXian says, smiling again, but it is a nervous smile, as jittery as his hands, “This-- it is important. The-- line of succession. The person I intend to marry should know that the heir has already been chosen.”
WangJi narrows his eyes. He feels as if he had missed a part of their conversation.
His mind inevitably turns to the rumors that had flown rampant in the palace that same morning; the new title granted to the Nie Sect Leader, the dissolution of the Young Master Jin’s betrothal, and the possible dissolution of the Council.
Does-- Wei WuXian mean to marry Jin ZiXuan? It is a preposterous idea. Absolutely ridiculous.
But even so, WangJi suddenly finds that Jin ZiXuan cannot be allowed to live. WangJi will challenge him to a fight, then remove each and every one of his limbs, starting with his head. This should not be difficult to accomplish.
“You are angry,” Wei WuXian says, “I should have-- perhaps I should not have begun with the line of succession. I am not good at--“ he waves his hand, as if the motion is somehow supposed to make his words less incoherent.
He looks agitated and unhappy, and WangJi wants to help, but he is not sure how.
“You want to marry,” he says, trying to establish some logical narrative.
“Yes,” Wei WuXian says, “I want to marry. And before you disagree, I am aware that five days is an extremely limited amount of time to truly get to know another person. I have already gotten a lecture about this from A-Sang. And I have already gotten a lecture from your uncle, who can be extremely rude while remaining polite, a skill I admire, but do not want to confront again. Not if I can help it. And I-- I know life in the Immortal Mountain is probably not what you had in mind if-- if you had marriage in mind. Before today. But I think-- if you are willing to give it a chance, I could make you happy. I would like to try. To make you happy.”
There is a lag in WangJi’s understanding, as each sentence needs to be rearranged in his own mind, just so he can comprehend its meaning. Still, even with the lag, it takes him an abominably long time to fully grasp what Wei WuXian is saying.
Once he does, he finds himself shocked into stillness.
“Are you--“ Wei WuXian looks as if he means to move closer, than stops himself at the last moment, “You look-- more angry now. Than before. I understand that this is not an ideal proposal, what with the-- lack of gifts and ceremony and everything else, but--“
He sighs, apparently forgetting that his hair is neatly arranged, because his fingers make a mess of it in moments.
“An offer of marriage should not make you angry, Lan Zhan. I thought we-- does the idea of it bother you that much?”
WangJi needs to speak. Wei WuXian is capable of drawing thousands of incorrect conclusions before WangJi can formulate a single sentence, and WangJi needs to prevent this from happening, as soon as possible. But what is he supposed to say?
Clarify. This is always a good strategy, especially with Wei WuXian.
“Are you asking me to marry you?” WangJi says carefully, fully expecting Wei WuXian to laugh and deny it.
He believes that he had made his peace with the fact that the Emperor really likes him, whatever that means, when coming from a Divine Ruler. But marriage is-- something else entirely.
Even saying it out loud sounds ridiculous.
“Yes!” Wei WuXian exclaims, “Yes, I am asking you to marry me.”
“Why?” WangJi blurts out, incredulous.
“Why?” Wei WuXian repeats, the dumfounded expression on his face a perfect reflection of WangJi’s own feelings, “wh-- what do you mean, why? Because I fell in love with you. Why else would I marry someone?”
“You--“ WangJi’s throat is completely dry, and seems to have shrank into nothingness.
It is difficult to breathe, let alone form words.
This is utterly ridiculous. The most ridiculous thing WangJi has even heard, seen, or experienced, in his entire life.
And yet, he wants to hear it again. He wants Wei WuXian to say it again. The rush he had felt at those words cannot be described. It is obliterating.
Wei WuXian inches closer, his posture careful, “I still cannot tell when you are just angry, or so furious that you might try and kill me, so-- do not try and kill me? I should have probably led with the declaration of love, huh? I can try again. Lan Zhan, I am in love with you. I would really like it if you would marry me, and become the Emperor Consort. Your uncle has already given permission, and the Council is about to do so as well, or Empire will no longer have a Council. The throne already has an heir, so the succession is nothing to worry about. And since I cannot imagine sharing my life with anyone else, I can swear to take no other spouse, as long as we are both alive in the world. Is that better? Did--“
WangJi does not plan to move.
He does not plan anything. The chaos of thoughts and emotions rushing through his mind can hardly be called thinking, let alone planning. Therefore, he is astonished to find himself acting so brashly. But Wei WuXian does not waste a single moment with something so banal as surprise.
His arms immediately wrap around WangJi’s shoulders, as if they belong there. There is a faint, lingering taste of pears and honey on his lips. His mouth is soft, his breaths hot and fast, his heartbeat a forceful thunder against WangJi’s chest. The exquisite texture of the Imperial dragon robe under his hands has nothing on the actual shape of Wei WuXian’s waist. WangJi can feel the ridges of his spine through the material, enticing but also fragile, and raked with barely perceptible tremors.
Wei WuXian smiles against his mouth, then laughs, his lips pressing a quick kiss to the tip of WangJi’s nose.
“Is that a yes?” he says, “Please tell me that means yes.”
WangJi is not yet capable of forming words. An extremely advantageous hindrance, because he cannot simply accept an offer of marriage, regardless of his feelings.
The bright smile on Wei WuXian’s face begins to fade, and WangJi feels panic, that he cannot explain himself quickly and succinctly, the way the situation demands.
“Lan Zhan?”
“I cannot accept,” WangJi says.
Wei WuXian blinks at him, then shifts slightly, as if to pull away. WangJi refuses to release him, his arms wrapping more securely around the silk-clad waist, fingers clutching handfuls of delicate material.
Perhaps he does so with more strength and urgency than necessary, because Wei WuXian stumbles, catching himself against WangJi’s chest.
“I want to accept,” he clarifies, “but I cannot. I must speak to uncle first.”
“Oh,” Wei WuXian says, “That-- but he-- I have already spoken to your uncle.”
“You have spoken to many people,” WangJi points out, “Everyone whose opinion you care to hear. Other than myself.”
Wei WuXian huffs, his restless fingers now plucking at the thread of WangJi’s robes instead of his own. WangJi would grab his hands to prevent it, but this would mean releasing his hold, and he does not think he is capable of doing so, at least not yet.
“I should be allowed to do the same,” WangJi says, “You must give me time.”
Wei WuXian’s fingers have now found their way to the collar of WangJi’s robes, and the brush of them against the skin of his neck is extremely distracting. The logical part of his brain insists that this is an inappropriate way to have a serious conversation. A marriage, especially one that would make him the Emperor Consort to the Divine Ruler of the Shan Empire is perhaps the most serious conversation that can possibly be conceived.
But Wei WuXian’s hair smells like pears, sweet and heavy, and he keeps biting his already reddened lip. The other part of WangJi’s brain, the one that does not care for logic or propriety, insists that he should stop speaking and kiss him again, regardless of the seriousness of the conversation.
Lan Zhan, I am in love with you.
His arms tighten of their own volition, and Wei WuXian huffs out a laugh. It is a small laugh however, and there is and nervous edge to it, carrying over into his voice.
“How much time? Because-- what if-- what if you think about it, and then-- decide that you do not want to marry me?”
“Then, I suppose you will have to marry Nie HuaiSang,” WangJi deadpans.
Wei WuXian splutters for a few moments, the expression on his face rapidly shifting from shock to displeasure to pure exasperation. Considering how many times Wei WuXian has managed to exasperate him in turn, WangJi does not feel bad.
“Do not joke,” Wei WuXian says, “I am serious. Your uncle had given permission, but he does not like me, and he will tell you all the reasons why marrying me is a terrible--“
“Wei Ying,” WangJi says, effectively cutting off the flow of words, “I want to marry you. I will not change my mind. But you must give me time.”
He is utterly unprepared for Wei WuXian’s bright smile, the warm glow of delight that washes over his face, the tiny crinkles in the corners of his eyes. He is even less prepared to be kissed again, but he is more than willing, Wei WuXian’s mouth eagerly searching for his own.
They should have spent the past five days kissing. Any moment that WangJi had not been kissing Wei WuXian now feels an unacceptable waste of time, one he has every intention to remedy. Although Wei WuXian seems as invested in this plan as he is, he cannot seem to help smiling into the kiss, his lips often darting to press to WangJi’s cheek, his chin, the side of his nose. It is sweet and silly, his restless excitement, and WangJi is now certain that Wei WuXian had been right.
He will be more than capable of making WangJi happy.
#the untamed#cql#mdzs#wangxian#ficlet#m#wwx emperor au#long chapter#could not be cut in half#tbh if i cut it in half i think some of you might come for my head#anyway#some things finally happen#and so many more need to happen omg#you remember when i was on chapter 23 or something#and i was like#10 MORE CHAPTERS#yeah#that's always a lie because I DON'T KNOW SHIT#ever#i mean right now#i'm looking at probably another 5-10 chapters so#help#ugh#thank you for all the nice messages and tags and comments#ily guys
355 notes
·
View notes
Text
Damienette arranged marriage: part 23
Credits: Miraculous Ladybug team for the elements I take from MLB show. DC for their characters, @ozmav for the AU, @maribat-archive for giving me access to so many different stories to have take inspirations from, @thyladyanput for idea for Chat Damian and me for the plot.
Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 Part 7 Part 8
Part 9 Part 10 Part 11 Part 12 Part 13 part 14 part 15
part 16 Part 17 Part 18 Part 19 Part 20 Part 21
Part 22
Damienette arranged marriage: part 23
NEXT
----------------
“[...]Coincidence? I think not!” He screamed.
“That is indeed some revelation…” Kagami started, but Tim shushed her.
“That’s not the end. I believe that Chat Noir is now working with Hawkmoth!”
---------------------
“What!?” Was the most common reaction, coupled with drawing a very sharp weapon.
“Silence!” Tim screamed. Everyone immediately calmed down, awaiting explanation or something. Instead, he just pulled out a small pocket flask and took a deep swing.
“It was coffee, wasn't it?” Damian deadpanned.
“No Demon Spawn. It was the best brandy I could steal from Jason.” He paused for a moment. “Of course it was coffee. Do I look like some barbarian to you?!”
“Just get with the story Poirot.” Chloe urged him while shifting in her place. Inside, she was wondering if Sabine would borrow her some of those weapon of hers.
“Fine. Look. It’s either that or hawkmoth is even bigger idiot than I believed him to be, which is highly unlikely. He akumatized someone who had one thing he desired. Instead of making him hand the ring immediately, he just allowed him to run free. It doesn’t make much sense.”
“Chat got possessed by akuma many times. The always just disregarded it and wanted to take advantage of his abilities to take me out.” Marinette pointed out.
“Yes, but I already established that Akumatization distorts your perception of reality. It makes you focus only on the goal and disregard things like common sense. But hawkmoth has no such thing. He could just demand of him to give the ring and then send him after you. But he didn’t. It’s either that or he was compromised after. But the fact stood that Hawkmoth had to know who Chat was even by simple fact of what he desired. And the new upgrades around the manor. They would not allow Chat Noir or Adrien to sneak out any time and he was sighted helping people around the city several times. He just doesn’t come close to Ladybug or other heroes.”
“So he makes sure people don’t suspect a thing while keeping safe distance from us, acting like he is just throwing a hissy fit about me being married.”
“Mari-san. I still can not believe the feline learned about the marriage before us.” She motioned to her and Luka.
“Sorry. I wanted to get him of me. And it was actually a good strategy to make my secret identity safe.”
Damian nodded. “That was indeed brilliant. Marinette Dupain-Cheng was not married. They would not accuse Ladybug of lies and they would not suspect a fifteen years old girl of being betrothed to anyone.”
“Yes. But if I knew that he would act like this and… betray us, I would not disregard his feelings like that.”
“Is that self-pity I hear Mari-bug?” Chloe suddenly turned to her. “I thought I told you that you are not to do that in regard to that blasted moggy.”
“Sorry Chlo.” Marinette gave her a sheepish smile. Stephanie had to hold back a chuckle.
“Fine. Carry on Dupin.” Chloe waved her hand at Tim, who shrugged at the nickname and displayed another thing. This time it was a video of final moments of Chat d’Amour. He played it whole and then paused and backed it. He played it slowly this time, commenting in real life time.
“The video has no sound recorded and magic of the miraculous makes lip-reading impossible even with strongest software available. But look closely. First, he talks with Hawkmoth through this butterfly connection. Then, the akuma is released. Now look at his expression.” Tim paused and zoomed in, sharpening the image. “He looks disappointed. Not in regretful way. It is more in the lines of ‘I agree with the judgement’. Now one could say that he just made a mistake and was ashamed. But! He runs off in the direction of Agreste Manor instead of facing Ladybug. Think why would Hawkmoth recall his precious Akuma. It was only After Jon arrived. Chat could very well fight on or change strategy. Hawkmoth never cared about casualties in his Akumas. So why suddenly care about this one? Why take the power away and make him run. Chat is fast, agile and sneaky. He could avoid Jon and just deliver the ring. The decision was pretty much worst tactical move ever. Unless! You factor the parental instincts and the fact that he could take the ring anyway. They are working together or at least know each other’s identities!” Tim proclaimed.
“Nice work Veronica. I am actually impressed.” Chloe complimented.
“Veronica?” Sabine looked funny at the mayor’s daughter. The older woman felt a bit strange sitting in there with all the kids.
“Ugh! Veronica Mars! Seriously? It’s a classic! Ridiculous! Utterly Ridiculous!” Chloe complained.
“This is just suspicion. We can’t make a move based on suspicion.” Marinette sighted.
“We can. It is enough to justify storm on Agreste Manor.”
“If we are wrong we risk complete failure. We will alert Hawkmoth about our arrival…”
“Actually…” Stephanie grinned. “We don’t need to risk anything. We know Adrien Agreste is Chat Noir. The hero who’s gone rogue. You are the guardian Ladybug. Isn’t it your job to reign him in?”
“Yes, but…” Ladybug was still unconvinced.
“We will use this as an excuse to enter the mansion. Chat lost the privilege of being a hero long ago. He is no longer helping and to be honest he was never a good helper.” Tim commented.
“Okay. If this is for the best…”
“It is sweety. Don’t cry over the milk spilled by a moggy that will end up skinned anyway.”
“Maman!”
“Fine. But I know where he lives, so he better not try anything else with you.” Sabine threatened.
“It’s decided then. The Miraculous team will enter through the front doors while the batboys and I use the commotion to sneak inside.” Stephanie beamed.
“Yes. If Chat won’t give up his ring, we will have a fight at our hands. It is possible that Hawkmoth and Mayura also get in the fight and they might drag the Gorilla into it. We must be prepared that this is when the final battle happens…” Tim kept his emotions in check by downing another hip-flask of coffee. Where does he even keep all that?
“Papa will help us on this one. And maybe we should call the cavalry from Gotham?”
“Relax Angel. We have two to one number advantage. We can deal with them.” Damian reassured her.
‘Fine. We two weeks until we leave. It is decided then. In one week, we storm the Agreste Manor.”
——————————————————————————————————–
Taglist (sorry if I missed you)@pheonixashtree @sassakitty @unabashedbookworm @vixen-uchiha @maggiecc12 @actualdisasterwoman @tired-butterfly @shizukiryuu @floralfi @imanerddealwith @northernbluetongue @krispydefendorpolice @toodaloo-kangaroo @dast218 @bluesoulblueheart @theatreandcomicfreak @disneyfoxuniverse @mindfulmagics @alwaysnumberonetruth @nyaabinch @jardimazul @lenamau @rosep16 @dramatic-squirrel @sonif50 @daminett4life @lulutheawkwardess @weird-pale-blonde-person @mooshoon @jeminiikrystal @mochegato @moonlightstar64 @dragonflyswing @silverwhiteraven @shamefullove @magic-miraculous @valeks-princess @heaven428 @mlbchaosqueen @winter-gardenflower @spicybelladonna @emo-elaine13 @vetilora @karukofox21 @my-name-is-michell @sturchling @lokiifriggasonn @redscarlet95 @melicmusicmagic @interobanginyourmom @the-fusionist @razzledazzle247 @miss-mysterys-blog @darkthunder1589 @i-is-mysterious @catthhay @the-one-woman-army @zestyzealot @dahjokester @write-for-your-life2 @mermaidreject @peachedpocky @sassakitty @dahjokester @crazylittlemunchkin @novicevoice @justafanwarrior @eliza-bitch @schrodingers25 @tired-butterfly @toodaloo-kangaroo @redscarlet95 @miukiiu @sassakitty @corabeth11 @vixen-uchiha
#arranged marriage au#maribat au#maribat#marinette x damian#maridami#guardian!marinette#order of the guardians#redeemed!chloe#evil!adrien#batman#damienette#league of assassins#miraculous lb#miraculous ladybug#Miraculous!Sabine#fanfiction#tiger miraculous#Superhero!Sabine
311 notes
·
View notes
Text
au masterlist
okay ive been meaning to do this for a while, and ive finally got the time to do it so here’s a list of all of my aus!! this is divided by ship for ease, and i do have a lot of pieces that don’t fit into any specific au - so this post is specifically for aus (this is a rly long post so im hiding it under a read more) (also please nobody comment on how similar the summaries are ive never had to think of how im summarising these aus before this post)
all my writing on tumblr // all my writing on ao3
buckytony
1. your pain (is my burden to bear) AU
Summary: soulmate AU where you can feel your soulmate’s pain, and marks that originate from your soulmate’s injuries can be found on your body
2. target and assassin AU
Summary: The Asset has been tasked with the mission of killing Antonia Stark. Falling in love with her along the way was never part of the plan.
3. park bench AU
Summary: they’re both running from their past. in New York, they find each other.
4. taste of your lips AU
Summary: TVD au. Bucky wasn’t planning to stick around in New York, just drop in long enough to fix whatever his brother had fucked up and then leave. But then he meets Toni Stark, and against all odds - he finds himself staying in the one city he’d sworn never to step foot in for all of his immortal life.
5. the second (love of his life) AU
Summary: greek gods AU, Aphrodite!Bucky x Hephaestus!Bucky . Bucky has spent over a thousand years resenting his marriage to Tony, content to ignore his husband in favour of his lover, Steve. but when he’s captured by Joann Schmidt and its Tony, not Steve who comes to his rescue - Bucky finds himself falling for the husband he spent so many years ignoring. Is it too late, or can he fix a marriage that was doomed from the start?
6. waste my time AU
Summary: Tony doesn’t do boyfriends. Tony has a boyfriend - Tiberius, or he will anyway once he convinces Ty that breaking up with him was a horrible idea. But then he meets James Barnes at a bar, and suddenly things don’t seem so black and white anymore
7. elite AU
Summary: a/b/o dynamics. Bucky isn’t planning on starting anything up in his new school, and would’ve been completely content to keep his head down until he graduates. But after a chance kiss with a bambi-eyed omega at a party in the beginning of the school year, things weren’t looking so simple anymore
8. 1000 lives (for you) AU
Summary: James hasn’t been subjected to the Chair in close to 3 years. After all, why would HYDRA use the Chair to control him when they’ve got his soulmate instead?
9. Secret Love Song AU
Summary: Marrying Steve wasn’t what Toni had in mind when she pictured the rest of her life, but it wasn’t any hardship. Of course, that was before James came into her life. (this au has been race and gender bent since the original post)
10. Dilwale AU
Summary: mafia au. Tony and Bucky used to be in love. Now they’ve sworn never to see each other again. ‘Course, MJ and Peter falling for each other puts a kink in those plans.
11. K3G AU
Summary: desi au. As a member of the illustrious Barnes dynasty, Bucky is expected to undertake certain responsibilities; chief of which is marrying someone from a respectable family. Tony Stark from Chandi Chowk might just put a wrench in those plans.
12. buckytony teen wolf AU
Summary: when Tony and Rhodey went searching for a dead body in the woods, a rogue Alpha werewolf was not what they were expecting to find. Overnight, their entire lives change
13. undercover cop AU
Summary: After the events of Afghanistan, Tony can’t bear to work at Stark Industries anymore. Handing over the reins of the company to Pepper, he quits and starts working at Midtown High. but the US government isn’t about to let one of the country’s biggest assets work at a public highschool without even the smallest bit of protection. Enter Agent Barnes, or as Tony knows him - Midtown High’s new gym teacher
14. the K2 AU
Summary: Bucky just wanted to live his life without the Army ever finding him again. Saving Tony Carbonell at a metro station and getting sucked into the intricate life of the italian mafia was never on the agenda.
15. Mara Dyer AU
Summary: fem! Bucky. Bucky was an extremely normal 16 year old girl - if you discounted the fact that her bestfriend and boyfriend died after an abandoned building collapsed on them; and that she was the only person to survive. Then bodies started dropping around her, people that she imagined dying who died in the exact grotesque way she pictured is. and suddenly, there’s nothing really normal about her at all.
16. ACOMAF AU
Summary: fem! Bucky. Bucky kills a wolf. Except its not a wolf, its a Faerie and the High Lord of the Spring Court comes collecting his pound of flesh.
17. centre of his universe AU
Summary: The Asset is fascinated by the Stark Heir.
18. one shot AU
Summary: highschool AU. nerd! tony x punk!bucky. Bucky has has a crush on Tony Stark for his entire highschool career, but he’s never thought he had a shot - choosing instead to pine uselessly while Tony dates what feels like the entire highschool body. Bucky’s resigned himself to the belief that Tony will never be his, until Tony breaks up with longtime girlfriend Rumiko Fujikawa, and suddenly - Bucky has one shot.
19. 1000 lives (for you) AU
Summary: James Buchanan Barnes and Anthony Edward Stark are impossible soulmates - separated by time, distance and space but brought together by horrible pain and suffering. This is their story. Starts from TWS, and is largely canon compliant.
stevetony
1. student of the year AU
Summary: Steve was supposed to keep his head down, get good grades and get a scholarship to a university far enough away that he wasn’t even breathing the same air as his family. But then he becomes bestfriends with Bucky, falls in love with Bucky’s boyfriend Tony - and things get a bit more complicated along the way
2. just friends(?) AU
Summary: Tony did this, thing where he fell in love with his friends. All of his friends, except maybe Steve. (too bad nobody told Steve)
3. captain americana and the heartbreak prince AU
Summary: Steve Rogers has known Tony Stark for 10 years, 4 months and 11 days. He’s been in love with him for the exact same time.
4. om shanti om AU
Summary: It should be noted, for the sake of posterity - that Steve usually wasn’t one to buy into the craze that surrounded celebrities. At the end of the day, they were still people. Tony Stark though, that was his exception.
5. stevetony lawyer AU
Summary: raising a 14 year old boy while juggling a demanding job at the DA’s office wasn’t easy, but Steve made it work. It wasn’t an easy life, but it was a good life. They were happy - and then Peter gets charged with the murder of his classmate Wade Wilson and everything falls apart. With his son facing life in prison, Steve does the only thing he can and calls the best defence lawyer he knows - his almost fiance Tony Stark.
6. schitt’s creek AU
Summary: David! Tony x Patrick! Steve
7. kidnapped! tony stark AU
Summary: Tony gets kidnapped and Steve loses his mind.
8. zindagi na milengi dobara AU
Summary: desi AU. in college, Steve, Sam and Bucky made a promise. 3 weeks, 3 activities, 3 boys and the country of Spain. 15 years later, Sam is getting married and its time for them to make good on that promise, to give him the send-off of the century. But between Sam’s conflicted feelings over his engagement, unresolved tension that threatens to break up the trio; Bucky’s secret agenda and Steve’s workaholic tendencies - it definitely promises to be a trip they’ll never forget
9. arranged marriage AU
Summary: desi AU. Steve has been in love with Tony for years. So when his mother asks him to settle down, he impulsively sends a rishta to the Stark residence; and thinks nothing of it. And then - they reply.
10. betrothed AU
Summary: Tony and Steve are princes of neighbouring kingdoms, promised to each other at birth. But the life of a royal is not as smooth as it seems.
11. the salacious bisexual life of tony stark AU
Summary: As a journalist, Steve Rogers is expected to write articles on a great many number of things. He didn’t realise that could include his ex boyfriend.
12. Civil War AU
Summary: everything’s the same except: (1) Steve and Tony are dating, (2) Steve doesn’t know Tony is Iron Man
13. stevetony lucifer AU
Summary: Tony is tired of being the Devil, tired of following Howard’s order, tired of all the bullshit that comes with divinity. Malibu isn’t great but its a refreshing change of pace, a nice break from the screaming and the pain. And then he meets Detective Steve Rogers and Malibu suddenly has a lot more to offer.
Note: this AU was started by @imposter-human and all credits for it rightfully go to her. i just piggybacked onto it and added a couple of my own thoughts, but this AU is hers.
rhodeytony
1. Dostana AU
Summary: Rhodey and Tony desperately need a new apartment, and there’s a brilliant one that’s close to where they both work. There’s only catch though, the landlord, Pepper (who is stunning) only accepts applications from couples. After a night drowning their sorrows in the local bar, they come up with the brilliant idea to pose as a gay couple for the apartment. They move in, and come up with increasingly stupid ways to impress their new landlord without exposing that their marriage is a shamNeither bestfriend likes to lose, and both of them have their eyes set on one person: Pepper (or do they?)
2. rajput tony stark AU
Summary: desi AU. Toni Stark comes from a long line of rajput royalty. (this au has been genderbent since the original post)
3. civil war rhodeytony AU
Summary: civil war scenes re-imagined with an established rhodeytony and a past stevetonyrhodey otv.
4. me and my bestfriend but make it rhodeytony
Summary: memories of me and LRP but re-imagined as Tony and Rhodey
5. meri pyaari bindu AU
Summary: To the rest of the world, he’s always be a Mr someone - but to Rhodey, he has and forever will be, his very first love, Tony.
6. doctor who AU
Summary: Doctor! Tony Stark x River Song! fem James Rhodes
7. female tony AU
Summary: Tony doesn’t like Rhodey’s new girlfriend. (he’s still trying to figure out why)
stevebuckytony
1. stephanie rogers AU
Summary: Steph Rogers was never supposed to find herself on the frontlines of World War 2. Then again, she wasn’t supposed to do a lot of things. - the mcu re-imagined with genderbent Steve. eventual stevetonybucky otv
2. on your knees AU
Summary: dom/sub AU. Tony is relearning what it means to be alive in a world where he’s not in the clutches of HYDRA, and misinterprets a scene between dom! Steve and sub! Bucky
samtonybucky
1. president tony stark AU
Summary: Tony Stark is sworn in at the 46th President of the United States. Sam Wilson and Bucky Barnes are assigned to his detail.
buckytonynat
1. the Carbonell Family AU
Summary: Anthony Carbonell is the patriarch of the Italian Mafia, Natasha and James are his bodyguards (and lovers). Steve Rogers is the FBI agent who’s vowed to bring him down.
clarktony (superiron)
1. bound by blood AU
Summary: when Clark’s parents die, Howard Stark takes him in. Desperate to recreate the serum by any means necessary he starts experimenting on both his new foster child, and his own flesh and blood son in an attempt to create the next supersoldier. Years later, Clark has broken free of Howard and is now Superman; but he and Tony are connected in ways he couldn’t even begin to understand
gen
1. morgan stark’s villain origin story AU
Summary: Morgan Stark isn’t a normal girl. It might have something to do with the death of her father.
2. blind tony stark AU
Summary: Tony loses his sight when he’s 15 after a kidnapping gone wrong.
3. desi! tony stark AU
Summary: just a link to all pieces that have desi! tony stark in them.
4. slytherin! tony stark AU
Summary: just a link to all pieces that have slytherin! tony stark in them.
5. AU-gust 2020
Summary: a masterlist to all the AUs i did for AU-gust, spanning various ships and fandoms
6. sins of the father AU
Summary: Harley has always known who his birth father is. It just never occurred to him, that his birth father might not know who his son is. im3 compliant. slightly aged up harley keener (he’s in highschool not middle school)
#my writing#au masterlist#this genuinely took ages to compile so please appreciate this#and give my aus some love#making this made me realise how many AUs that i have to update or extrapolate#some of these AUs will probably never be revisited#but who knows maybe if someone shows interest in a dead AU#i might find inspiration to add to it
72 notes
·
View notes
Text
CHAPTER 7: Vikings - Lillesøster (Little Sister)
Chapter 7 Warnings: Cheating, Angst, Deception, Slight Incest, Intrigue
Word Count: 10,457
Setting: Viking Era
Genre: Romance/Drama/Epic
Pairing: Ragnarssons x Reader, Alfred x Reader, Aethelred x Reader (No details because it would spoil the story)
Prologue Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6
Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12 Chapter 13
Chapter 14 Chapter 15 Chapter 16 Chapter 17 Chapter 18 Chapter 19
Chapter 20 Part A Chapter 20 Part B
_______________________
Though you had heard his order for you to not depart from the gardens, you wanted to get away from Alfred. You were in no mood for his hen-pecking. It was becoming clear that he was too much like his mother. Much like Princess Judith, Alfred had the need to be in control of others to the point of suffocation.
"I asked you to desist from walking away!"
"Alfred, please stop speaking to me as if I have no autonomy." You replied as you stopped momentarily and glared at him. "I am not a servant nor a captive!"
You then turned on your heels again. Needless to say, your betrothed did not like your tone. Not only that, he wasn't done questioning you about your embrace with Sir Lancille. It was one thing for you to have a close relationship with your Attendants, however, he felt you were crossing the line. Basically, Alfred felt that your behavior showed a lack of respect toward him.
"I gave you a command, did I not?" He asked with his tone becoming firmer.
You inhaled deeply, trying your best to remember what you were going through this for. This was not about you in the long run. It was about your family's legacy and your dear Mother's justice. If nothing else was accomplished in your life, justice was the one thing you would attain. As her only child and daughter, it was your duty. So if you had to swallow bitter bile in order to fulfill that goal, you were willing to do so a hundred times over.
Stopping by some large bushes, you waited patiently as Alfred approached. His thick brows were furrowed as he considered you with a stern countenance.
"Y/N, please listen to me. I find no pleasure in speaking harshly to you." He said as he pulled you to him by the waist. His expression quickly softened. "But you are far too reckless. It was entertaining when we were children but we are now adults. Do you understand what I am trying to say?"
When you did not respond, Alfred turned you to face him, his arms still snaked around your waist. You averted your eyes from his gaze, choosing instead to focus on the flowers nearby.
Confused by your silence, Alfred observed you with a worried expression. Being lost in thought however, you were oblivious to the fact that you had begun trembling like a leaf. The feeling of imprisonment you had described to Lancille was even more present now.
"What is the matter?" The Prince asked with concern as he pulled you tightly against himself. He could feel your trembling become worse, causing him great concern.
Your body felt drained of vitality as you rested against Alfred to keep from fainting. Not from illness, but from sheer anxiety. Truly, you thought you were going to vomit any moment. It was unfair to be in a position that allowed so many people to have so much control over you.
"I am fine." You managed to say.
"You are most certainly, not fine. You are trembling like a leaf."
Despite wanting to get away from Alfred, he truly was the only thing keeping your on your feet. The last time you had felt such an overwhelming sense of dread and physical illness was after your mother's interment. It took nearly a week of bed rest to recover from it that time. You hoped that you wouldn't have to be confined to a bed this time around.
"Is everything alright?" You heard Bjorn ask.
Your eldest brother was walking with Ubbe and Prince Aethelwulf. The three of them looked at you with concern as they arrived where you and Alfred were stood.
"Sister, why are you shaking like that?" Ubbe asked with concern, his eyes studying your expression.
"She was fine only moments ago and then suddenly, she seemed to take ill." Alfred replied.
Alarmed, Bjorn suggested that you forego the Training Grounds and instead return to bed. Despite your attempt to refuse his suggestion, your brothers held firm. Ubbe, to your annoyance, was the most adamant.
"You are not coming and that is final." He said, totally supporting Bjorn's suggestion.
"I think your brothers are right." Prince Aethelwulf added. "We shall have a Healer come to see you shortly. Until then, Alfred will remain with you."
You quickly realized that it was a lost cause. Moreover, any further argument from you would only result in problems for you later. The last thing you wanted was to receive a lecture from Pippa about your decorum. Not only that, you didn't want to disappoint Governess Yasmine. After all, she had been teaching you so much about Royal disposition.
Nodding you your head, you agreed to return to your chamber as everyone suggested. There were many more small battles such as this that you would lose. However, if you were patient, you would win the war in the end.
____________________
"My poor girl. You look absolutely drained." Aslaug said as she took a seat on the bed. The Queen had had been in town giving arms to the poor and had only returned. But being the protective type, she came to your side as soon as she had heard you weren't feeling well. "Can I have the kitchens prepare you anything?"
"Thank you but I am not that hungry actually. I have been drinking that watered down ale however."
Your head felt heavy upon the pillow. Almost as if you would drift off to sleep straightaway. As for Prince Alfred, he sat in a chair by your writing desk reading a letter that had been given to him earlier.
"Y/N, perhaps you should take the Queens offer. You hardly ate anything for first meal according to Pippa." The Prince suggested.
"I agree with him." Aslaug said with a smile. She then touched your forehead and appeared relived. "You are not hot to the touch so that is fortunate."
Turning to one of the two Thralls that had escorted her to your chamber, your stepmother ordered one to go to the kitchens.
"Have them make her some honeyed porridge. And perhaps they should send a pitcher of fresh milk alongside it."
The Thrall nodded and excused herself before leaving. As he finally finished the letter, Alfred glanced in your direction.
"News from home?" Aslaug asked as she studied your betrothed's expression.
"Yes. It appears they are nearly finished making the arrangements for our arrival in a weeks' time. Mother also mentioned she has selected all of the wedding garments."
"We are leaving in a week? But the nuptials are three weeks away!" You asked, sitting up. "Why should we leave so soon?"
Alfred gave you a peculiar look as if your question made no sense.
"Did you expect us to arrive on the day of the wedding? Have you forgotten that it is a four day journey to Wessex? At least in good weather." He reminded you. "Besides, we have formalities to go over with the Archbishop and Pope as well practice sessions."
You rolled your eyes and laid you head back down. The last thing you wanted to think about was the nuptials. It was a great source of anxiety and thus, you pushed it from your mind.
"I for one cannot wait to see you in your formal gown." Aslaug said as she poured herself some ale. "Your father behaves as if he is prepared to see you become a wife but I do not believe him. I dare say he will shed tears."
"I doubt it." You replied - reflecting on how quickly he promised you to Alfred.
He didn't even wait for you to return from court before doing so. What kind of father doesn't see his daughter for six years and yet is so eager to marry her off? Ragnar, that's who. It was something you found quite hurtful and compounded your resentment toward him.
"Your father loves you." Aslaug said reassuringly. "I know that he is hard to understand at times, but believe me when I say that you are the only one that can melt his heart. Your brothers cannot do such a thing."
You scoffed but made certain to let your stepmother know that it was not directed at her. You were just so tired of everyone claiming to care about you, yet forcing you to do things against your will. Patting you on the back of the hand, Aslaug assured you that things would work out.
"You and your father need to spend so time with one another. Preferably, without the boys. Then you will see that I am correct. He adores you."
"I agree." Alfred said, concurring Aslaug's statement.
Of course he agreed. Anything that sounded like orders being given by a Commander always seemed to please him. As you sat up and grabbed your chalice of watered down ale, the Healer was let in by a Thrall.
"So, I hear the King's daughter is not feeling well." The chipper and wispy woman said as she entered. She carried a large bag in her hand that appeared too heavy for her to carry. However, she was doing so with no problem. "Do not worry my Queen, I shall have her feeling better in no time. I dare say I am a better healer than Mathias who everyone is so keen on lately. I doubt that fool knows the difference between a fever and a broken leg."
"Drusilla!" Aslaug said with a laugh. "That is not very nice."
"It may not be kind, but it is certainly the truth. Mathias is an idiot and I would not mind thrashing him if I were younger."
Despite not feeling well, you couldn't help smiling at the old woman's words. She had quite the personality that dwarfed her tiny frame. Frankly, the Healer lit up the room. Of course, Alfred merely looked at her with his typical indifference. He was now stood near the foot of the bed with his hands clasped in front of him, ever serious as usual.
"And who is this handsome lad? The husband?" A cheerful Drusilla asked as she cocked her head in Alfred's direction.
"No, we are not married."
Alfred glared at you as his lips drew into a serious line. He detested how quick you were to distance yourself from him anytime you were asked. Aslaug sipped her ale quickly and shook her horn for more. She may have been a reserved Queen but, she was a very observant one. Your stepmother could read what was going on between the two of you quite easily. Promptly, one of the Thralls rushed and picked up the pitcher of ale while you finally sat up.
"Now then, my pretty girl, tell Drusilla what happened."
"Well, it all began suddenly. One moment, I was totally fine and the next, I felt weak and sick to my stomach." You explained. "I felt like I wanted to vomit, however, I did not truly feel nauseated."
Drusilla looked at you thoughtfully as you spoke while holding your hand. She placed two fingers against the veins that ran along your wrist as she continued listening to you speak. After you had explained everything you had felt while in the garden, the old Healer nodded.
"Very interesting, my dear. Could there be a little one trying to make itself known?" Drusilla asked. "After all, it only takes the one time."
Prince Alfred looked indignant at her question. To insinuate that the two of you had slept together without being wed greatly offended his sensibilities.
"Madam, with all due respect, I do not like the line of questioning." He interjected. "My intended is not with child."
"Forgive me, my Prince. It is typically the first question I ask when ladies have such symptoms."
"Well, that may be true for Heathen women, but the Princess is a Christian." Alfred replied in a calm, matter-of-fact tone. "Please remember that anytime you are treating her.
Giving him her assurance, Drusilla apologized before turning her attention back to you. After asking a few more questions and looking at your tongue, she nodded thoughtfully.
"It appears that you do not have any dire malady. You are in need of some peace and quiet however. Your pulse is weak and irregular which is a sign of high tension." She said, satisfied that you weren't sick. "I will remain for two days and make calming tonics for you."
"You mean I cannot do anything but lay here?"
"That is exactly what I mean."
You sighed but relented. Queen Aslaug stood and stated that she would have a servant show the Healer to a guest-chamber. Excusing herself to take care of duties in the Great Hall, you stepmother promised to see you later on. After everyone had departed, Alfred, being ever the attentive one, sat on the bed.
"Are you feeling any better?" He asked, taking your hand.
"Slightly."
Taking your hand to his lips, Alfred kissed your finger before holding your hand against his cheek. He was genuine in his concern regardless of how you may have perceived things. After all, you were his only true friend outside of Aethelred and Aethelwulf. Of course he had "acquaintances" due to his title but he hardly ever spoke around them. He merely listened.
But you were the one person that could actually get the Prince to loosen his tongue. Not to mention that he felt more relaxed around you than even his own mother.
"Promise you will not fall sick on me. I do not wish to go through that again." He said as he stared at you - looking worried.
It was then you finally realized that despite his behavior, Alfred was truly shaken. He had not let on earlier but now, that the two of you were alone, his eyes were full of gloom.
"Of course not. I am being honest when I say that I feel better."
Alfred let go of your hand and lay his head upon your stomach in relief. Normally, it was you that was at his bedside. The Prince had an odd reoccurring illness that would take hold of him for days, even weeks at a time. At court, you were his constant companion whenever he was bedridden. Those times never frightened Alfred because he felt his life was in the hands of God.
However, the one time that you fell ill was a very scary time for him. The fever was so severe that he was certain you would die. Everyone was. Fortunately, with the expertise of the King's Healers and fervent prayers, you pulled through. It was something the young Prince never wanted to experience again.
As you ran your hand through his dark locks, Alfred exhaled.
"I do not have anyone, Y/N. You are all I have. That is why I often hold on to you a little tighter than I should."
"But you have your mother and-------"
"That is different. You are not tied to me by blood. And you do not expect me to be perfect at all times. I am not myself when you are not near."
Alfred then raised his head to look at your expression. Leaning closer, he only stopped when your noses were touching. Without another word, Alfred buried his face in the crook of your neck, something he did often when he was upset. You went back to running your fingers through his hair.
"I understand." You replied simply.
____________________
You were awakened from your slumber by something brushing against your cheek. As your eyes adjusted to your candlelit chamber, you wondered why you felt so disoriented. That was when you remembered drinking the tonic Drusilla the Healer had made. You recalled that you had been chatting with Alfred before becoming too drowsy to stay awake.
After tucking you under the covers, he informed you that he was leaving for your father's Training Grounds and left you to rest. Now, it appeared to be evening so you knew you had slept a long time.
"Sister, are you feeling better?" Ivar's voice sounded in your ear.
You rolled onto your back to come face-to-face with your concerned brother. He placed his leather bound hand in yours and frowned.
"Do not think I have forgotten that you did not come to me at the Feast. Why are you avoiding me?"
"I am not avoiding you. I simply did not feel like being thrown out."
"Is that what you assumed I was going to do?" Ivar asked with a chuckle. "I was actually going to entertain your silliness for as long as the others allowed. Personally, I found it brave."
You smiled at his confession as you sat up.
"For the love of God, how long have I been sleeping?" You exclaimed as you looked toward the veranda. "It was early in the afternoon when I closed my eyes."
Ivar laughed at you. He then stated that you had not only slept the entire day away, but you missed practice. You sighed. It was no point even thinking about that for at least a few days. There was no way Ubbe or Bjorn would allow you to attend. As for Hvitserk, he had become worse than any parent for some reason.
And to make certain that you knew that God had a sense of humor, there came a knock upon the door. When Ivar asked who it was, it was none other than Hvitserk. Entering the chamber, your elder brother looked as if he was dressed for a night out. He came to your bedside and felt your forehead.
"Feeling better, sister?"
"Much better. Thank you."
"I hope you get back to yourself soon." Hvitserk said. "I truly want you to see how I am besting Ivar at archery."
"What rubbish! You have done no such thing. One time is hardly "besting" me at anything."
Your brothers pestered each other for a few moments more before Hvitserk announced that he had to meet someone. Ivar rolled his eyes, knowing exactly whom he spoke of. With a kiss to your forehead, your elder brother bid you both goodnight and departed.
"Who is he meeting?" You probed as soon as Hvitserk had gone.
You had a suspicion of who it could be but weren't certain. In fact, you knew all your brothers were entangled with various women, some of them being Thralls in your father's service.
"Why do you wish to know?" Ivar replied as he tapped your chin. "You are too meddlesome for your own good."
"I am not meddlesome. I am merely inquisitive."
Your brother chuckled before leaning closer. He then informed you that he would give you the information for a kiss. Your eyes studied him, feeling guilty now that your recalled kissing him previously. Though you wanted to blame the wine, the truth was, you had not been overly intoxicated. You enjoyed kissing Ivar and it made your heart race. But now, with your proper inhibitions in place, you didn't think you could do it again.
"Fine." You finally replied. However you only kissed his cheek.
Ivar visibly glared at you. He wanted a proper kiss, not the type of kiss one would give their grandmother. Tapping his lips lightly with his finger, he waited patiently for you to get the hint. After trying to change his mind for several minutes, you finally relented. You gave him a soft peck causing him to smile.
"Well, Lady curious. Since you insist on knowing about Hvitty's secret rendezvous, I will tell you." Ivar said. "It just so happens that our brother is meeting Margrethe for, activities."
"Margrethe? The Thrall?"
"She is the only Margrethe I know. Why? Do you know of another one that also lays with all of our brothers?"
Your eyes went wide. Were you truly hearing correctly? One woman bedding several men who happened to be related to one another? Curiosity got the best of you immediately. Margrethe reminded you somewhat of the Duchess everyone gossiped about at court. It had angered you even back then because she was doing no worse than the very men who loathed her.
"Thank you for entertaining my inquisitive mind. Now if you will excuse me, I am going to have my bath now. I shall see you later."
"Can I come and watch?" Ivar mischievously asked - knowing very well it would get a rise out of you.
"Ivar!" You exclaimed, utterly incensed by his request.
You threw the furs off and informed him that he needed to desist from saying such things. Finding your reaction rather amusing, he laughed at your reply. After stretching, you put the cotton robe over your nightdress and began to tie the sash around your waist.
"Are you not going to town like Hvitserk?"
"I do not know yet. Perhaps." He said as he eyed you oddly. "Why? Are you in a rush to get rid of me already?"
"Of course not. I just assumed that all men did things such at night. You know, carousing and all that."
"That is true. However, I do not know if I am in the mood to ride into town. Perhaps I will just stay and allow you to teach me how to be a proper Christian. You can teach me those strange prayers you do and that thing with your hands.
You couldn't help giggling at Ivar words. Of course you knew he was being silly but it was hilarious to even imagine it. After showing him how to do the sign of the cross, your brother scoffed.
"You would be better off worshiping our Gods. They are the only true Gods and what is more, they allow one to be free. Your Mother's God is merely a singular being, yet, he is so demanding."
"Ivar. You cannot say such things." You said as you walked past. "It is a sin to blaspheme the Father."
"The Father?" He scoffed, grabbing your hand as you made you way past. "Y/N, you live in too much fear of being judged. Look at me. I do not care what anyone thinks except for mother." Ivar added as he intertwined his fingers with yours. Staring into your eyes, he gave you a genuine look of admiration. "And you, of course."
Smiling at your brother’s confession, you squeezed his hand in a show of affection. You then gave him a kiss on his forehead before informing him yet again that you wanted to take a bath. Rolling his eyes, Ivar ignored your words and instead, laid across your bed.
"So go and do as you wish. I am not holding your legs."
"You are so………irritating."
"I know but you love me all the same" Ivar replied with a chuckle.
____________________
After you had your bath, you changed into a yellow and white cendal (woven silk) dress. It was beautiful and very ornate with intricate embellishments. Especially around the waistline where the mock corset tied neatly behind you. The bow was light yellow and was one of the reasons you selected it in the first place. As you were walking from your changing quarters into the hallway, you ran into Prince Aethelwulf.
"Good evening, your Highness. How are you doing this evening?" You greeted warmly - immediately giving him a curtsy.
The Thralls walking with you made their way past in order to give privacy. Pleased that your manners had not been affected by the long visit to Heathen lands, the Prince smiled.
"I am doing quite well, my dear." Aethelwulf said with his usual smile. "But I think I should be asking you that question."
"I am actually much better thanks to the Healer."
From his expression, you could see that your future in-law was relieved by your revelation. He then glanced at you with a hint of concern.
"I hate to seem as if I am overly concerned for my son but I am. Alfred was unable to eat this evening. When I asked why, he simply stated that he was very worried about you."
"Really?" You replied as he offered you his arm. Taking the kind gesture, you took hold of Prince Aethelwulf as the two of you began to walk together. "But Healer Drusilla assured him that I was not seriously ill. Where is he now, if I may inquire?"
"I just left him sitting in the courtyard. He said he wanted to enjoy the night air."
"Alone?"
The elder Prince nodded with some exasperation. Like you, he felt that Alfred isolated himself far too much. But what could be done? It was ingrained in his personality and it was best not to force him to change.
"I tried to convince him to come with me and a few of the men headed to town, but he declined. Perhaps you can let him know you are feeling better. If you are so inclined of course."
You agreed immediately. Though you wanted to find Ivar and challenge him to some games, you figured that could wait. After all, despite all of the things that Alfred did to irritate you, he did have a good heart.
___________________
"Alfred, why are you sitting so far away from the torches? It is far too dark over here. Come, let us go over to where it is brighter." You said as you approached. When you arrived by the bench he was sat, you realized your betrothed was in one of his gloomy moods. "Did you hear me?"
"Of course I did." He replied without glancing at you.
However, he said it in such a low tone that you barely heard him. Alfred went on to state that he was fine and that you were free to leave. His head remained down which caused his long hair to shield his face from you. He kept playing with one of the rings upon his fingers until you got tired of waiting for him to follow you. Taking a seat beside him, you brushed his dark locks behind his ear.
"Alfie, please, I am begging you. "You said, doing your best to lift his spirits. The last thing you wanted was for his melancholy to lead to him falling ill. "Do not let overthinking get the best of you."
He swallowed hard knowing you were correct. It was bad enough that he was excessively studious and often needed to be reminded to eat. But his melancholy made his already fragile health considerably worse. It was like setting a flame to a wick. Once that set in, his health always deteriorated until he was practically at death's door.
"You have not called me Alfie in a very long time." He replied in a sad tone. "At any rate, I am fine. You may go and spend time with your family."
"I am not going anywhere." You replied firmly but gently. "Now stop staring at the ground and look at me."
Gradually, he turned to face you. Even in the dimness, you could see that his eyes were welled with tears. Always kindhearted by nature, you couldn't help cupping his face with both hands. Alfred stared at you with sadness as you did so, his full lips pursed together in dejection.
"Please, let us go indoors." You tried to instruct him yet again.
"You truly want me to come with you?"
"Of course I do. Why would I ask if that was not my intention?"
You let go of his face and got to your feet. However, Alfred took you by the wrist and asked you to wait. Shyly, he asked if the two of you could just sit for a time before going indoors. Agreeing, you sat back down beside him.
"Come here." You said as you opened your arms invitingly.
Without hesitation, Alfred moved closer and melted into your embrace. He rested his head on your shoulder as you stroked his back. It was upsetting to watch him go through so much inner turmoil.
Alfred always seemed in control to everyone else but you were privy to how lost he could become. He resided in his own mind and your heart truly broke for him. He had been too mature for the other children and now, he was too intelligent for most adults. The Prince basically ran around being everything Princess Judith wanted him to be.
So-much-so, that he didn't even know who he was anymore. Alfred was more of a marionette doll than a human being at this point.
"Y/N?"
"Yes, Alfie?"
"I want you to know that you are the one thing that makes me happy."
There was nothing that needed to be said. You had always known how much he depended on you emotionally. It was apparent to you now that he was quite similar to Ivar. Both were continually at odds with their own thoughts and desires to become a great men.
It was quite ironic actually. Everyone always spoke about how life would change once you became a mother. However, you were practically one already. Ivar and Alfred may have been grown men but they shared one trait. They both looked to you for nurturing and assurance.
_____________________
After sitting outdoors for a short time, you and Alfred went to the Dining Hall to eat together. You spent most of the time watching him to make sure he was truly consuming enough. He was a picky eater so you made certain that the servants put things he liked on the table. You were determined to keep Alfred healthy, for his sanity and your own.
If Judith ever got word that he had taken ill, you knew for certain she would come to Kattegat, despite her dislike of Heathens. And that was the last thing you wanted. You could just imagine her prying into everything and hovering over both you and Alfred like a smirking demon.
"Alfred! Y/N! Good to see you two spending time together." Rollo's voice boomed as he and Ragnar entered. "Any plans for tonight?"
Your Uncle's voice was much like pleasant thunder - always grabbing the attention of anyone who heard it. He and your father both kissed your forehead before taking their seats. You sighed inwardly as Ragnar grinned at you and Alfred. He looked pleased……..a bit too pleased in your opinion.
"I see you are you feeling better." Ragnar commented.
"Yes, father. I am much better."
"Well, I do not know what the Healer gave you but it worked so well. You looked very peaceful when I came to check on you. I sat at your beside for quite some time. It reminded me of when you were a little girl." He confessed. "I wish you slept more."
Though you glared at your father, you were holding back a laugh. As for Alfred, he only smirked to himself as he drank his wine. Your Uncle Rollo of course, didn't hold back. He gave a hearty chuckle and added that it was true of most women.
"Why are you dressed so finely?" You inquired as you surveyed your father's clothing. "Are you taking the Queen out?"
Ragnar studied you, his ever twinkling blue eyes boring into your own. You may have thought you were sly in your questioning but he knew what you were driving at.
"Why do you assume that?"
"Because, she is your wife and you should spend time with her. After all, did you not have an all men's feast the other night?"
"Why ask a question that you already know the answer to? After all, you were there." Your father countered quite sarcastically. "Uninvited, might I add."
Instantly, the air was sucked out of the room. Prince Alfred and Rollo looked between you and your father as the tension rose dramatically. Not one to be shaken by your father's snide remarks, you bit your tongue. Instead of giving him any satisfaction of riling your temper, you straightened in your seat. You then gave a polite smile as you put your pomegranate down on the plate.
"I have had my fill." You said as you wiped your hand with the serviette.
Throwing it onto the table, you stood up and fixed your skirts. With great civility, you turned to Alfred and informed him that he could find you in the Sitting Hall located in the West wing. You then gave your Uncle a kiss on the cheek but walked past Ragnar who eyed you with frustration.
"Where are you off to so suddenly?" Your father asked in a mocking tone.
"You must have heard me as I spoke to Alfred but if I must elaborate, fine. I am meeting Ivar in the Sitting Hall."
"Daughter, if that is so, then why is there no kiss for me as well?"
Your steps stopped at his words. He was testing you as always - seeing how much of a Christian you truly were. Athelstan had taught Ragnar enough about how your God viewed many things. His favorite being about how children were to honor their mothers and fathers.
Turning to face your father with a false smile still plastered upon your face, you walked to over. You gave him a kiss on the cheek to prove that you were above his pettiness. By now, you had come to understand that such things were to be a regular part of your act.
Alfred was relieved that the two of you did not go further for fear of it turning into an argument. Your Uncle Rollo of course was nothing short of tickled. Unlike your betrothed, he was not easily fooled. He could see the veins in your neck and the tense manner in which you held your skirts.
With your poise intact, you departed from the Great Hall, a tad bit prouder of yourself than normal. It wasn't easy to constantly swallow your true feelings, but you were getting better at it. And if feigning civility was the means to your desired end, so be it.
_______________________
"Look who actually kept her promise for once. I was afraid you were going to break my heart again." Ivar said without glancing up from the chess board. He busied himself setting up for a game as you walked over.
"Do you have anything to eat in here?"
You had left the Dining Hall without thinking about how hungry you truly were. You had not even finished your fruits and nuts let alone the main course.
"Do I look like I go around shoving bread into my pockets?" A tickled Ivar replied. "Who do you think I am? Hvitserk?"
"Damn it to hell. I am starved."
"So, go and grab something from the Dining Hall."
"No! Father might still be there."
Ivar finally looked up from the chess board and eyed you. He knew that if you were avoiding someone, you must have a very good reason. After all, you tried your best to get along with everyone.
"What happened?"
"I do not wish----"
"Do not give me that flippant response or you will make me angry." Ivar said, cutting you off mid-sentence. "Come here."
Reluctantly, you walked to him at took a seat. Still studying your expression, your brother again asked you to tell him what had occurred. After taking a deep breath, you told him what had occurred and why you had asked Ragnar such a question in the first place.
"I know that it is not my place, after all, she is your mother. But I cannot help feeling that Queen Aslaug is not herself as she was before I went to court." You elaborated as you played with the fabric of your skirts. "There is a sadness in her eyes that I cannot describe."
Your brother's expression changed instantly as he put down the pawns. He too, apparently, had been thinking the same thing. Looking at you, he confessed that things between Aslaug and Ragnar had become worse over the years.
"You are truly observant, Y/N. I also think that father needs to show far more attention than he does." Ivar added as he took your hand. "Sometimes, I invite mother to the Training Grounds as a way of force them being in the same place. However, she always says that she does not wish to be in the way."
"Actually, that is a great idea. That would be a great way for them to at least bond over something father enjoys." You excitedly said as you perked up. "Shall I invite her then? I do not think she will say 'no' to me. And I can even offer to train her."
Ivar beamed at your words. He treasured his mother and was genuinely moved by your compassion for her.
"Do you know how much I love you?" He asked as he let go of your hand. Ivar then wrapped his arm around you, pulling onto his lap.
"What a silly question. Of course, I do. And I love you as well."
Ivar stared into your eyes as if he was trying to figure out if you truly meant it. Naturally, you found it odd and the intensity of his staring eventually made you feel uncomfortable. Trying to change the subject you decided to bring up a funny story one of your Handmaidens had told you, but Ivar interjected.
"Why are you so nervous?"
"I am not nervous."
"Yes, you are. I can tell by how your voice changed." Ivar scoffed. "And look at how you keep twirling your bracelet. Are you scared that I will kiss you again?"
Your heart raced as if you had been startled. You could feel the saliva in your mouth dry up as you tried to speak.
"Please desist from bringing that up." You whispered as you cautiously looked around.
"No. I shall bring it up as much as I like. You are behaving as if you did not like it. If I recall properly, there were many kisses each better than the first."
Refusing to hear any more about what happened "that night", you stood up. Ivar scowled as he watched you walk to the fireplace. He knew he was right but you were never going to admit it to him. You were far too stubborn to ever do such a thing. At least, for now. But if you thought you could fool him, you were sadly mistaken. Your brother knew you too well, despite your years at court.
"I am begging you to drop that matter entirely. It is wrong………….and sinful."
"If you wish." Ivar replied, his brows creasing with frustration.
Still, he wasn't overly upset with you.
After all, he knew it must have been overwhelming for someone with your beliefs to accept certain thoughts. Especially, the thought that you had enjoyed being kissed by your own half-brother.
"Come here please. I promise I will not do anything to offend you." Ivar asked in a gentle tone.
You sighed before going to him and sitting back down. With a playful smile he gave you a wink and mouthed something.
"What?" You asked with a brow raised in confusion. "I did not hear anything."
"Come closer."
"No! I am fine where I am."
Pulling your chair by the armrests, Ivar brought you as close as possible causing you to frown. He then leaned in close until his lips touched your ear.
"Do you still want to know what I said?"
"Fine. I am listening." You replied, crossing your arms as if you were bored with the conversation.
However, he didn't say anything. Instead, Ivar playfully bit your ear and then your neck. As you scooted into the backrest, he held the chair steady with both hands, trapping you.
"Stop it."
"Stop what?" Ivar asked very innocently. "I barely touched you."
"Liar."
"Brat."
Your brother kissed the length of your neck again, this time open mouthed and sensually.
"Please stop you idiot! I have had enough of you for tonight." You said with a roll of your eyes.
Ivar took his lips from your flesh before laughing at your reply. The two of you were always good at tossing insults to one another and it was no different now. Undeterred, Ivar gave you a kiss on the cheek before placing another one closer to your lips.
"Ivar stop!"
"Ivar, stop before I have to admit I like it." He mimicked with a chuckle.
Having enough of his behavior, you hauled off and punched your brother in the shoulder. It had been long since your aggressive side had shown itself but you didn't care. He was being beyond irritating. Completely undeterred, Ivar grabbed your wrists and gave you a grin that made you even angrier.
"Aw, was that supposed to do something?" He asked. "In case you are unaware, I have an affinity for pain. It is unfortunate that your blows do not hurt in the least."
"I will show you!"
You twisted your wrists and managed to slip out of Ivar's grasp. You then grabbed his wrist with both hands and began twisting the flesh in opposite directions.
"Hey! That hurts you little imp!" Ivar seethed as he yanked his arm of your grasp.
Before long, the two of you were rough playing as you if you were children again. Ivar was fast, but you held your own. For every one of his strikes, you returned it with as much force as you could muster. Eventually, you had to get out of the chair and scurry away. Ivar was holding back his full strength but his hits still hurt.
"Why are you running?" A pleased Ivar asked as he grabbed the fabric of your skirts. "You cannot retreat coward!"
"I am not a coward! I am merely rethinking my tactics."
"You surprise me sister. I did not expect you to retreat like a typical Christian!"
"Let go of my dress, cheater."
"No, it is fair game."
Ivar kept hold of your skirts until you finally conceded that he had won your playful war. Very pleased with himself, he let go of your dress. Your brother then made sure to inform you that you were getting too soft from being around Alfred's people.
"Do not allow them to change who you are. If you do not take care, you will lose yourself to them."
"That will never happen."
Despite your confidence, you brother didn't look like he believed you. He knew very well that you were facing immense pressure and tradition. Not only that, but you were exchanging vows with one of the most pious Christians he had ever met.
"Do you truly think I am becoming soft?" You asked as you sat beside Ivar again.
He smirked as he began arranging the chess pieces again. Your brother stated that you were beginning to behave like a wilting flower. He even went on to complain about you being kept in bed by the Healer.
"I was very confused. What happened to the girl who took as many scrapes and bruises like the rest of us? Are you going to allow them to treat you like a soft and whiny Saxon woman?" He asked with a great deal of disgust. "You do not need to be in bed like some sickler. What you need is fresh air and exercise."
"But the Healer-----"
"The Healer is a servant! Do you take orders or do you give them?" Ivar said as he glanced at you for a moment. "As long as you are not terribly sick why be treated as such?
You stared at your brother as you mulled over his words. It was quite true. You were only feeling poorly due to your stress level. However, you didn't feel the need to be confined to bed. Ivar was right, you were no sickler nor were you feeble.
"Admittedly, you are right. I do need to return to my normal routine. If Aethelred knew I have been neglecting my swordplay, he would be surprised."
"Aethelred?" Ivar repeated. "Is that not the sickly one's brother? You mean to tell me that he has no issue with you training."
"No. In fact, he has been my greatest rival as well as my biggest advocate."
Your brother glanced at you as you spoke. There was something in your voice that caught his interest. The manner in which you spoke of Aethelred was unlike anything he had heard before. Ivar even noticed that your smile had become wider.
"Why do you reflect on him in such a way?"
"What?"
"Do not act as if you do not know what I am saying. You like him?"
Instantly, you looked down at your hands - playing with your nails that were in need of cutting. Undeterred, Ivar reached over and took hold of your chin. After turning your head toward him, he studied your expression.
"So, it is true. You do have fondness for this Aethelred."
"Ivar please. Why must you insist on knowing everything about me? Let me have some thoughts that are my own for once."
"How can that ever be?" He asked, almost amused by your assertion. Caressing your chin in an affectionate manner, he stared at you. "Y/N, do you not understand yet? I know you better than you even know yourself. There is no way you can ever keep a secret from me even if you tried."
Your eyes finally met Ivar's intense gaze. As you sat in silence, just beholding one another, he moved closer. Without asking, he gave you a sweet kiss upon your lips.
"Sister, do you trust me?"
"Of course I do."
"Then do not keep things from me. No matter what the obstacle, you and I must stick together." Ivar said before giving you another kiss, this time much longer. "Alright?"
You nodded your head slowly as you looked into his eyes. Pleased, Ivar tapped his cheek with his finger. As you went to place a kiss upon it, he turned and caught your lips with his own. Your brother then gave you a series of pecks before pressing his forehead to yours.
"You tricked me!"
"I know." A pleased Ivar replied before brushing his nose against yours playfully.
As he contemplated giving you a passionate kiss, the door creaked loudly as it began to open. You pulled away from your brother just as Alfred entered. As soon as soon as he spotted Ivar, your betrothed greeted him graciously. Surprisingly, your brother returned his gesture in kind without any hint of disdain.
"My love, are you alright?" Alfred asked. While he stood where you were sat down, the Prince caressed your cheek. "Your father thinks you are upset with him because of how abruptly departed."
"Good! I left because he was upsetting me." You confessed.
"That does not matter." Ivar interjected. "I will be the first to admit that Ragnar is not always the easiest person to get along with. But in the end, he is still our father.
"As your brother so eloquently pointed out, you must still remember that he is your father." Alfred replied.
"Exactly. I have told Y/N before that no matter what, she must learn to respect him."
"Agreed." Alfred again concurred with a nod. He then glanced at you with vindication. "Your brother's words are wise."
You glared at Ivar who now pretended not to notice you. Instead, he busied himself arranging the chess board as Alfred took a seat across from him. The manner in which your brother had made you look like the bad person was irritating enough. But to have the two of them practically teaming up against you, was infuriating.
"You should listen to your future husband more often, Y/N." Ivar advised as he looked at you. "Heathen or Christian, men are responsible for the household."
Alfred had the hint of a smile now upon hearing your brother’s statement. He thought it to be very much in line with his own thoughts. But as far as you were concerned, if you could have slapped Ivar, you would have done so. Instead, you forced yourself to politely thank him for his words.
Sitting beside your brother in silence, you feigned a smile as bad thoughts ran through your mind. One of them being how much you would enjoy flipping the table over and challenging the two of them to a fight.
However, you sat in silence with your hands upon your lap. While you watched Alfred and Ivar match wits, you knew the time would come when you would best them both.
____________________________
In the middle of the night, you tossed in your bed as the banging on your door became louder. Finally realizing that whomever it was would not go away, you sat up. After you yelling for the person to enter, a female Thrall did so with a concerned look upon her face.
"Please forgive me your Highness, but Prince Sigurd insisted that I wake you. There is trouble."
"What trouble?"
Your heart had already started beating erratically with worry. Did something happen to one of your brothers? Ivar perhaps. He did have times where his bone illness became unbearable. However, Healer Drusilla had been controlling his pain effectively for years now. What could it possibly be?"
"It is the Queen." The Thrall whispered as she re-positioned the lantern in her hand. "She was distraught when I saw her pacing the floor of the Great Hall earlier. Not only that, but she was highly intoxicated. Naturally, I tried to usher her to bed but she refused. Instead, she insisted that she wanted to go for a walk. She then went off in the direction of the trees past the gardens. It has started raining so she will fall sick if we do not find her."
You quickly jumped out of the bed and instructed the woman to inform your brother to enter.
Within seconds, Sigurd came in with the Thrall behind him - his face wearing the signs of unease. Straightaway, you went to your brother and gave him a reassuring embrace. As you pulled away, you looked at him encouragingly.
"We shall find her, do not worry. I will wake---------"
"No sister! We cannot wake the entire household. This must be kept between a few people. Ragnar, he……….." Sigurd hesitated – his expression becoming strained. "Look, Father is not the kindest person at times. If he gets word of this, he will eventually throw it in my mother's face. He always mocks her for such things despite knowing why she behaves as she does."
"So I was right. Father went cavorting tonight." You thought to yourself.
When you asked Sigurd if Ragnar had been with women that evening, he initially averted his eyes. But then, he looked at you again. You could see that whatever sorrow Aslaug felt, he also felt it as deeply.
"Mother is very sensitive. Ragnar knows very well that when neglects her for long periods, she becomes dejected. Especially when he seems to find time for his…….acquaintances." Sigurd confessed, running a hand over his head. "It makes her feel as if she is being rejected whenever he does such things."
"Can you blame her? Your mother obviously loves Ragnar." You said with a great deal of disdain for your father. "How unfortunate for her."
Sigurd looked deeply into your eyes and nodded in agreement. Your words did not offend in the least. If anything, your brother appreciated your candid observation. He too detested Ragnar's public affairs and cavorting. Sigurd truly wished that your father could be more private with his liaisons. At least that way, his mother's feelings and dignity could be spared.
"Allow me to go and change." You said. "While I am doing so, you may wake Sir Lancille. He is not only trustworthy but a proficient tracker. If anyone will be of use, it is he."
______________________
The rain was practically hammering your little search party as the four of you made your way through the woods. Sir Lancille, yourself, Sigurd and one Christian Guard were drenched despite donning leather and fur cloaks. It was a terrible gale and the sooner you found the Queen, the better.
"She went this way." Lancille shouted over the terrible wail of the wind and downpour. "Take care! The trail slopes downward sharply."
As you all descended, Sigurd guided you cautiously - making certain to watch your footing. It was dangerous terrain but coupled with the darkness; it was made even more treacherous. Despite the covered lanterns, there wasn't too much light to work with so everyone took their time.
"Sister, take care. It is very slippery over here."
"I am." You shouted in reply.
Eventually, the two of you caught up to the others.
"There! Indentations in the mud." Lancille remarked as he pointed to some high brush. "The three of you wait here. I will fetch her."
He then handed his covered lantern to a confused Sigurd.
"Do you not need this?"
"Trust me. I can see in the dark better than an owl."
Drenched, you pulled the hood of your cloak down further in an attempt to shield yourself better. As you held onto Sigurd's arm, you hoped that Lancille would truly locate your stepmother. Though you understood he need to get away from everyone, it was time to get her home. There would be time to comfort her once she was safely back at the estate.
"There they are." The guard shouted as he lifted his covered lantern higher.
The three of you spotted Lancille carrying a passed-out Queen Aslaug in his arms. She looked extremely pale but very much alive. The one thing you hoped was that she would not fall gravely ill. After all, your stepmother was only wearing a dress with no shawl, cloak or other covering.
Sigurd rushed to Lancille's side and proceeded to light his way as the four of you began walking towards the estate. The Christian guard stayed close to your side in order to protect you whilst your brother walked ahead with your personal guard. As you mulled things over, you blamed Ragnar. He was so thoughtless at times that you wondered just how any woman could like him.
No doubt people always exclaimed that your father was handsome, but so what. Did that give him the right to treat people as he did? Your brothers may have been afraid to show him disdain but you certainly weren’t.
In your eyes, your father was quite the villain. And to be honest, his history spoke for itself. From Lagertha to your mother to Queen Aslaug, Ragnar left destruction everywhere he went.
___________________
When you made it back to the estate, two of Lancille's men let slipped everyone in through the South gateway. Thankfully, no one had been roused while you were gone and all was still quiet. Like a clandestine operation, you managed to get the Queen to her chamber with no one being the wiser. After Sir Lancille handed her over to a strong male Thrall, you glanced at him.
"You have my deepest gratitude." You said while removing your drenched cloak. Taking a cloth from one of the servants, you began drying Lancille's hair much to his surprise. "I swear, I do not know what I would do without you at times. You are like my very own guardian angel."
Your guard only looked at you with an indecipherable expression. Inwardly, he was touched by your show of kindness and affection. Outwardly however, he only nodded in acknowledgement before insisting it was merely his duty.
"And as I have always told you, I am yours to command. Always." He added before gently taking the cloth from your hands. "I better do that myself."
It wasn't that Lancille truly wanted to stop you from drying his hair. However, due to his infatuation, he didn't want to tempt himself by remaining so close.
"I echo my sister's thoughts, Sir Lancille." A thankful Sigurd said as he came and stood beside you. He then handed a chalice of warmed wine to your guard. "We are truly in your debt."
"Please, your Highness, there is no need. It was my pleasure to be of service."
"Well, if it is all the same to you, I insist on giving reward. To you it may be a duty but it does not make it any less appreciated. Tomorrow, we shall look at swords…..something special." Sigurd replied with a great smile. "And I shall not take 'no' for an answer."
"That is a wonderful idea." You chimed. "I shall come along as well."
Lancille thanked your brother before eyeing you – almost amused in a way.
With that, he bid you all a good evening and departed the Queen's chamber.
"I truly like him." Sigurd said as he took a seat by the fireplace. "He is a genuine and noble man. It is hard to find someone like him anywhere."
"I know that to be very true. Lancille is very special to me. I cannot imagine my life without him or Sir Evertte."
As Queen Aslaug was finally placed in bed by some Thralls, you and Sigurd sat by the fireplace. The two of you spoke of Ragnar and other important things that had been bothering you both.
________________________
In the morning, you were still quite groggy as people began entering your chamber. You had gone to bed perhaps only two hours or so before everyone began waking. Your Handmaidens entered full of giggles and dressed for the day. Behind them, Pippa and Governess Yasmine followed.
After greeting you, the five Handmaidens took their seats and began their usual round of gossip.
"Governess, why have you all come this morning? As I have told you before, I do not require everyone to be at my beck-and-call here in Kattegat."
"Oh, I know dear." Governess Yasmine said, taking a seat. "But Priest Grundherr believes there has not been enough communal prayer as of late. He has been complaining about everyone backsliding since arriving in Heathen lands."
"I for one agree." Pippa stated as she placed her book down. "Just because we are……..here, it does not mean we should forget who we are. Communal prayer is essential for your souls. So, once you are dressed, we shall attend service in the Sitting Hall of the North wing. Your father gave his permission to convert it."
You came close to rolling your eyes upon hearing the word "father". Needless to say, after what had occurred with your stepmother, he wasn't your favorite person at the moment.
"Fine. I shall get ready."
Despite being exhausted, you threw the furs off and slid out of bed. With a proper yawn, you stretched causing Governess Yasmine to eye you.
"Are you still tired?"
"I am very tired, however, I shall begin my day as normal. However, I most definitely will turn in early tonight."
_____________________
As you listened to Priest Grundherr giving the ending portion of the sermon, you could feel yourself slipping. It was bad enough that you had barely slept, but now, you had to fight to stay awake due to sheer boredom.
Trying your best as you sat between Prince Aethelwulf and Alfred, you glanced at the large gold cross beside the Priest. It was an ornate and expensive artifact that had been smuggled when you left Arundel. Still, your eyes were growing heavier.
"And what is more, the Holy Trinity is not mocked. No, my brethren. There is nothing that escapes the judgment of the Father, the Son and the Holy Spirit. For that reason, we must guard ourselves…….."
Priest Grundherr's voice trailed off in your ears. Taking notice of your head slumping and your eyes closing, Aethelwulf gave you a slight nudge. You instantly opened your eyes, stunned at just how quickly you had nodded of.
Glancing at your future father-in-law, you gave a discreet smile, thanking him for waking you. The last thing you needed was the Priest taking notice of you sleeping during a sermon. Knowing Grundherr, he would likely think the Devil had a hold of you.
Making eye contact with the Priest, Prince Aethelwulf furrowed his brow. It was his silent message that things needed to conclude. Clearing his throat, the clergyman asked all of you to say your prayers of contrition so he could give the Holy Communion.
As soon as you had gone and knelt at the makeshift altar, you felt relieved. If the service had gone any longer, you would have fallen asleep for sure.
As you walked back to your seat, you noticed that Pippa and Lancille were not sitting beside one another. It was odd since you knew she typically liked sitting with him at gatherings.
"Perhaps, I should ask what is going on. Then again, maybe it is not my place." You thought.
_________________________
Grateful to finally be outdoors, you stood in one of the stalls prepping a black steed that belonged to Ubbe. As you checked the saddle, your Handmaidens sat nearby watching you curiously.
"Are you certain that you do not need us to accompany you, your Highness?" One asked. "After all, we are your companions."
"I doubt you will find weaponry to your interest. But if you would like, you are all free to come and see me at the Training Grounds." You replied with a smirk. "After all, I know how much you ladies enjoy observing handsome men."
Agreeing to come and watch you practice with your brothers later on, the Handmaidens took their leave. As they departed, Prince Alfred and Aethelwulf approached.
"Why are you here in the stables? Your betrothed asked as he studied you with a curious expression. "Are you prepping that horse for yourself?
You wanted to slap yourself. How could you have forgotten to tell him about your planned excursion? Damn the lack of sleep! All you could do now was hope that the oversight didn't cause an unnecessary confrontation.
"Actually, it is. Sigurd and I are going into town with Sir Lancille."
"Is that so? And you were planning on telling me this when?"
Prince Aethelwulf winced inwardly as he looked between you and Alfred. Obviously, he could tell where things were headed. However, he held back. Since he had been advising his son about the frailties of marriage, he hoped it was working. Thus, the elder Prince decided that he would only step-in if necessary.
"I am sorry that it slipped my mind to inform you." You admitted very sincerely.
"Well, that is obvious! Did you not have the opportunity to tell me after Prayer Service?"
"I know but…….I do not know what to say." You apologetically said. "I am very tired today so I suppose that is not doing me any favors."
"Tired?" Alfred repeated with a hint of sarcasm. "That is ridiculous."
"But it is true. I did not rest more than two or three hours." You protested. "I swear."
Despite your insistence, Alfred did not appear to believe you. Fortunately, as the two of you were still going back and forth, Sigurd approached. When he arrived, he stood beside Prince Aethelwulf with a perplexed expression upon his face.
"Afternoon, your Highness." Your brother said before fixating on you and Alfred. "What is the issue with those two?"
"Apparently, my son thinks your sister intentionally forgot to mention your afternoon plans. She says it slipped her mind due to lack of sleep but……….well, you can see for yourself."
Excusing himself, Sigurd walked to you and Alfred before interrupting with a polite clearing of his throat. He then greeted the young Prince before informing him that you were indeed being honest.
"Something occurred last night so I was forced to wake Y/N." Sigurd added. "When I turned in, she was still up with my mother. Honestly, I am quite surprised that she is even up and about. I had assumed it would just be Sir Lancille and I going to town alone."
Alfred felt a touch of guilt for not believing you. The fact that you had denied yourself rest in order to care for your stepmother was honorable. After thanking Sigurd for validating things for him, your betrothed turned to you.
"Please forgive me, Y/N." He said as he took your hand in his.
"You cannot be serious! The only reason you believe me now is because my brother echoed my words." You firmly replied - staring at him in disbelief. "Why should that be the case?"
"You have a right to be upset with me. But I am truly apologetic."
"It is only because Sigurd came to my aid. Just admit it Alfred, you do not trust me."
Though you were more irate than hurt, you allowed tears to well. As Governess Yasmine had told you on numerous occasions, crying was a great weapon. Upon seeing your expression and the wetness glistening in your eyes, Alfred was filled with guilt.
He knew you were correct. No matter how hard he tried, he couldn't help being domineering. The worst part was that the he knew very well how it felt to be treated in such a way. After all, Alfred had a great deal of resentment toward his mother for doing the very same thing.
"Y/N, please, you are breaking my heart." He whispered as he stepped closer. "I was wrong for being skeptical of what you said."
You felt his delicate fingers wiping the tears that had begun gliding down your cheeks.
"Do not cry, sister. I think your betrothed is truly sorry." Sigurd commented in an attempt to comfort you.
Suddenly, you heard Ivar's voice calling your name. When you turned to look in his direction, your brother raised a brow.
"What is the matter?" He immediately asked, walking to you upon his crutch.
Ivar didn't even bother to greet or acknowledge anyone else. His focus; the entirety of it; was on you.
"It……….I was just…..upset. All is fine now." You replied.
Not appearing to believe you, Ivar took out a kerchief from his tunic pocket. Gently, he wiped your eyes as he glared at Alfred. He didn't appreciate the fact that you were upset and knew 'your Christian' had done something. Ivar had to summon all of his willpower to keep from exploding. If it was not for the delicate treaties in place, your brother would have likely grabbed your betrothed by the neck.
"Do not tell me you are fine when I can clearly see that you were moved to tears." Ivar responded as he beckoned you with his free hand.
As the two of you walked off a short distance, you reassured your temperamental brother the best you could. Despite not believing you in the least, he eventually relented.
"Fine. We shall talk about it later." He said in a lowered voice. "At least I care. I see that your favorite brother was of no help to you."
"Ivar, please stop. Why must you now shift the focus to Siggy? You know very well that I hate it when you speak ill of him."
Ivar eyed you with veiled jealously. Oh how he loathed your overt fondness for Sigurd and Bjorn. Though it had been that way ever since you met them, he had hoped things would have changed.
"Why do you always insist on standing up for him? Am I not also your brother?"
You exhaled with some exasperation. Between Ivar and Alfred, you didn't know how much more irritation you could tolerate.
"Of course you are. But I love you all the same so please, stop making me choose between you."
"You love me?"
"Of course I do. However, it does not seem like you believe me when I say it."
"Then tell me more often." Ivar replied - finally appearing pacified. "And act as if you appreciate me showing concern for you."
"Of course I appreciate it. I always have."
Ivar gazed at you with deep devotion before agreeing for the two of you to speak later on. Relieved, you informed him that you would see him at the Training Grounds as promised. While you walked back to your steed where Alfred was still awaiting you, Ivar watched.
He did not view you as a brother would a sister but as one would admire the object of their affection. As for Sigurd, he was busily chatting with Prince Aethelwulf and Sir Lancille.
As soon as you reached where Alfred was, he meekly took both your hands in his. To your surprise, he again asked for your forgiveness.
"You do know that I love you, do you not?" He asked.
"Of course I do."
"Then please do not be angry with me for long. I am trying my best."
Alfred gave you a weak smile, his eyes reflecting his fear of losing you.
"Do not fret yourself Alfie. I am not upset with you. In fact, it is already forgotten." You said much to his relief.
It was so difficult for you to describe your relationship with Alfred. No matter what occurred between you, it was never an easy task to stay angry with him. Because despite everything, you cared immensely for him. He and Aethelred were both near-and-dear to your heart.
You only wished things could have stayed as they had been. The three of you getting along and doing all manner of fun things together. Regrettably, it appeared that becoming adults had changed everything. All your social dynamics that were once enjoyable, became complicated overnight.
"May I embrace you?" Alfred asked with some apprehension.
When you replied that it would be fine, he wasted no time in pulling you into his arms. Ivar, who was now leaning against the doorway of the stable, scoffed to himself. It wasn't easy for him to watch you in the arms of the man you were soon to marry. If he had it his way, the nuptials would have been delayed due to the impending war.
Sir Lancille, only glanced at you and Alfred momentarily before turning his attention back to the conversation at hand.
Though his deep affection for you was still growing, the brooding knight had no intention of making his feelings known. But despite telling himself that your happiness was all that mattered, Lancille also did not care for your impending vows.
________________________
In his study, Sir Lancille's estranged cousin; Sir Mansfeld; and his father, Sir Peregrine, sat drinking wine. It was very late at night and they had just returned from Brackhill Palace. King Dorian had called for a special meeting of all his top Advisors and Attendants and thus they had to make themselves present. Since they lived in the neighboring city, it had been quite the journey. As the two men relaxed, one of the Head Servants entered.
"Forgive me, my Lords but this letter has been awaiting you for two days now." The man said apologetically. "I wanted to make certain to hand it to you straightway."
"A letter? From whom?" Sir Peregrine asked.
He was exhausted from the journey and wanted to see if it was worth reading or could be left for the morning.
"The herald that brought it was quite secretive. Not only did he refuse to give it to anyone that wasn't a Head Servant, he informed me that it was from a foreign Prince. He also made no qualms about the need to keep it in a private place. For that reason, it has been under lock-and-key in my chamber."
"Really?" An intrigued Mansfeld said. "Was he a foreigner or a native?"
"The accent was unquestionably foreign. Perhaps from Eire lands. Though I would like to mention that he appeared more of a mercenary than a true herald."
"So, a secretive letter from a foreign Prince." Sir Peregrine said with interest. "I wonder why one would be reaching out to me."
"Forgive me, my Lord but it is actually not addressed to you. It is for Sir Mansfeld in particular."
Both Mansfeld and his father looked even more interested than before. It truly was perplexing as to whom could be reaching out. After the letter was handed to the younger knight, he broke the wax that bore no seal and then unwrapped the twining.
Sir Peregrine patiently watched his son read the letter while sipping his wine. Raising a brow, a devious smile crossed Mansfeld’s face before he abruptly dismissed the servant. Once the man had departed, he glanced at his father.
"You will not believe who has written me."
"Who?"
"Prince Ivar."
"Is he not one of the heirs to Ragnar the Bloody Heathen?" An astonished Sir Peregrine asked. "What could he possibly want with you?"
"I had the privilege of meeting him when we went to Kattegat some time ago. Whilst the trip to negotiate with that reckless Princess failed, Ivar and I developed an understanding of sorts." Mansfeld said much to his father's surprise. "We communicated for some time after my return, but I have not heard from him in over a year. I dare say that you would like him. He is a man that thinks for himself and has his own plans. Grand ones."
"That is rather interesting."
"Indeed it is, father." Sir Mansfeld replied as he again looked at the letter in his hand.
______________________
A solemn Aethelred was busily working on letters to King Bram Leifsson and King Aella when his mother entered. Princess Judith had a letter clasped in her hand that had just arrived from a Great House. For that reason, she was feeling more excited than usual.
“What is it mother?” Aethelred asked without looking up from his papers. “I am nearly done. If it is alright with you, we can talk after I affix the seals.”
Not one to be deterred, Judith took a seat directly in front of the desk and held up the letter in her hand.
“I will return to speak to you further but I must tell you this exciting news.”
“What is it? Is that from Y/N?” Aethelred asked as he finally looked up.
He had written you several times since the two of you had parted ways in West Francia, however, he had yet to hear from you. Naturally, he had been sick with worry thinking you had forgotten all about him.
However, the reason for the lack of communication was simple. Ever vigilant in protecting Alfred’s interests, Judith had made sure to have each one of Aethelred’s letters confiscated. Even the three letters you had managed to send off without Alfred’s knowledge had also been seized.
“I am afraid this has nothing to do with your brother’s soon-to-be wife.” She replied, earning a glare from Aethelred. “It does, however, have everything to do with you.”
“Me? Who is it from?”
“Just know that it is from a great family. Furthermore, they have agreed to give one of their daughters to you in marriage.”
Aethelred put down his quill and stared at his mother for what seemed like an eternity. His jaw was so tensed that Judith nearly regretted giving the news while sitting so closely.
“Mother, I do not know whom this woman is but I shall not marry her. If even God himself has fashioned her, I refuse to be her husband.” Aethelred finally said as the shock wore off. “If I am so inclined to ever marry, I shall find my own wife.”
“Nonsense! You are a Prince and heir to the throne. You must marry, just as Alfred is doing. In fact, you shall meet your soon-to-be wife before your brother’s nuptials.”
“I will do no such thing.” An irate Aethelred said firmly. He loved you still. And if his mother thought his feelings went away because she snatched you for Alfred, she was sadly mistaken. “I may have to go along with a great many things, but I must draw a line somewhere.”
“You may be angry and you may rant, if you wish. But King Ecbert has given his blessings. He is writing for the blessings of King Charles the Bald and the Pope as we speak.”
With that Princess Judith stood from her seat. She then added that she was doing everything for Aethelred’s own good. When she left the study, he sat in silence for a long while before hurling a copper vase at the door - denting it.
Princess Judith was unaware but she was pushing her elder son’s emotions too far. If she did not take care, it would only be a matter of time before things came to a head.
_______________
TAGGED:
@twilight-loveer @laughinglikenialler @themusingofaghoticsoul
@ivarlcthbrok @anknskywlkr @bloodreadlipstick @nyx-daughterofchaos98
@gruffle1 @dangerousvikings @tephi101 @alicedopey @min-bucky
@violet-potter @tatidark @sigred @uncomfortable-writers
@potato8queen @hallowed-heathen @colie87 @captstefanbrandt
@naaladareia @tofadavidson @dudeidontaboutanything
@kawennote09 @cbouvier23 @thatsamegirl @bts5sosempire
@saladalpaca @lollyfuckindagger @artemis--wild @hanbinwrst
@zemlehyedd @ivarslittlebadgirl @readsalot73 @kylobien
@stickystatesmanstudentcloud @hecatemacbeth7 @honestsycrets
@mybloodtypeiscoffee @zuz28 @boo-youwhoreee
#ivar x reader#reader x ivar#hvitserk x reader#reader x hvitserk#bjorn x reader#reader x brjorn#sigurd x reader#reader x sigurd#ubbe x reader#reader x ubbe#ragnar x reader#reader x ragnar#king alfred x reader#reader x king alfred#prince alfred x reader#reader x prince alfred#prince aethelwulf x reader#reader x prince aethelred#prince aethelred x reader#ragnarssons x reader#ragnarssons#ragnarssons fic#viking#vikings fanfic#vikings fics#vikings fanfiction#romance fanfic#fantasy fanfic#reader x viking#jon snow faceclaim
331 notes
·
View notes
Text
Unexpected Visits
Summary: Violet is visited by Draco and Luna for her birthday
Warnings: None
Length: 1500 Words
Series: Castle of Glass
Timing: Goblet of Fire
“Pop”
Violet was sitting in the living room when Draco appeared. “Draco!” forgetting herself Violet ran up to hug him.
“Hello there, Princess.” Just then her father came into the room.
“What was that popping sound?”
“Umm. Daddy this is Draco Malfoy. My boyfriend.” Draco held out a hand and her father shook it. Her father seemed impressed.
“I’m sorry Mr. Vodrey. I over shot from the front door.” Draco was making respectful eye contact with her father and smiling pleasantly. He seemed completely different from his usual cocky self.
“Overshot?”
“He apparated daddy, disappeared over there and appeared here. It’s how wizards get around.” Violet was looking between the two men. Suddenly it occurred to her that Draco wasn’t 17 until next month, he didn’t have an Apparition license. And he shouldn’t be using magic at all, but she wouldn’t be telling her father that.
“Can you do that?” Violets father was intrigued.
“Oh, not yet. I’ll learn next year.”
“He’s older?” Violets father leaned towards overprotective.
“He’s in my year, but his parents kept him home longer, he’s about to turn 17. But I think his parents probably taught him to Apparate, they travel a lot and it’s the most convenient way to travel.”
Her father hummed and turned to Draco. “Well, Violets birthday isn’t until tomorrow.” Draco nodded
“I wasn’t sure what you had planned I just wanted to drop off her present and see her for a second.” Draco lifted the large box he was holding.
“Will your parents mind if you stay? You could stay for a while. I know Violet misses her school friends. Actually, Luna Lovegood is coming in a few hours to spend the night anyway.”
“I’m sure they wouldn’t. I’ll send an owl. Actually, I’m on my way to stay with my godfather anyway. My parents have some business to attend to over the next few weeks.” Violet knew Draco’s parents wouldn’t care if he decided to vanish from the face of the earth for a year. But if he spent the night in a muggle home?
“Well then, why don’t you stay until we get back from Cabo? My wife and I are celebrating our anniversary next week. I’d feel better knowing the girls aren’t here alone.” Violets parents tended to be very lax with her. She was always a well behaved and they were both so busy they didn’t have time to coddle or be strict, but this was surprising.
“That sounds wonderful. Are you sure I won’t be overstaying my welcome?”
“Nonsense. Violets room is up the hall.” Violet led him up the hall with his suitcase. When they reached her room, he kissed her.
“Stop, Draco… Did you Confund him?” Violet didn’t like the idea of her father being hexed by her boyfriend.
“Violet of course not. Parents tend to really like me.” Violet looked at him closely trying to see if he was lying to her. He sighed, “Violet, I’m tall, blond, well dressed, and obviously from money. I’m impressive. Also, I think your father is just happy you’re fitting in better this year. Now open your present I don’t want to wait until tomorrow.”
Violet opened it to find a new cauldron and potions supplies, including a very nice set of scales and weights. There were also some of the more useful but expensive ingredients. “Draco, you spoil me.” He smiled at her and sat on her bed.
“Of course, I do. it’s what my princess deserves.” She rolled her eyes at him and placing her hands on his shoulders kissed him deeply. “But there’s more in the box.” She smiled and found a few smaller boxes. “why don’t you open those tomorrow.” She smiled and placed them on her bedside table unopened.
“Draco you shouldn’t have Apparated here, you could have splinched, or gotten caught.” Draco smirked and cocked his head at her. She laughed. “Such a bad boy.” He looked absolutely devil may care like that.
“Such a good girl.” Draco winked at her and she kissed him again.
Violet heard her father opening the door. “Luna must be here.”
“Oh... hello, Luna is it? And my daughter didn’t mention your name sir.”
“Xenophillius, but most call me Xeno. Pleasure to meet you.” Violet wrinkled her nose at Draco and rushed out to meet Luna.
“Lu!” The two girls embraced, and Draco stood back leaning casually against a wall.
“You didn’t tell me there would be boys here Lu-Lu.” Violet could see her father and step mother looking at each other. Violet followed Xeno’s eyes to her boyfriend. He looked strapping in an all-black tee shirt and jeans look, and so much like a rebel leaned up against the wall like that, hands in his pockets.
“I didn’t know daddy. That’s Violets boyfriend though.” Xenophillius seemed satisfied with that and nodded, tipped his hat and Disapparated with a loud pop. Luna turned towards Violets parents. “I’m sorry about him. He’s not used to muggles. I’m not either really. I’ve never been in a muggle house before.”
Violets father looked curiously at the girl, she was wearing muggle clothes, but an odd assortment of them. “Muggles?”
“Non- Magic folk daddy, Luna is pureblood too.”
“Well technically I’m halfblood Vi.” Luna was looking at a clock on the wall curiously, so Violet looked to Draco.
“In order to be pureblood there are no muggles for 3 generations. The Lovegoods regularly marry muggles and muggleborns, so even though both of her parents are magical, she’s halfblood.”
“My grandfather was a muggle. If I marry another wizard like myself with no muggle parentage, my child would be pureblood. But not the same kind of pureblood as Draco.”
Violet nodded and looked at Draco. Her father interjected. “I’m sorry, muggle over here, I’m not following.”
Violet looked at him. “A lot of wizards think people like me aren’t as good as people like Luna and especially Draco, because you and mom aren’t wizards too.” Draco interjected here,
“It varies from the- very false” Draco looked at Violet “-belief that muggleborns aren’t as powerful as purebloods, to the belief that they somehow stole magic from a pureblood.”
Violet nodded at him. “Draco is very pureblood. It’s been what, 400 years since there was a muggle or muggle born in your family?”
Draco nodded. “If anyone married a muggle or muggle born they would have been disowned.”
“So how do your parents feel about you being here Draco?” Violets father was starting to put something together.
“They’ll think I’m staying with a friend. And I was planning to go on to my godfathers after dropping off Violets present.” Draco ran his hand through his hair. “They never cared about me staying with my ex’s family though. And I don’t see the difference between her and Violet.”
“Pansy was another pureblood Draco’s parents had arranged for him to marry.” Her father seemed very confused that a 16-year-old would already be betrothed. Violet turned to Draco. “How is she doing anyway Draco?”
“Transferring to Beauxbatons actually.” Violet and Luna both heaved a heavy sigh of relief. Pansy had tried to kill Violet last year and was a terrible bully to Luna.
“So Draco, you’re parents… They think this way too?” Violet grimaced she knew the question was coming when the pureblood halfblood conversation came up.
“Unfortunately, they do sir. They have no idea Violet and I are together. But, I wouldn’t let anything happen to her. And besides, she wouldn’t be the one my father killed.” Violet shuddered.
“Draco, I hate it when you say that. Your mother wouldn’t let him kill you.”
“My aunt was tortured within an inch of her life when she told my grandparents that she was going to marry a muggle born.” Draco spoke sadly. “I’ll just make sure I’m out of reach before they know. But I do regret that I’m the only heir. The Malfoy name will die out and the Manor and fortune will go to some 5th cousin of mine, a Greengrass I think. Stupid tradition really, to stop having children as soon as you have a son. 4 generations of only children.” Draco shook his head.
“Manor? Fortune?” Violets father sat down.
#Draco Malfoy#Luna Lovegood#Harry Potter#harry potter fanfiction#harry potter oc#Order of the Pheonix
1 note
·
View note
Text
BRIEF BIOGRAPHY
Clarice Orsini (ca. 1453 – 30 July 1488) was the daughter of Jacopo (Giacomo) Orsini, Lord of Monterotondo and Bracciano, and his wife and cousin Maddalena Orsini. Born in the Papal States, she is most known as the wife of Lorenzo de’ Medici (Lorenzo the Magnificent), de facto ruler of the Florentine Republic. She was the mother of Pope Leo X.
Lorenzo and Clarice were married by proxy on 7 February 1469. The marriage was arranged by Lorenzo’s mother Lucrezia Tornabuoni, who wanted her eldest son to marry a woman from a noble family, in order to enhance the social status of the Medicis. Clarice’s dowry was 6,000 florins. She arrived in Florence on 4 June 1469.
During the Pazzi Conspiracy, which was aimed at murdering Lorenzo and his younger brother Giuliano, Clarice and her children were sent to Pistoia. (The Pazzis succeeded in murdering Giuliano, but Lorenzo survived the attack, thus the conspirators’ plan to replace the Medicis as de facto rulers of Florence failed.)
Clarice returned to Rome several times to visit her relatives; she also visited Volterra, Colle Val d'Elsa, Passignano sul Trasimeno, and other places in the 1480s. On 30 July 1488 she died unexpectedly from tuberculosis in Florence. DETAILED BIOGRAPHY Born into the one of the great families of the Italian Renaissance, Clarice Orsini was the daughter of Jacopo Orsini of Monterotondo, a man whose family had made its fortune as mercenaries. Most of the Orsini men were soldiers, a profession which allowed them to amass huge territories around Rome and Naples.
Clarice and Lorenzo married 4 June 1469 with a four-day celebration. The marriage was arranged by Lorenzo's mother Lucrezia Tornabuoni, who wanted her eldest son to marry a woman from a noble family to enhance the social status of the Medicis. Clarice was a descendant of King John of England, through his daughter Eleanor, though this likely did not play a role in her betrothal. This also made her a distant cousin of Elizabeth of York, a contemporary Queen Consort of England. Their marriage was unusual for Florence at the time in that they were nearly the same age. Clarice's dowry was 6,000 florins.
The political nature of her marriage meant that she was often called upon by each side of her family to influence the other. This included Lorenzo helping her brother Rinaldo get selected as Archbishop of Florence. She was also called on by others throughout the area to support their requests to her husband. People sought her support in the easing of taxes and releasing family members from exile or prison. She would also use her network to gather information about political and military events away from where she was, including troop movements and battles.
Clarice's religious upbringing was a bit in contrast with the humanist ideals of the age popular in Florence. In contrary to her outgoing husband, Clarice was a calm woman who did not like to be the center of attention. Moreover, to live in Renaissance Florence after pious Rome was a great challenge for her. In the 15th century, Florence was the golden city of the Renaissance, full of festivals and jousts, painters, architectures, and intellectuals. It was the center of the new world away from a traditional one. But Clarice was coming from tradition itself. Nevertheless, sources and letters suggest that there was a great deal of affection and respect between her and Lorenzo.
During the Pazzi Conspiracy, which was aimed at murdering Lorenzo and his younger brother Giuliano, Clarice and her children were sent to Pistoia. (The Pazzis succeeded in murdering Giuliano, but Lorenzo survived the attack, thus the conspirators' plan to replace the Medicis as de facto rulers of Florence failed). Clarice returned to Rome several times to visit her relatives; she also visited Volterra, Colle Val d'Elsa, Passignano sul Trasimeno, and other places in the 1480s. During these visits, she was treated as a representative of her husband, an unusual role for a woman in that time and place.
On 30 July 1488 she died in Florence, and was buried two days later. Her husband was not with her when she died, nor did he attend the funeral, because he himself was very ill and was in Bad Filetta near Siena to get cured.The fact that Lorenzo was away from home when she died, affected even more his mood. Piero da Bibbiena, private chancellor of the Magnificent, wrote the following letter to the Florentine Ambassador in Rome:
“Yesterday morning at 2 pm Clarice died. If you hear Lorenzo blaming himself for not being present at the death of his wife, excuse him. It seemed necessary...that he brought water from the Villa; and no one thought that she would die so soon.”
In a letter to Pope Innocent VIII he wrote that he dearly missed his late wife. The content of Lorenzo's letter to the Pope is the following:
“The death of my dearest and sweetest wife Clarice, that recently happened to me, it is of so much damage, prejudice, and pain for infinite reasons, that it has overcome my patience and resistance to the troubles and persecutions of fate, for which I did not think that I would be so affected. And this, to be deprived of such sweet habits and companionship...made me feel, and currently makes me feel, as if I'm lost.”
Clarice and Lorenzo had ten children, three of whom died in infancy. Clarice was a devoted parent, as was Lorenzo; their letters show the sincere affection and love for their children. Their children were taught by Angelo Poliziano for a time. In 1478, he wanted to teach the children humanism, Latin, and Greek, but Clarice insisted on their lessons being more religious, and being delivered in Italian. She had also removed the family and their teacher from Florence after the scare of the Pazzi conspiracy, and he chafed under the exile. In May 1479, she tried to dismiss the tutor over another change in the curriculum, though Lorenzo continued to pay him.
Their children:
Lucrezia Maria Romola de' Medici (Florence, 4 August 1470 – 15 November 1553); married 10 September 1486 Iacopo Salviati and had 10 children, including Cardinal Giovanni Salviati, Cardinal Bernardo Salviati, Maria Salviati (mother of Cosimo I de' Medici, Grand Duke of Tuscany), and Francesca Salviati (mother of Pope Leo XI).
Twins who died after birth (March 1471). Piero di Lorenzo de' Medici (Florence, 15 February 1472 – Garigliano River, 28 December 1503), ruler of Florence after his father's death, called "the Unfortunate"
Maria Maddalena Romola de' Medici (Florence, 25 July 1473 – Rome, 2 December 1528), married 25 February 1487 Franceschetto Cybo (illegitimate son of Pope Innocent VIII) and had seven children
Contessina Beatrice de' Medici (23 September 1474 - September 1474), died young
Giovanni di Lorenzo de' Medici (Florence, 11 December 1475 – Rome, 1 December 1521), ascended to the Papacy as Pope Leo X on 9 March 1513.
Luisa Contessina Romola di Lorenzo de' Medici (Florence, 1477 – May 1488), also called Luigia, was betrothed to Giovanni de' Medici il Popolano but died young.
Contessina Antonia Romola de' Medici (Pistoia, 16 January 1478 – Rome, 29 June 1515); married 1494 Piero Ridolfi (1467 - 1525) and had five children, including Cardinal Niccolò Ridolfi. Giuliano di Lorenzo de' Medici, Duke of Nemours (Florence, 12 March 1479 – Florence, 17 March 1516), created Duke of Nemours in 1515 by King Francis I of France.
10 notes
·
View notes
Text
Divorce Lawyer South Salt Lake Utah
There can be no divorce without marriage. Both are interconnected since the beginning of civilization.
Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).
A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).
The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament. The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.
youtube
The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.
A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.
Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures. Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”
The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.
The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.
youtube
These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.
Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.
Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law. Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.
Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.
youtube
There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.
South Salt Lake Utah Divorce
With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12). Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.
There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.
Divorce Today
Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer. A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?
A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?
youtube
A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?
A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?
A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel? Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.
Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.
Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.
Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.
youtube
Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.
What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.
The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes. Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.
Divorce Legal Framework
The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.
In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.
“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.
The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.
youtube
When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.
Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.
The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.
In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.
Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.
Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.
Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is. Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.
The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.
The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination. The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.
Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.
Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”
The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.
To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.
The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.
There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.
Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.
Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.
The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare. Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.
Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.
The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.
The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.
Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates. What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).
The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.
Custody and Parental Involvement
Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.
Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.
Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ” Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.
Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.
Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.
The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.
Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.
Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.
Cohabitation and Alimony
No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.
Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement. The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.
Divorce and Alimony
In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.
Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate. The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.
Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.
Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.
Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities. Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying. If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.
Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.
Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.
South Salt Lake Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Recent Posts
Criminal Lawyer Midvale Utah
What Is The Average Cost Of An Estate Plan?
Cache County Utah
Automobile Accident Lawsuits
Can DUI Be Reduced To Reckless Driving?
Family Lawyer Herriman Utah
from Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-south-salt-lake-utah/
from Criminal Defense Lawyer West Jordan Utah https://criminaldefenselawyerwestjordanutah.wordpress.com/2020/01/18/divorce-lawyer-south-salt-lake-utah/
0 notes
Text
Divorce Lawyer South Salt Lake Utah
There can be no divorce without marriage. Both are interconnected since the beginning of civilization.
Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).
A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).
The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament. The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.
youtube
The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.
A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.
Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures. Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”
The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.
The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.
youtube
These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.
Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.
Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law. Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.
Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.
youtube
There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.
South Salt Lake Utah Divorce
With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12). Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.
There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.
Divorce Today
Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer. A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?
A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?
youtube
A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?
A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?
A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel? Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.
Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.
Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.
Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.
youtube
Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.
What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.
The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes. Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.
Divorce Legal Framework
The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.
In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.
“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.
The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.
youtube
When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.
Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.
The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.
In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.
Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.
Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.
Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is. Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.
The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.
The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination. The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.
Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.
Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”
The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.
To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.
The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.
There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.
Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.
Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.
The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare. Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.
Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.
The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.
The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.
Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates. What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).
The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.
Custody and Parental Involvement
Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.
Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.
Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ” Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.
Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.
Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.
The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.
Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.
Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.
Cohabitation and Alimony
No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.
Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement. The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.
Divorce and Alimony
In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.
Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate. The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.
Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.
Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.
Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities. Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying. If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.
Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.
Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.
South Salt Lake Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Recent Posts
Criminal Lawyer Midvale Utah
What Is The Average Cost Of An Estate Plan?
Cache County Utah
Automobile Accident Lawsuits
Can DUI Be Reduced To Reckless Driving?
Family Lawyer Herriman Utah
Source: https://www.ascentlawfirm.com/divorce-lawyer-south-salt-lake-utah/
0 notes
Text
Divorce Lawyer South Salt Lake Utah
There can be no divorce without marriage. Both are interconnected since the beginning of civilization.
Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).
A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).
The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament. The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.
youtube
The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.
A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.
Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures. Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”
The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.
The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.
youtube
These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.
Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.
Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law. Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.
Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.
youtube
There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.
South Salt Lake Utah Divorce
With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12). Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.
There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.
Divorce Today
Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer. A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?
A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?
youtube
A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?
A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?
A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel? Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.
Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.
Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.
Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.
youtube
Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.
What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.
The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes. Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.
Divorce Legal Framework
The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.
In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.
“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.
The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.
youtube
When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.
Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.
The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.
In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.
Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.
Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.
Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is. Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.
The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.
The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination. The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.
Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.
Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”
The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.
To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.
The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.
There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.
Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.
Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.
The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare. Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.
Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.
The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.
The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.
Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates. What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).
The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.
Custody and Parental Involvement
Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.
Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.
Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ” Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.
Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.
Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.
The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.
Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.
Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.
Cohabitation and Alimony
No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.
Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement. The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.
Divorce and Alimony
In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.
Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate. The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.
Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.
Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.
Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities. Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying. If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.
Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.
Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.
South Salt Lake Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Recent Posts
Criminal Lawyer Midvale Utah
What Is The Average Cost Of An Estate Plan?
Cache County Utah
Automobile Accident Lawsuits
Can DUI Be Reduced To Reckless Driving?
Family Lawyer Herriman Utah
from Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-south-salt-lake-utah/ from Divorce Lawyer Nelson Farms Utah https://divorcelawyernelsonfarmsutah.tumblr.com/post/190318149425
0 notes
Text
Divorce Lawyer South Salt Lake Utah
There can be no divorce without marriage. Both are interconnected since the beginning of civilization.
Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).
A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).
The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament. The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.
youtube
The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.
A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.
Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures. Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”
The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.
The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.
youtube
These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.
Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.
Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law. Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.
Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.
youtube
There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.
South Salt Lake Utah Divorce
With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12). Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.
There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.
Divorce Today
Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer. A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?
A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?
youtube
A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?
A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?
A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel? Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.
Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.
Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.
Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.
youtube
Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.
What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.
The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes. Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.
Divorce Legal Framework
The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.
In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.
“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.
The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.
youtube
When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.
Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.
The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.
In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.
Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.
Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.
Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is. Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.
The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.
The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination. The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.
Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.
Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”
The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.
To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.
The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.
There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.
Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.
Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.
The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare. Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.
Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.
The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.
The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.
Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates. What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).
The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.
Custody and Parental Involvement
Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.
Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.
Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ” Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.
Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.
Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.
The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.
Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.
Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.
Cohabitation and Alimony
No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.
Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement. The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.
Divorce and Alimony
In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.
Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate. The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.
Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.
Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.
Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities. Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying. If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.
Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.
Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.
South Salt Lake Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Recent Posts
Criminal Lawyer Midvale Utah
What Is The Average Cost Of An Estate Plan?
Cache County Utah
Automobile Accident Lawsuits
Can DUI Be Reduced To Reckless Driving?
Family Lawyer Herriman Utah
from Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-south-salt-lake-utah/
0 notes
Text
Divorce Lawyer South Salt Lake Utah
There can be no divorce without marriage. Both are interconnected since the beginning of civilization.
Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).
A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).
The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament. The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.
The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.
A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.
Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures. Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”
The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.
The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.
These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.
Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.
Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law. Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.
Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.
There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.
South Salt Lake Utah Divorce
With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12). Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.
There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.
Divorce Today
Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer. A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?
A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?
A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?
A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?
A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel? Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.
Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.
Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.
Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.
Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.
What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.
The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes. Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.
Divorce Legal Framework
The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.
In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.
“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.
The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.
When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.
Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.
The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.
In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.
Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.
Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.
Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is. Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.
The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.
The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination. The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.
Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.
Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”
The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.
To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.
The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.
There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.
Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.
Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.
The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare. Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.
Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.
The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.
The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.
Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates. What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).
The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.
Custody and Parental Involvement
Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.
Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.
Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ” Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.
Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.
Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.
The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.
Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.
Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.
Cohabitation and Alimony
No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.
Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement. The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.
Divorce and Alimony
In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.
Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate. The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.
Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.
Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.
Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities. Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying. If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.
Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.
Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.
South Salt Lake Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Recent Posts
Criminal Lawyer Midvale Utah
What Is The Average Cost Of An Estate Plan?
Cache County Utah
Automobile Accident Lawsuits
Can DUI Be Reduced To Reckless Driving?
Family Lawyer Herriman Utah
from https://www.ascentlawfirm.com/divorce-lawyer-south-salt-lake-utah/
from Criminal Defense Lawyer West Jordan Utah - Blog http://criminaldefenselawyerwestjordanutah.weebly.com/blog/divorce-lawyer-south-salt-lake-utah
0 notes
Text
Divorce Lawyer South Salt Lake Utah
There can be no divorce without marriage. Both are interconnected since the beginning of civilization.
Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).
A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).
The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament. The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.
youtube
The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.
A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.
Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures. Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”
The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.
The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.
youtube
These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.
Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.
Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law. Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.
Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.
youtube
There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.
South Salt Lake Utah Divorce
With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12). Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.
There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.
Divorce Today
Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer. A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?
A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?
youtube
A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?
A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?
A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel? Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.
Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.
Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.
Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.
youtube
Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.
What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.
The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes. Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.
Divorce Legal Framework
The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.
In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.
“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.
The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.
youtube
When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.
Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.
The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.
In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.
Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.
Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.
Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is. Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.
The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.
The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination. The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.
Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.
Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”
The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.
To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.
The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.
There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.
Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.
Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.
The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare. Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.
Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.
The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.
The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.
Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates. What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).
The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.
Custody and Parental Involvement
Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.
Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.
Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ” Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.
Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.
Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.
The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.
Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.
Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.
Cohabitation and Alimony
No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.
Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement. The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.
Divorce and Alimony
In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.
Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate. The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.
Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.
Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.
Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities. Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying. If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.
Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.
Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.
South Salt Lake Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Recent Posts
Criminal Lawyer Midvale Utah
What Is The Average Cost Of An Estate Plan?
Cache County Utah
Automobile Accident Lawsuits
Can DUI Be Reduced To Reckless Driving?
Family Lawyer Herriman Utah
Source: https://www.ascentlawfirm.com/divorce-lawyer-south-salt-lake-utah/
0 notes
Text
Divorce Lawyer South Salt Lake Utah
There can be no divorce without marriage. Both are interconnected since the beginning of civilization.
Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).
A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).
The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament. The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.
youtube
The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.
A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.
Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures. Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”
The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.
The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.
youtube
These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.
Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.
Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law. Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.
Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.
youtube
There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.
South Salt Lake Utah Divorce
With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12). Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.
There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.
Divorce Today
Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer. A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?
A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?
youtube
A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?
A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?
A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel? Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.
Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.
Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.
Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.
youtube
Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.
What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.
The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes. Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.
Divorce Legal Framework
The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.
In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.
“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.
The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.
youtube
When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.
Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.
The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.
In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.
Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.
Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.
Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is. Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.
The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.
The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination. The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.
Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.
Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”
The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.
To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.
The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.
There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.
Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.
Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.
The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare. Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.
Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.
The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.
The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.
Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates. What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).
The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.
Custody and Parental Involvement
Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.
Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.
Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ” Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.
Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.
Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.
The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.
Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.
Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.
Cohabitation and Alimony
No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.
Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement. The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.
Divorce and Alimony
In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.
Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate. The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.
Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.
Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.
Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities. Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying. If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.
Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.
Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.
South Salt Lake Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Recent Posts
Criminal Lawyer Midvale Utah
What Is The Average Cost Of An Estate Plan?
Cache County Utah
Automobile Accident Lawsuits
Can DUI Be Reduced To Reckless Driving?
Family Lawyer Herriman Utah
Source: https://www.ascentlawfirm.com/divorce-lawyer-south-salt-lake-utah/
0 notes
Text
Divorce Lawyer South Salt Lake Utah
There can be no divorce without marriage. Both are interconnected since the beginning of civilization.
Marriage is called a “covenant” throughout the Pentateuch and the rest of the Old Testament.1 Proverbs 2:17 speaks about the adulterous wife who “ignored the covenant made before God,” and Malachi says that one of the witnesses of any “marriage covenant” is God himself (2:14). Ezekiel employs a vivid picture of God marrying the nation of Judah, in which he frequently referred to their marriage covenant (Ezek. 16:8, 59-62). He describes in intimate and overtly sexual language how God entered into marriage, including the ceremony at which he said: “I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you” (Ezek. 16:8).
A marriage covenant is also referred to in many of the passages that speak about a covenant with God. The word “covenant” may mean a “marriage covenant” or a “treaty covenant,” and often in these passages it means both. The marriage covenant of God with his people is, at times, almost synonymous with his treaty covenant with them. For example, the comment “I will remember my covenant with you in the days of your youth, and I will establish with you an everlasting covenant,” which occurs in the description of God’s marriage to Israel (Ezek. 16:60), sounds very similar to Ezekiel 37:26, which speaks about the treaty covenant of God with his people. A similar mixture of these two ideas occurs in Jeremiah 31:31-32, where the new everlasting covenant is compared with “my covenant which they broke, though I was their husband.” These two concepts are sometimes mixed deliberately in order to draw out comparisons. For example, Jeremiah 11:10 appears to refer to a treaty covenant (“they have broken the covenant that I made with their ancestors”) but later verses contain references to Israel as a wayward wife (Jer. 11:15, “What right has my beloved in my house, when she has done vile deeds?”).
The phrase “marriage covenant” was the constant and normative phrase used to describe the legal framework of marriage in the Old Testament and in its surrounding cultures. Marriage covenants in the rest of the ancient Near East help us to understand the meaning of this phrase in the Old Testament. The term “covenant” has a wide range of meaning in the ancient Near East, from a business agreement concerning a loan through to a national treaty with a foreign power or with a god. The primary meaning of “covenant” was an agreement between two parties that was mutually binding. Covenants could be made, kept, and broken. Covenants were implemented by document or by a ceremony. They had stipulation agreed to by both parties, and sanctions that came into force when a stipulation was broken.
youtube
The legal basis of marriage was called a “covenant” because, like all other types of covenant, it was an agreement between two parties that contained stipulations and sanctions. A marriage covenant, like any other covenant, included details of payment, the agreement to stipulations by two parties, a set of penalties for the party who did not keep these stipulations, and a legally binding witnessed ceremony or document that recorded all these matters.
A marriage covenant in the Old Testament was like all other ancient Near Eastern covenants. The Old Testament refers to the payments involved, the stipulations of the agreement, and the penalties that ensued if these stipulations were not kept. The Old Testament also uses the same legal language for all these aspects of a marriage covenant as found in other ancient Near Eastern marriage covenants.
Payment varied in different cultures and at different times throughout the time period covered by the Old Testament. The Old Babylonian culture had various payments. The terhatu or “bride-price,” which sealed the betrothal, was paid by the groom to the bride’s father. This averaged 10 shekels, or about 10 months wages. The sheriqtu or “dowry” was paid by the bride’s father to the bride. The Jewish equivalent of the terhatu was called the mohar. The husband also gave the bride gifts (Gen. 24:22). The Jewish equivalent of the sheriqtu was known as the nedunyah. scheme in the city states of Old Babylon and in other ancient Near Eastern cultures. Even the gods were not immune from making such payments. When Ugaritic gods took wives, they paid a very high bride-price in keeping with their exalted status. Yahweh also paid an especially high bride-price when he married Israel. However, Yahweh was pictured as paying the bride-price in a currency that was much more valuable than gold: he paid with “righteousness and justice.”
The purpose of these payments was to give security to the marriage, as well as being the legal seal on the marriage covenant. In some senses the covenant appears to be a sale, in which the groom buys his bride from her father. However, it was understood that the father would give a dowry well in excess of the bride-price, so that the net payment was made by the bride’s father to the groom. The dowry could be regarded as equivalent to the daughter’s share of the family estate, held in trust for her by her husband. In effect, therefore, the payment by the bride’s father helped the couple to establish their home.
The dowry also gave personal security to the bride. The dowry continued to belong to the bride, so if her husband died or divorced her, she had money to live on. She might also get a portion of the estate in addition to her dowry. The only exception to this was when the wife caused the divorce. In some arrangements the wife would get only half the dowry in this case, though usually she lost all rights to the dowry.
youtube
These payments also added security to the marriage itself. The bride price, which was paid by the groom to the bride’s father, represented many months wages. This helped to ensure that marriage was not entered into lightly. The whole system of payments was weighted against divorce, because whoever caused the divorce was penalized financially. If the husband divorced his wife without cause, he usually returned the dowry, and if the wife divorced her husband without cause, she lost her right to some or all of her dowry. However, if the divorce was caused by one partner breaking a stipulation in the marriage contract, the guilty partner was deemed to have caused the divorce and the innocent partner kept the dowry. For example, the seventeenth century B.C.E. Babylonian high priest Enlil tried to escape the repayment of this dowry by accusing his wife of disloyalty, but his charges were found to be false.
Deuteronomy 24:1-4 is an example of these payments and penalties in action. This passage is an item of case law28 about a man who wanted to remarry a wife whom he had divorced, and who had been married again in the meantime. The ruling states that she would now be unclean for him. The reason for this ruling can be traced to the financial payments and penalties involved in marriage and divorce. The main difference between these two marriages was the financial consequence for the woman. The first marriage ended when the man cited a valid ground for divorce, namely “a matter of indecency.” The fact that he had a valid ground for the divorce meant that she lost her right to her dowry. The second marriage ended without any valid grounds for divorce, either because the man “hated/disliked” her (which was a technical term for a groundless divorce), or because he died. In either case the woman would have kept her dowry. If she had not brought a dowry into this second marriage, she would nevertheless have been awarded an equivalent amount. Westbrook thus noted that this would give the first husband a financial motive for remarrying his wife, because he would then have both her new dowry and her old one. This law therefore forbids the first husband from getting financial benefit in this way.
Marriage covenants in the ancient Near East were written and enacted exactly like any other business or diplomatic covenant. Like any other agreement, they were based on both trust and penalties. The penalties as well as the benefits of keeping the stipulations of the marriage covenant were clearly outlined. There was a recognized system of financial penalties for the partner who initiated divorce without good cause, or for the partner who broke the stipulations of the covenant. The terminology of marriage documents is also similar in all respects to other business transactions. This is all reflected in the Old Testament language and law. Although the phrase “marriage covenant” is correct, it is misleading. Marriage “covenant” has come to mean something separate from legal restraints. The phrase “marriage contract” is therefore much better than “marriage covenant” for conveying the correct meaning in modern English. This is the normal phrase used by Jewish scholars when referring to legal marriage documents, and also by ancient historians when referring to ancient Near Eastern marriage law.
Like any other contract, the ancient Near Eastern marriage contract was an agreement between two parties that also defined the penalties incurred by the party who failed to keep the agreement.
youtube
There is a general understanding throughout the ancient Near East that a wife can be divorced at will by a husband and have her dowry returned, but, if she has done wrong, she does not receive her dowry. There is also some evidence that wives were able to divorce their husbands in some situations.
South Salt Lake Utah Divorce
With the hindsight of the New Testament, Genesis 2:24 might also be interpreted as a condemnation of divorce. The rest of the Pentateuch, however, fails to speak against divorce. Abraham divorced his wife Hagar, the slave, and it is recorded as if God approved (Gen. 21:12). Specific guidelines were given about the practice of divorce. In Exodus 21:10-11 there is the requirement in the divorce of a wife who is a slave that she must be released without any payment. Presumably this means that she did not have to buy her freedom, though it may also mean that the man did not have to pay her the equivalent of a dowry. Any other wife would be released with the repayment of her dowry, but a slave brought no dowry. Other guidelines are given about divorces in general in Deuteronomy 24:1-4: a divorced wife must be given a divorce certificate, and she must leave the marital home. Grounds for which divorce was accepted are also given in these passages. Indecency (whatever that meant) is named in Deuteronomy 24:1, and the neglect of basic provisions is implied in Exodus 21:10-11.10 The fact that the husband in Deuteronomy 22:13-18 tried to find false grounds for divorce suggests that a groundless divorce was either not permitted or resulted in severe financial penalty.
There is much more about divorce that is not stated. There is nothing about whether these were the only grounds for divorce, or whether or when the wife should have her dowry returned. There is nothing about the rights of children to their father’s estate. There is nothing about the rights of the woman after she is divorced, whether she is allowed to remarry, or where she should live after her divorce. There is no indication of the procedures for divorce, such as witnesses or other legal necessities.
Divorce Today
Divorce is not synonymous with marriage breakdown. It is, on the contrary, merely the legal recognition of the fact that the marriage relation ended at some time in the past. A divorce cannot be secured unless and until this fact has been established. Many married persons have terminated their marital relations in fact but have felt content to live apart without obtaining a divorce. Everyone knows of married couples not living together and with no present intention of being divorced. They may have shunned the divorce court because of the trouble or expense involved, because of moral scruples, or for fear of incurring social disapproval. People often are timid about advertising their domestic troubles to their friends and acquaintances for social or business reasons and hence avoid the publicity, not to say scandal, sometimes involved in divorce procedure. The public submission of the type of evidence necessary to secure divorce often serves as a deterrent with persons of sensitive nature. If you are considering divorce, speak to an experienced South Salt Lake Utah divorce lawyer. A prospective divorce client appears in a divorce lawyer’s office for an initial consultation. She has a sad story of domestic violence and a clear need for legal assistance, but only a limited capacity to pay for that service. Does the lawyer agree to represent this client, knowing that she may have to reduce or even waive her usual fees?
A divorce client frequently tries to use his meetings with his divorce lawyer to unburden himself about his unhappiness over his divorce and the direction his life is taking. Does the divorce lawyer listen to the client and offer him emotional support, or does he insist that the consultations focus on the client’s legal case?
youtube
A divorce client refuses to consider a negotiated agreement and demands that her lawyer fight her case in court as a way of punishing her husband. Does the divorce lawyer pursue the client’s demands in court, or does she try to persuade the client to rethink her goals and expectations for the divorce in order to reach a settlement?
A divorce lawyer is preparing for settlement talks with an opposing attorney with whom he has never negotiated before. Does the lawyer significantly inflate his opening demands, or does he make a more modest proposal that he considers fair and reasonable?
A divorce lawyer has a client who wishes to talk directly with her spouse about the terms of their settlement. Does the lawyer permit her client to take part in fashioning an agreement, or does she insist that all negotiations be strictly between herself and the opposing counsel? Decisions such as these lie at the heart of lawyers’ day-to-day work. Whether they are made reflectively or reflexively, such choices underline the substantial discretion that results from the indeterminacy of attorneys’ professional roles. Ultimately, legal practice is constituted out of these many small judgments. How do lawyers think about and actually make these decisions? What guidelines and standards do lawyers use in deciding how to relate to clients and to opposing attorneys; about when, how, and with whom to negotiate; and about how at the end of the day to evaluate their own work? Do the answers to these questions flow more or less automatically from the lawyer’s formal training and expertise? To what degree do they reflect the lawyer’s own self-interest, the particular interests of the client, or the broader public interest? Such questions lie at the heart of discussions among scholars and bar leaders about the meaning of professionalism.
Simply put, the debate over legal professionalism revolves around the degree to which general professional identities, formal training, and rules of conduct guide the choices of individual lawyers in practice.
Professional bar rhetoric suggests that the most powerful influences on lawyers’ decisions come from law school socialization and formal codes of professional responsibility, which promote and enforce shared expertise, norms, and obligations. An alternative perspective points to economic incentives as the crucial determinants of lawyers’ conduct. That is, through their conditions of work, lawyers’ choices, like those of many professionals, are shaped by their own material interests or those of their employers or clients, even though they may be rationalized by reference to professional norms. Yet a third perspective emphasizes the role of personal identities and values in lawyers’ decision making. In this view, lawyers’ individual values or personal characteristics such as gender, race, religion, or class influence their professional conduct.
Each of these viewpoints yields a different explanation for the choices lawyers make in their daily work lives. Consider, for example, the attorney who is trying to decide whether or not to represent a poor client. If the lawyer agrees to accept the case, the professionalism account might suggest that she has internalized the legal profession’s norm of public service and feels obliged to help those who cannot afford a lawyer. However, the workplace version might see a struggling sole practitioner who cannot afford to pass up even the possibility of a modest fee. Alternatively, the personal identity perspective might attribute the lawyer’s decision to take the case to the fact that as a woman, the lawyer empathizes with the abused wife and seeks to use her legal skills to help women in difficult situations.
youtube
Similarly, if the lawyer decides against representing the client, it might be because, having already achieved the American Bar Association’s target pro bono work for the year, she feels that she has done her professional duty. Or perhaps the attorney rejects the case because as a junior law firm associate, she is under considerable workplace pressure from firm partners to meet her annual quota of billable hours. Or it may be that she is tired of doing divorce work and does not want to be stereotyped as the advocate for all women.
What about the situation in which a divorce client badly wants and needs help in sorting out his personal life? How should the lawyer respond? Perhaps he declines to provide such assistance because he believes his legal training did not prepare him to be a therapist, and that it would be unethical for him to pretend to do so. Or maybe it is because in his low-cost, high-volume practice, the lawyer simply cannot spare the time to talk to clients about their personal problems. Possibly, the lawyer discourages his client from venting his feelings because he finds such issues painful and difficult to talk about. If, however, the lawyer decides to engage in counseling the client, is it the result of a family law course in law school that opened his eyes to the psychological effects of divorce? Is it because his experience as a divorce specialist has taught him that affluent clients expect to be provided with emotional as well as legal counseling—and are able and willing to pay for it? Or is it perhaps because this lawyer is naturally sensitive and empathetic and would not dream of silencing a person in distress?
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
The American Academy of Matrimonial Lawyers (AAML) addressed the professional dilemma over representation in 1991 by adopting standards of conduct for divorce lawyers entitled Bounds of Advocacy (American Academy of Matrimonial Lawyers 1991). In this report, the Academy criticized existing bar codes for not providing adequate guidance to divorce lawyers and for ignoring the uniqueness of family law. The AAML standards rejected overzealous representation of partisan advocacy and articulated instead “the much greater level of professionalism” to which matrimonial lawyers should aspire (American Academy of Matrimonial Lawyers 1991: 4). The norms for professional conduct set out in the Bounds of Advocacy are indeed the informal norms of the “reasonable” divorce lawyer that we encountered in our interviews with divorce attorneys: prescriptions to encourage settlement; to avoid hardball legal tactics; to treat opposing counsel with candor, courtesy, and cooperation.
The common norm of the reasonable divorce lawyer defined both typical and expected behavior for handling most divorce cases. Through this norm, attorneys found guidance from their peers in how to make the difficult judgments that are central to the professional role. Reasonable lawyers advocated for their clients by knowing the law of divorce and making independent judgments about how to apply that law rather than by identifying too strongly with clients. They sought negotiated settlements where appropriate and avoided unnecessary litigation. In short, the norm of reasonableness in divorce appeared to respond to and incorporate some of the critiques of adversary advocacy. Reasonable lawyers were said to reduce costs (financial and emotional) for clients, more accurately apply substantive law (rather than being caught up in strategic manoeuvres), and produce qualitatively better and more equitable case outcomes. Divorce lawyers are not ordinarily portrayed as behaving in this way. The press and popular culture depict the “Rambo” lawyer, who files every conceivable motion, seeks everything and more from the opposing side, refuses to cooperate in settlement, and argues vigorously and bitterly in a long, drawn-out trial.
Divorce Legal Framework
The law provides the basic structure for defining advocacy. As the comment on Model Rule 3.1 states, “The law, both procedural and substantive, establishes the limits within which an advocate may proceed” (American Bar Association 1995). The grounds for divorce in Utah allow both traditional fault criteria and no-fault, with equitable distribution of property and presumptions of shared legal custody of children. Knowledge of the law and experience with judicial decision making in divorce have led lawyers to construct informal norms about how to advocate for their clients. The communities of divorce lawyers have developed standards and shared reference points that define professionalism in practice. Not only does divorce bargaining occur “within the shadow of the law” but so too have attorneys’ ideas about the meaning of advocacy developed and changed within that legal shadow. Arguing zealously that a divorce client is blameless and deserves the bulk of the marital assets simply makes no sense to lawyers operating within a legal framework that ignores fault and presumes a 50–50 division of property. In other words, for most divorce cases, lawyers saw themselves engaged in something more closely resembling problem solving than adversarial negotiation.
In addition to the shift to no-fault, the introduction of child support guidelines significantly changed the law of divorce. Congress passed a law in 1984 to encourage child support enforcement, and states seeking federal funds were required to institute numerical formulas to guide judges in setting child support awards. The federal Family Support Act of 1988 further strengthened the 1984 law by making mandatory these mathematical formulas to set support amounts and strictly limiting deviations from them. Many states including Utah rewrote their child support laws to comply with these federal mandates.
“Winning” in divorce was not only unlikely as a matter of law, but it was also a costly goal to seek. That is, the costs of pursuing every possible avenue for a client within the bounds of the law often outweighed benefits to be gained. Divorce lawyers thus tried to convince clients to settle divorces by touting the comparative advantage of settlement over trials, rather than talking about fairness in settlement. A custody fight imposes costs on the “winning” party in terms of damaged long-term relationships that lawyers believed usually outweigh any gain. Divorce lawyers did not see divorce conflicts as zero-sum games.
The transaction costs of fighting for a greater share of property or more generous visitation were high, lawyers felt, and those costs rarely made economic sense for their clients. Thus, lawyers were attentive to the costs of alternative strategies in negotiation. Professional practice requires understanding what a job entails so that it can be done efficiently. Seeking a fair settlement rather than the most for a client, and opening divorce negotiations with a reasonable offer rather than an extreme one, provided lawyers with an efficient solution to the problem of negotiating an agreement.
youtube
When lawyers tender offers in negotiation, they communicate important information about their own judgment and operating style, information that is easily and quickly shared within a small legal community. At the same time, lawyers’ offers communicate something to the other lawyer about how she is viewed—as another professional to be treated with respect and courtesy or as an adversary to be fought.
Legal rules, concepts, and procedures in family law all influenced the nature of advocacy in divorce. The substantive legal rules of no-fault divorce rejected one-sided case outcomes and presumed instead an equal division of property and some sharing of legal responsibility for children. Strict child support guidelines further removed issues from legal dispute. The resulting legal framework thus provided few incentives for divorce lawyers in most cases to try to “win big” for their clients.
The ideology of legal professionalism includes a commitment to altruism. The realities of practice, however, place limits on selflessness. Scholars of the professions see as a core problem of professional practice “the tension between the provision of affordable and conscientious service to others, and the economic interest of those who provide it”. The American Bar Association’s Commission on Professionalism placed the tension between service and self-interest at the center of its inquiry, questioning whether the profession has lived up to its public service commitment. The formal rules of professional responsibility highlight this conflict without resolving context for many day-to-day decisions by divorce lawyers, decisions through which lawyers both construct and enact the variable meanings of professionalism in practice.
In a contested divorce, witness testimony and evidence can play an important role in the outcome of the trial. An experienced South Salt Lake Utah divorce lawyer can be your best friend if you are in the midst of a contested divorce.
Just as a lawyer may not himself make false statements or offer false evidence, he has certain kinds of obligations to the other side’s evidence as well. An attorney may not “unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” He or she must make a “diligent effort to comply with a legally proper discovery request by an opposing party.” The prohibitions on a lawyer’s making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer’s “natural” or full knowledge of events. They are, in a sense, limitations on the trial’s artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial’s artifice. By prohibiting a lawyer from alluding during trial to “any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence,” the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence. An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to “the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” It is only what can be proven subject to the public rules of the trial that affects the outcome.
Though the privileges, including the lawyer-client privilege, are part of the law of evidence, the lawyer’s duty of confidentiality goes beyond the attorney-client privilege, which applies only to confidential communications from the client and prevents compelled disclosures at trial. The duty of confidentiality prohibits the lawyer from revealing anything, whatever its source, “relating to the representation.” This affects the trial as well. It allows a lawyer to rely on what can be dozens of often slight misunderstandings by witnesses and opposing counsel that are helpful to his case. He does not have to tell the court that they “don’t quite have it right.” This is unlike the singular instance of “false testimony” offered by a witness whom she herself calls, where she has a duty to take “remedial measures” based on her own knowledge, whatever its source. Here, again, it is the artifice of the trial, embedded in the ethical and evidentiary rules operating together, that reigns.
Hence the law of professional responsibility pushes the trial in two very different directions. It imposes on a lawyer an ethical obligation to bend all his imagination and effort to present a case, tell a story, that serves his client’s own perceived interests. Facts are purposes. Yet against this general obligation stand specific and limited prohibitions: the client deserves counsel on the wisdom of his perceived interests in light of how the legal order will view those interests; access to evidence should not be obstructed; false statements should not be made nor false evidence presented; and the lawyer should respect the principles and policies embedded in the evidentiary rules. Purposefulness must respect those things which we cannot, or should not, change at will. The tension is between energy and respect. In any case, the rules of professional responsibility, both in reinforcing and limiting the trial’s artifice, make it what it is. Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution. The law of evidence provides the “grammar” of the trial. Only those truths that can be said “grammatically” can become part of the legal world. In the language of the trial courts, it is no longer “based on personal knowledge.” It becomes potentially objectionable as opinion testimony, as improper characterization, as reputation testimony, as unauthentic, as violating the best evidence rule, as hearsay. In each case the proponent of the evidence must look to some specific rule, with additional requirements, exceptions, and limitations, to admit the problematic testimony. The requirement of testimony in the language of perception, embodied in the requirement that testimony be based on “personal knowledge” and that it stay within the nonopinion rule, is one of the two fundamental principles of the law of evidence.
The nonopinion rule is, in the trial courtroom, supported by a range of objections “to the form of the question.” Most prominently, these objections prevent the lawyer’s “leading” most witnesses on direct examination, calling for conclusions, or assuming facts not yet in evidence. These rules prohibit some of the most common devices of ordinary conversation and have entangled thousands of young lawyers in their nets, reducing them to an embarrassed silence. These rules were not constructed in order to enforce the legal profession’s priestly prerogatives, to allow only the initiated to engage in the activities that invoke the power of the legal system. Rather, they enforce a certain vision of the form that direct examination, and so witness testimony, ought to have. They are rules that serve as “mere abridgement of the activity itself; they do not exist in advance of the activity.” The envisioned activity is lay witness testimony about any episode as a rhythm of physical description and then chronological narrative of events and actions.
The first can be accomplished without leading questions and questions that call for conclusions or the assumption of facts not yet in evidence only because the witness testimony has an implicit structure— that of spatial relationships. In fact, one of the most common rhetorical devices for description of the scene is the “walk around.” (“Now, as you entered the house and looked to your left, what did you see?” “And as your gaze came around to the area right in front of you, what did you see there?”) The second step has its implicit structure as well—that of temporal relationships. The most common question in direct examination is simply, “What happened next?” Now this simplicity is deceiving: as we have seen, a fair amount of craft can go into the structuring of a direct examination. My point here is only that unless the examination is conducted as a rhythm of physical description, and chronological narrative, it will inevitably violate the strictures against leading, calling for conclusions, and assuming facts not (yet) in evidence. Basic elements of narrative structure are embedded in the evidentiary rules that constitute direct examination. The other basic principle is the requirement that the evidence be relevant. Materiality requires that the proposition which the evidence is offered to prove be a proposition that is “of consequence.” The substantive law, of course, determines whether the proposition is of consequence.
Materiality is the notion that, more than any other, serves to limit the range of the inquiry at the trial, that keeps “every witness box from becoming a confessional.” Most broadly, it seeks to limit the trial to serving corrective or commutative justice, restoring a party to his legally legitimate expectations (or “rights”), without regard to broader inquiries concerning what we now call distributive or social justice, the fairness of the overall distribution of benefits and burdens between the parties. In a liberal society, it serves specifically to suppress inquiry into the moral character, or desert, of the parties.
Materiality thus requires that every unit of evidence offered be related to an element of the crime, claim, or defense—the propositions that the party with the burden of proof must establish in order to prevail. It has a dark side. The dark side is the threat it poses to “the truth, the whole truth, and nothing but the truth.” Materiality serves to assure that the truth which emerges at trial is a “legal truth,” determined solely by those aspects of the case that the law deems “of consequence.” Insofar as the legal perspective on the case deviates from a compelling moral perspective, for example, the trier of fact will be unaware of morally relevant aspects of the situation. Sometimes the gap between morally relevant and legally relevant may be justified, but ultimately it must be morally justified. And even if justified, it risks absolutizing the legal artifice by detaching it from its moral foundations, and so forgetting “that man is only the master, not the creator of the world.”
The other element of relevance is logical relevance: the unit of evidence must actually be probative of (or disprove) a legally determined element of the claim or defense.
To be logically relevant, a proposed piece of evidence need only make a proposition of consequence to the determination of the litigation (a “material” proposition) more or less likely than it would be without the evidence. It must ever so slightly alter the balance of probabilities. Once it achieves that level of probative force, it can be excluded only for what are basically pragmatic reasons, and only if those reasons “substantially” outweigh its probative force. Thus evidence is relevant if it makes any material proposition ever so slightly more or less likely than it would be without the evidence, unless certain pragmatic considerations substantially outweigh its probative value. That is a strong tilt toward admissibility, a tilt which approaches the vertical if understood practically.
The human mind seeks to determine historical truth (“what happened”) by constructing plausible narratives that are both consistent with the “web of belief” and supported by reliable evidence. The notions “consistent,” “supported,” and “reliable” are subject to varying interpretations and raise deep questions. A trial judge will not usually make his or her relevancy determinations by considering the direct logical relationship of the evidence offered to a material proposition. Rather, he or she will situate the evidence offered within the proponent’s factual theory of the case. But an advocate will almost always have choices to make among theories of the case and always will have choices among details of the factual theory, “subplots” if you will.
There are deep reasons why most evidence has “multiple relevances,” some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning—from a party’s “character” for example, or from a hearsay statement—that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trier of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an “illegitimate inference,” and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values. Thus the lawyer’s control over both the legal and factual theory of the case, the low standard for logical relevance, the high standard (“substantially outweighed”) for exclusion of logically relevant evidence, and the pervasiveness of the nonopinion rule all suggest that the rules of evidence function more to structure than to exclude evidence. This is true, even within the “rationalist” tradition in the law of evidence, which generally understands the warrants that render a piece of evidence logically relevant to be purely empirical, and so value-free, empirical generalizations embedded in the judge’s common sense about what happens “generally and for the most part.” But there is more to relevance.
Most obviously, what constitutes “unfair prejudice, confusion of the issues, or misleading the jury,” possibly calling for the exclusion of logically relevant evidence, requires a normative judgment on which purely legal considerations offer little guidance, and to which appellate courts are especially deferential. In many different ways, normative considerations affect “pure” relevancy determinations, both by rule and by judicial practice. This occurs in a self-conscious and focused way and, more important, in a tacit and pervasive way.
Some of these “relevancy” rules embody deeply held views about the importance of limited government. For example, evidence law prohibits a lawyer’s presenting proof of a witness’s religious beliefs in order to show that he is more or less credible.
The nonopinion rule and the relevance rule are the two most important and most “generative” of the rules of evidence. They are “generative” in the sense that most of the other evidence rules can be derived from them. There are basically four other categories of evidentiary rules, which have limited theoretical interest because of their derivative nature, but I deem them worth mentioning to round out the picture. The so-called best evidence rule requires only that the originals of documents be offered if available. Therefore, evidence as diverse as documents, physical evidence, telephone calls, and scientific processes all must be authenticated, unless it belongs to a class of evidence where there is no serious reason to doubt that evidence “is what it purports to be.” Authentication is usually fairly undemanding, the available methods virtually without limit, and the standard for admissibility relatively low. Though it is possible that some potential evidence can be excluded because the requisite “foundation” as to authenticity is unavailable, such exclusions are relatively rare. Evidence must also be “competent”—broadly speaking, “eligible to be received as evidence.” For example, a judge is incompetent to testify in a trial over which she presides; a juror is incompetent to testify as to his own intentions during deliberation in order to “impeach” or overturn his verdict; it is still said that a witness who has not perceived anything of consequence, or cannot remember what he perceived, or is incapable of communicating what he perceives and remembers, or is psychologically or morally incapable of differentiating fact from fantasy, is “incompetent” to testify.
Competence is a residual category. It now excludes certain kinds of evidence because they are likely to be unreliable, such as the testimony of very young children and persons in psychotic states. The broad tendency of the law of evidence has been to eliminate total incompetencies to testify and permit, instead, forms of impeachment that allow the juror to weigh the troubling aspect of the witness’s testimony like any other “impeaching” fact. Competency rules also exclude certain kinds of evidence for “structural” reasons: the judge’s potential testimony in the case over which he presides and usually the trial lawyer’s testimony in the case he tries. Finally, there is the rule against hearsay, which excludes out-of-court statements offered for the truth of the matter asserted. There is a wonderful scholasticism surrounding the definition of hearsay that has its interests but is not germane to my purposes here. The most fundamental purpose of the hearsay rule is to protect cross-examination, “the greatest legal engine ever invented for the discovery of truth.” The notion is that only if the person whose perceptions are being reported is the same person who is reporting the perceptions can the cross-examiner properly explore (1) important weaknesses in perception, memory, and clarity of expression that may infect the testimony even of sincere witnesses, and (2) biases, interests, prejudice, and character failings that cast doubt on the witness’s credibility.
The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have “catch-all” exceptions for hearsay that simply seems “reliable.” Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Out of-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule.
The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence.
Lawyers play the dominant role in the courtroom because they serve professionally as essential, expert advocates for those they represent. A word used since at least the thirteenth century, “advocate” refers to a “lawyer who pleads a case in a court of law on behalf of another”. In divorce trials, each of the litigants—plaintiff and defendant—are represented by one or more advocates. Preparing and pleading a case in the modern legal world is a time-consuming, complicated process requiring extensive knowledge of the law and the rules of the legal system. Parties generally have no hope of competently managing a case on their own (proceeding “pro se”). Trial cases are the bailiwick of lawyer-advocates. What is litigation? It is a legal proceeding between two or more parties in an attempt to “right” an alleged wrong. The “right” usually takes the form of a demand for payment to the party alleging injury. The path to a legal solution is often filled with unanticipated twists, unexpected delays, and potentially high stress for even the most seasoned litigants. Litigation is more often about losing less than it is about winning more; a litigant “is a person about to give up his skin in the hope of retaining his bone.” An anonymous author once wrote that “America is a country where, thanks to Congress, there are 40 million laws to enforce 10 Commandments.” As a result, litigation can easily take long periods of time and a great deal of expense. As courts become more congested with the seemingly endless number of cases being filed, the process can bog down from sheer volume alone. To be fair, many of the cases filed have merit. The American legal system is built on the principle of protecting the rights of the individual, and litigation is one way to protect those rights. Merit or not, however, the number of lawsuits continues to grow with little sign of slowing. Lawyers are the vanguards of the justice system. The American Bar Association’s Model Rules of Professional Conduct provide attorneys with a framework for carrying out their responsibilities to their clients, the courts, and society in a professional manner. These rules are particularly important when pursuing a client’s claims, given the adversarial nature of litigation as well as the conflicts that may arise when lawyer and client have differing interests in the outcome (for example, settling a case versus taking it to trial).
The Model Rules require lawyers to provide “competent representation” to their clients in the areas of legal knowledge, skill, thoroughness, and preparation. Legal knowledge includes knowledge of federal and state rules of evidence and civil procedure, as well as precedents set by case law, in order “to advance and protect the integrity of the fact-finding process.” Mastering these laws not only helps lawyers and their clients but also reduces the possibility for embarrassment and legal complications such as mistrials, inadmissible evidence, lost appeals, or reversed verdicts.
Custody and Parental Involvement
Custody itself is probably the biggest factor determining the level of parental involvement among parents who do not live together, because of its long-run effects on the level of emotional effort, care, and connection. In some families, noncustodial parents visit frequently and consistently. This is especially true immediately after children are born to unmarried parents who are romantically involved. However, these relationships tend to either turn into cohabitation or marriage or break up within a year or two. When parents are divorced or were never married and are no longer romantically involved, fathers’ involvement with children is often minimal and sporadic. Among a significant minority of such families, paternal visitation tapers off to nothing or nearly nothing within a few years.
Noncustodial parents tend to disengage emotionally for several reasons, whether as a result of relationship atrophy (“out of sight out of mind”), emotional avoidance (“it’s just too painful to see my kids under these conditions”), or overreliance on the custodial parent (“she’ll take good care of the kids no matter what I do”). Custodial parents may want to avoid contact with their previous partners at all costs. Emotional disengagement may contribute to financial disengagement, or vice versa. In any case, the effects are cumulative: The more emotionally disengaged the noncustodial parent becomes, the less implicit bargaining power the custodial parent has to increase either payment or time inputs. If the noncustodial parent feels little connection to—and wants no contact with—the child, the custodial parent is less able to successfully use an appeal to the needs of the child or a threat to make visitation or contact more difficult as a bargaining strategy. Furthermore, the less emotionally engaged the noncustodial parent becomes, the less the custodial parent and child have to gain from personal contact with him (or her). Thus, disengagement of one type breeds further disengagement.
Most parents want to increase their children’s well-being. But the ways they want to do so are shaped not merely by their perceptions of children’s needs but also by their own preferences—how they weigh their children’s and fellow parent’s well-being relative to their own. A father may feel less need to be involved in direct parenting if a mother is already providing substantial effort, and vice versa. Both levels and forms of parental involvement are subject to negotiation and bargaining. For instance, one parent might want the other parent to spend more time or money or simply give more personal attention to a child. That parent might offer something in return, as in, “If you’ll put the children to bed, I’ll do the dishes. ” Parents don’t negotiate over every detail of their lives. Many aspects of the division of labor in parenting are determined by social norms or prior agreement. Traditionally, we expect fathers to provide more income and mothers to provide more direct care for children. But in periods of time when both social norms and individual economic opportunities are rapidly changing, the scope for individual bargaining probably increases. For instance, a mother who has high earnings potential or who is committed to her career is likely to bargain with the father to increase his direct involvement in child care.
Such negotiations are necessarily complex. Parental involvement is a not a simple “product” but a process that requires emotional effort as well as time and money. It imposes costs, but it also confers benefits. Therefore, we cannot assume that parents always want to minimize it or to maximize it—rather they probably seek some level of involvement that is determined both by their perceptions of what children need, their own preferences, and what they believe the other parent should and could provide. It is important to remember, however, that some circularity comes into play; for example, a parent’s bargaining power may affect how much the other parent is involved with the child, but that involvement may in turn affect the parents’ relative bargaining power.
Rules about custody and support interact in ways that illustrate the interplay of nonpecuniary and economic benefits. Child custody is psychologically important to parents, especially to primary caregivers whose involvement is time and care intensive. They may feel that custody is necessary in order to provide greater continuity for themselves or the child; furthermore, as primary caregivers, they may be more emotionally attached to the child. As we discussed, this means that most mothers cannot make a credible threat to stop taking care of the child within the marriage or in the event of divorce (to leave the child with the father); thus, their ability to use the fact that they are providing child care as a bargaining chip with the father is limited, and it is limited even more if the father’s empathy for the child is low because he has been less emotionally involved.
The intensification of child support enforcement efforts over the past few years has provoked tremendous controversy. Although success has been uneven, more divorced fathers are paying children support. This, together with the growing cultural stigmatization of “deadbeat dads” has almost certainly increased the bargaining power of mothers relative to fathers within marriage as well as among noncohabiting parents. Mothers’ external threat points are higher as a result. Men can withdraw some of their earnings by divorce, but the amount of withdrawal is reduced by the amount of child support mandated by the state. Not surprisingly, some men have responded to this trend by demanding greater consideration as potential custodians in the event of divorce. In most states today the presumption of legal custody is no longer gender specific, but rests instead on what the court deems best for the child. Relatively few fathers try to convince judges that they are the better custodial parent, and even fewer succeed. But the number of men who seek and get custody or joint physical custody is rising.
Thus, the legal environment has produced two changes in recent decades. Mothers’ confidence that they will get child support if they divorce has increased, but they can be less sure than before that they will get custody. What is the net effect of this change on bargaining power likely to be? One could argue that two changes cancel each other out in their effect on maternal bargaining power—that is, mothers gain a higher probability of effective child support enforcement at the cost of a higher risk of losing sole custody and so there is no effect on their bargaining power. It is hard to say.
Divorced noncustodial parents are required to pay child support (provided there is a court order for it), and custodial parents are required to allow visitation by the other father. Furthermore, states limit the ability of unmarried parents to bargain by setting separate and independent rules regarding custody, visitation, and support. Failure to pay child support, for instance, cannot generally be used as a reason to deny a noncustodial parent contact with a child. Nor can failure to enjoy visitation easily be used as a reason not to pay child support.
Cohabitation and Alimony
No laws in Utah require unmarried cohabitants to support each other. And no state including Utah awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute, the word palimony is actually inaccurate.
Traditionally, unless a couple has an express written agreement to the contrary, the law has left matters regarding the property owned by cohabitants if they end their relationship as they are. Thus, when a couple separates, the property goes to whoever has legal title to it. Usually, this has meant that the man gets the property, because in relationships in which the man is the wage earner and the woman the homemaker, the wage earner “owns” the property acquired through his wages. In addition, until recently, most state courts refused to enforce even express agreements between cohabitants as to support or ownership of property. These courts have followed two main lines of reasoning. First, they have based their refusal on the grounds that such agreements are invalid. because they are based on “illicit sexual services.” For any contract to be valid, it must be based on something of value, or what the law calls consideration. Consideration cannot be illegal. The typical consideration in business contracts is money, services, property, or goods. Traditionally, courts have ignored the fact that most contracts between cohabitants are based on similar types of consideration. They have assumed either that the only services exchanged are sexual services or that, because sexual services form even part of the agreement, they invalidate the entire agreement. The second line of reasoning courts have used in refusing to enforce contracts between cohabitants is that homemaking services have no dollar value, so are not sufficient consideration to support an agreement to share property or to provide support.
Divorce and Alimony
In some divorces, courts award alimony, also called spousal support or maintenance, to one party. Alimony is especially likely after a long marriage or if one spouse gave up career plans to support the other spouse or to care for the children.
Alimony is designed to help a lower-earning spouse make it through the divorce and the transition into a new single life. Depending on the length of the marriage and the degree to which one spouse was financially dependent on the other, support can be either temporary or last for many years. However, the nationwide trend is for courts to award spousal support in fewer and fewer situations, and for shorter times when they do award it, because it has become common for both spouses to work or at least be able to return to work. The court’s decision on whether one spouse is entitled to support from the other after the divorce is completed, begins with the question of need. There’s no hard and fast rule, but in general the longer the marriage, the stronger the presumption that support is appropriate. The court will consider many factors while determining alimony including the length of the marriage, the division of marital property, the income and earning capacity of the spouses, the amount of time one spouse has not worked since the marriage and any other factor that the court may consider as relevant.
Alimony falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final. It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.
Short-term support is ordered when the marriage itself was short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It usually lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed. The recipient is responsible for diligently pursuing their training and then searching for work. The other spouse is responsible for paying the support until that point—and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.
Permanent support may be granted after long marriages, generally more than ten years, if the judge concludes that the dependent spouse isn’t likely to go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. Permanent support does eventually end when either the recipient or the payor dies. It also may end when the recipient remarries. In about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities. Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of those expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying. If you are seeking alimony payments from your spouse, or your spouse is seeking alimony payments from you, the services of an experienced South Salt Lake Utah divorce lawyer can greatly increase your chances since the lawyer has been trained in how to present evidence that supports your position to the judge.
Hire the services of Ascent Law – Hire an experienced South Salt Lake Utah divorce lawyer.
Unless you and your spouse have mutually agreed on the terms of your divorce, your divorce battle can be a long drawn case. You will have to back up your claims with evidence and be prepared to testify in support of your case. If there are children from the divorce, the custody of the children will be decided by the courts unless you and your spouse have mutually agreed on the custody. The mother does not automatically get custody of the children. The court will consider many factors when deciding on who should get custody of the children in a contested divorce. Utah divorce law is complex. Attempting to navigate the complex maze of Utah divorce laws can be disastrous. Seek the assistance of an experienced South Salt Lake Utah divorce lawyer.
South Salt Lake Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in South Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Child Custody. Alimony. Modification of Child Support. Modification of Divorce Decree. And Much More. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Recent Posts
Criminal Lawyer Midvale Utah
What Is The Average Cost Of An Estate Plan?
Cache County Utah
Automobile Accident Lawsuits
Can DUI Be Reduced To Reckless Driving?
Family Lawyer Herriman Utah
Source: https://www.ascentlawfirm.com/divorce-lawyer-south-salt-lake-utah/
0 notes