Frequently Asked Questions

Real estate, also called “real property,” refers to land, and it includes any buildings constructed on the land and other permanent improvements on likes walls.

• Sole ownership of real estate is ownership of property by one person.
• When more than one person owns real estate, they own the property as either joints tenants or tenants in common.
  • Joint tenancy is ownership of real estate by two or more people at the same time, and when one of the owners dies, that owner’s share of the ownership automatically passes to the surviving owners.
  • Tenancy in common is also ownership of property by two or more people at the same time, but when one of the owners dies, that’s owners share of the ownership passes to the owner’s heirs, not to the surviving owners.

• One of the most important things when buyer or selling a home is the real estate purchase contract. The buyer and seller should always sign a real estate purchase contract. The contract should include the details of the transaction, including the purchase price, earnest-money deposit, deadlines, and the closing date. A properly drafted contract will specify the parties’ rights and obligations, the conditions of the transaction, and what happens if there is a dispute.
• After the contract is signed, the seller must provide the buyer with detailed information about the home (called seller’s disclosures), including disclosing in writing whether the seller knows of any problems with the physical condition of the home or any or zoning problems.
• After the seller provides these disclosures, the buyer usually has period of time to conduct the buyer’s due diligence, which typically includes the opportunity to inspect the home, have the home appraised, have a title search performed, and secure a loan from a bank to purchase the home. Often the terms of the contract will allow the buyer to cancel the contract if there’s a problem with the home’s condition or title that the seller can’t or won’t resolve, the home appraises below the purchase price, or the buyer is unable to obtain a loan.

• Earnest money is money that a person buying real estate pays as a deposit, usually when the real estate purchase contract is signed.
• The deposit of earnest money shows the seller that the buyer is serious about buying the property.
• At the closing of the property purchase, the earnest-money deposit is applied to the purchase price, and the buyer pays the purchase price minus the amount of the earnest-money deposit, which the buyer has already paid.

• Real estate purchase contracts usually require the seller to convey marketable title to the property to the buyer. “Title” refers to legal ownership of the property, and “marketable title” means legal ownership of the property that is free and clear of encumbrances. Examples of encumbrances include mortgages, liens, taxes, assessments, and easements.
• A title search is a search of public records, usually conducted by a title-insurance company, to determine the legal owner of a piece of property and identify encumbrances on the property.

• Boundary disputes
• Easement disputes
• Homeowners association disputes
• Condominium association disputes
• Seller-disclosure disputes
• Zoning and land-use disputes
• Lien disputes, including disputes over construction liens and wrongful liens

• An easement is a legal right to use (but not occupy or possess) another person’s land for a specific purpose.
• One of the most common types of easements is a right-of-way easement, which gives a person the right to drive or walk across another person’s property. Another type of easement is a parking easement, which gives a person the right to park on another person’s property. Other types of easements include utility easements, drainage easements, view easements, solar easements, and avigation easements.
• Easements can be implied or written, and written easements are recorded with the county recorder.

• Zoning refers to city or town (or county) laws that govern how real property can be used in specific geographic districts or zones. Zoning laws divide a city or town into different zones, and control the development and use of land in each zone.
• The types of zones in a city or town generally include residential, commercial, industrial, and agricultural zones.
• A person cannot use their property in a way that violates the zoning laws. For instance, if you own property in a commercial zone, zoning laws will usually not allow you to live on the property or build a home on the property.

• The closing is the final step in a real estate purchase transaction. At the closing, the buyer pays the purchase price for the property, and the seller signs the deed conveying (transferring) ownership of the property to the buyer.
• The closing is typically handled by a title company. The seller pays the title company the purchase price, and the title company disburses the money to the seller and any others who may be entitled to a share of the proceeds, like to real estate agents who have earned a commission.
• The title company usually prepares the transfer deed and records the deed with the county recorder once it is signed.

• If a buyer discovers an issue with property after purchasing it, the first thing a buyer
  should do is document the problem. For instance, if the buyer discovers water damage,
  the buyer should take photos and videos of the damage.
• A buyer should then carefully read the purchase contract and the seller’s disclosures. In
  most situations, it’s important to have a real estate attorney review and analyze these
  documents to determine who is legally responsible for problem and to provide advice
  about the buyer’s rights and options.
• Contacting the seller or the seller’s realtor may be all that is necessary to resolve the
  issue.
• If not, a formal demand letter from an attorney may be enough to prompt the seller to
  resolve the issue.
• If that doesn’t work, then mediation may be required by the purchase contract. Mediation
  is a type of alternative dispute resolution where a neutral third party (usually a retired
  judge or an experienced attorney) attempts negotiate a mutually acceptable agreement
  between the buyer and seller to resolve the issue.
• If mediation isn’t successful or mediation isn’t required, the buyer may be forced to file a
  lawsuit against the seller.

• An attorney can be pivotal in a real estate transaction, offering a range of services to protect a client’s interests and guide the client through the process.
• An attorney can draft or review real estate agreements, such as purchase contracts, leases, and easements, and ensure client’s rights are protected, provide advice, negotiate more favorable terms, and avoid problems before they arise.

When asking a Utah Court for a divorce, you must tell the Court the legal reason for your divorce.  There are 10 legal reasons.  Some of the reasons require a party to prove that someone was to blame for the breakdown of the marriage (fault-based grounds), and one does not (no-fault based grounds).  The legal reasons are:

• Impotency of the respondent at the time of marriage;
• Adultery committed by the respondent subsequent to marriage;
• Willful desertion of the petitioner by the respondent for more than one year;
• Willful neglect of the respondent to provide for the petitioner the common necessaries of life;
• Habitual drunkenness of the respondent;
• Conviction of the respondent for a felony;
• Cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
• Irreconcilable differences of the marriage;
• Incurable insanity; or
• When the petitioner and respondent have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.

No Fault Divorce:  Utah is a “no-fault” divorce state.  That means the parties are allowed to say that they have “irreconcilable differences of the marriage” without having to discuss or allege the details of why the marriage has broken down.  This is the most common type of divorce in Utah.

Each marriage situation is a little different, and the facts of your case will determine the outcome of how a Court may divide marital property.

In general, property acquired during the marriage is distributed by a Utah Court in an “equitable” manner.  Equitable means “fair”, but does not always mean equal.  Things that may be divided include, but are not limited to, personal property, real property, debts, retirement account, bank accounts, and other things.

There are many factors that the Court will consider when dividing marital property.  The

If you have a prenuptial agreement, that may impact how the Court will distribute your martial property.

There are dozens of factors that the Court can consider in determining child custody.  The Court’s ultimate goal is to make a decision based upon the best interest of the child(ren).  There are statutory factors that the court must use, and then the Court can consider any other factor that it finds relevant.  Utah Code §81-9-204 outlines the statutory factors:

1. Evidence of psychological maltreatment;
2. The parent's demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the minor child, including the minor child's:
   • Physical needs;
   • Emotional needs;
   • Educational needs;
   • Medical needs; and
   • Any special needs;
3. The parent's capacity and willingness to function as a parent, including:
   • • Parenting skills;
     • Co-parenting skills, including:
       
       1. Ability to appropriately communicate with the other parent;
       2. Ability to encourage the sharing of love and affection; and
       3. Willingness to allow frequent and continuous contact between the minor child and the other parent, except that, if the court determines that the parent is acting to protect the minor child from domestic violence, neglect, or abuse, the parent's protective actions may be taken into consideration; and
       4. Ability to provide personal care rather than surrogate care;
4. The past conduct and demonstrated moral character of the parent;
5. 4. The emotional stability of the parent;
6. 5. The parent's inability to function as a parent because of drug abuse, excessive drinking, or other causes;
7. The parent's reason for having relinquished custody or parent-time in the past;
8. Duration and depth of desire for custody or parent-time;
9. The parent's religious compatibility with the minor child;
10. The parent's financial responsibility;
11. The child's interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the minor child's best interests;
12. Who has been the primary caretaker of the minor child;
13. Previous parenting arrangements in which the minor child has been happy and well-adjusted in the home, school, and community;
14. The relative benefit of keeping siblings together;
15. The stated wishes and concerns of the minor child, taking into consideration the minor child's cognitive ability and emotional maturity;
16. The relative strength of the minor child's bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the minor child; and
17. Any other factor the court finds relevant.

Child support is an amount that a parent pays toward the support of their minor child(ren).  Utah law presumes that each parent is responsible for the financial support of their child(ren).  Because each parent must contribute to the financial support of their children, there is a specific statutory way that the Court usually calculates child support between the parents.  In general, the law uses the gross monthly income of the parents, the number of children between the parents, and the number of overnights that each parent has the children. There are tables that can be found in the Utah Code §81-6-304, and §81-6-305 that give a more specific breakdown.

There is also a Utah Child Support Calculator on the Office of Recovery Services website that you can use to understand how your income and that of your other child’s parent may be used to determine the child support amounts:

https://orscsc.dhs.utah.gov/

While there may be a reason to deviate from the child support guideline

A Utah Court may award alimony in your divorce case for a spouse who earns less or is capable of earning less than the other spouse.  “Fault” for the breakup of the marriage may be used by the Court in determining whether or not to award alimony, and the terms of any alimony awarded.  There are many factors the Court may consider including, but not limited to:

1. The standard of living existing during the marriage, which factors shall include the following:
   • income;
   • the approximate value of real and personal property; and
   • any other factor that the court determines to be appropriate to enable the court to make a determination of the standard of living existing during the marriage;
2. The financial condition and needs of the payee, provided that the payee may show financial needs by itemizing expenses present during the marriage rather than by itemizing post petition expenses;

1. The payee's earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a minor child of the payor;
2. The ability of the payor to provide support;
3. The length of the marriage;
4. Whether the payee has custody of a minor child requiring support;
5. Whether the payee worked in a business owned or operated by the payor; and
6. Whether the payee directly contributed to any increase in the payor's skill by paying for education received by the payor or enabling the payor to attend school during the marriage.

Mediation is mandatory in all family law cases.  In rare situations, the Court may waive mediation when asked, but the Court usually requires extenuating circumstances to waive the mediation requirement.

Mediation is an opportunity to meet with your opposing party and a third-party neutral person (mediator) who trained to help you resolve the issues of your family law case.  Mediation is often the best place to come to an agreement about the issues in your case.  Usually, the Court honors whatever agreement you and your opposing party make at mediation.  It is the place that you and your opposing party have the most control over your case, and is almost always the best place to resolve the issues.

You can find a list of Court approved mediators here: https://www.utcourts.gov/en/about/miscellaneous/mediation/divmed/public.html

You can find more information about mediation on the Utah Court’s website here: https://www.utcourts.gov/en/about/miscellaneous/mediation/divmed.html

Domestic Violence means: “any criminal offense involving violence or physical harm or threat of
violence or physical harm, or any attempt, conspiracy, or solicitation to commit a criminal
offense involving violence or physical harm, when committed by one cohabitant against
another.” (Utah Code 77-36-1)
Abuse means: “intentionally or knowingly causing or attempting to cause another individual
physical harm or intentionally or knowingly placing another individual in reasonable fear of
imminent physical harm.” (Utah Code 78B-7-102)
If you have been subjected to domestic violence, abuse, or stalking, you may qualify to file a
protective order or civil stalking injunction. There are 8 different types of protection orders:

• Child Protective Order
• Dating Violence Protective Order
• Sexual Violence Protective Order
• Cohabitant Abuse Protective Order
• Civil Stalking Injunction
• Criminal Protective Order
• Criminal Stalking Injunction
• Workplace Violence Protective Order

Each type of protective order has different qualifications or requirements. If you believe you
need one of these types of protective orders, you should consult with an attorney to decide which
one may be right for your situation.
Often, police departments have a victim advocate who may be able to help you fill out the
protective order paperwork.
If you qualify for a protective order or stalking injunction, you can file a request for protective
order. The paperwork is available on the Utah Court program MyPaperwork:
https://www.utcourts.gov/en/self-help/services/mycase/mypaperwork.html
If the judge believes you meet the requirements for a protective order or stalking injunction, they
may issue a Temporary Protective Order and will give you a court date.

There is more information regarding protective orders and stalking injunctions on Utah Court’s
Website: https://www.utcourts.gov/en/self-help/categories/protect-order.html#accordion-6fb5bb8200-item-83c3253799

If you are or someone you love is experiencing abuse, threats of violence, harassment, or stalking, PLEASE file a report with your local police department. 

Helpful resources for victims of abuse and domestic violence:

The Dove Center (Washington County)
435-628-0458
https://dovecenter.org

Utah Domestic Violence Coalition
1-800-897-5465
https://udvc.org

Canyon Creek Services (Iron County)
435-233-5732
https://www.canyoncreekservices.org

Civil litigation is the legal process used to resolve non-criminal disputes between individuals,
government entities, businesses, etc. through the court system. It usually involves one party
(the plaintiff) suing another party (the defendant) seeking damages, enforcement of rights, or
other legal remedies.

Almost any type of lawful dispute (that is not a criminal dispute) would fall under the category
of civil litigation. Such disputes would include those related to contracts, personal injury, real estate, family law, wills and estates, etc.

• A civil lawsuit typically starts with the filing of a complaint by the plaintiff. Once a defendant is
  served with a copy of the complaint, a defendant has a certain number of days to file a
  response (usually an answer).
• After a response has been filed, most civil cases proceed with
  fact discovery (comprised of initial disclosures, written discovery, depositions, etc.), followed by
  expert discovery, and then trial.

Discovery is the process whereby a party “discovers” or obtains information related to the
pending case. Discovery takes place in both the fact discovery and expert discovery phase of
the case. Fact discovery usually consists of initial disclosures (whereby the parties exchange
information related to the case), written discovery (the process whereby parties can ask that
the other side provide information related to the case), and depositions (the process whereby
parties can ask the other side questions in person under oath), etc. Expert discovery usually
consists of expert disclosures, expert reports and depositions.

A motion is a legal document that is filed with the court that asks the court to do something.
Typical types of motions include motions to dismiss, motions for summary judgment, and
motions in limine.

State courts have jurisdiction over matters that relate to or implicate state law. Most family
law, real estate, contract disputes, will and estate issues, and personal injury matters are
handled at the state level. In contrast, federal courts have jurisdiction of matters involving
federal laws, and disputes between parties of different states or countries where the amount in
controversy exceeds $75,000, etc.

There are two main types of alternative dispute resolution (ADR), mediation and arbitration.

• In mediation the parties work through a mediator (usually a retired judge or attorney) to try to reach a voluntary resolution or settlement of the case.
• In arbitration, the parties work with a
  neutral third party, known as an arbitrator, who makes a decision (based upon the facts and evidence of the case) that is usually binding on the parties.

The length of a lawsuit can vary greatly from case to case based upon the parties and what they
are seeking in the lawsuit. Typically, to reach a resolution short of settlement, on the short end
lawsuits take months to resolve, and on the long end lawsuits may take years before
completion.

The costs of civil litigation can vary wildly based upon the specifics of the case. Attorneys may
charge a client a flat rate, by the hour, or a contingency fee depending on the nature and
circumstances of the case. There are also court costs (e.g. – a filing fee, etc.) associated with
civil litigation.

In a civil case the burden of proof is “preponderance of the evidence.” In essence this means
that the party bringing the claim (typically the Plaintiff) must prove their case is more likely than
not to be true.