Frequently Asked Questions

Married adults (who have permission from their spouse) may adopt but also single adults who are not cohabitating may also adopt.

Yes. Adoption formalizes the bond between the adoptive parent(s) and the child. This results in a legal relationship that is fully equivalent of biological parenthood.
The Utah Adoption Act sets forth all requirements for a legally-sound adoption, and our law team can help you successfully this process.

Yes. Currently the federal government (and even some states) give adopting parents tax credits for expenses spent on the adoption process. This allows adoptive families to recover some of the money spent adopting their child. The federal adoption credit sits at $13,170 currently, which means many adoptive families will recoup most, if not all, of the money they spend on adoption.

If someone does not consent to an adoption, he or she must either (1) inform the court in writing of an objection within thirty days of receiving notice of the adoption, or (2) they must appear at the adoption hearing and inform the court of his or her objection in person.  The best course of action in a contested adoption is to hire an attorney because with two parties arguing for legal rights to a child, things can become quite complicated very quickly. 

Yes, they may. The procedures for stepparent adoptions are a bit different procedures than non-stepparent adoptions (for example, the adoptive child must have lived with the custodial parent and stepparent for at least one year), but in general, they follow similar rules. Once a stepparent has adopted his or her stepchild, the rights of the biological parent are terminated.

For non-stepparent adoptions, the typical time is six months. For stepparent adoptions, the time is around one year.

This all depends on the adoption, but the general rule is anyone who must give consent must be notified of adoption proceedings. Also, notice must be given at least thirty days before any proceeding. Here are a few common examples of who must be notified: (1) your spouse, (2) legally-appointed guardian(s), (3) a parent listed on the child’s birth certificate, (4) and/or anyone who acts as the child’s parent and lives with the child.

Yes, almost always. Typically, the birth mother will give consent to adopt more than twenty-four hours after the birth of the adoptive child. Consent may be given to a judge or to a judge’s representative, such as an adoption agency. Consent, once given, cannot be withdrawn.
If the baby was born within a marriage, consent may also be required from the birth father.  Or, if the unwed father meets certain legal criteria (e.g. adjudicated father, filed voluntarily declaration of paternity, etc.), consent may be required in this circumstance as well.
A child may also give consent to an adoption assuming the child is more than twelve years old and mentally competent.
In some cases, consent may not be required – for example, if a child’s parents are deceased or their rights have been terminated by the State.

Ten years

The Utah Adoption Act governs Utah adoptions.

Many states tend to prefer that guardians be related to the individual or that they have an established relationship whenever possible. However, this is not a requirement. What is most important is that they are over the age of 18 and can make the decisions for the person they are serving as guardian for with the best interests of that person in mind.

Because of this last requirement, convicted felons and those who have been determined to need a guardian themselves should not serve as a guardian for another person. Also, some people serve as guardians professionally; an institution, either public or private may also be appointed as a guardian but only if they are not providing services where they may benefit from the decisions they make for the person they are guardian for. Financial institutions sometimes act as guardians for matters related to a person’s estate.

Different guardians are appointed by the court when parents are deceased or determined incapable of making choices for their children, or when an adult is deemed incapable of managing some or all of their own affairs. That said, simply being disabled does not mean an adult needs a guardian. It must be demonstrated that they lack the capacity to make decisions in a number of different areas including health care, living arrangements, education, financial matters, and care of minors they may be legally responsible for.

In order to appoint a guardian for an adult, it must be first be determined that the individual is incapacitated and then that the guardian is qualified and that the guardianship itself will protect the individual and help to keep them safe.

There are times when an individual may need assistance in a certain, specific area (or areas) of their life A limited guardianship looks at the individual capabilities of a person or the prospective guardian, and a court order will outline specifics where a guardian is necessary and when it is not. For example, a person may be qualified to make everyday financial decisions, such as buying groceries or personal items, but will not have the mental capability to understand making financial investments. In this case the individual may need a guardian for major financial decisions only.

 A person may need a guardian for different areas of their lives. They may be considered “incapacitated” in one area, but may be fully qualified to handle their own care in another.

Guardianship of the person oversees the physical and emotional well-being of the person they are guardian of. They will be called on to make decisions regarding health care, releasing confidential information, when necessary, and placement in a residential facility.

Guardianship of the estate oversees the person’s financial interests, including any income, inheritance, property, or real estate that they own

You should file a Voluntary Declaration of Paternity (VDP) with the Department of Health. This form may be obtained at the hospital where your child was born, at a local health department office, or at the Office of Vital Records and Statistics.

Yes. If you are a possible father and refuse to submit to genetic testing freely, a judge has the authority to order you to undergo testing in a paternity case.
It should be noted that either parent may file a paternity case in court, asking a judge to declare that a specific person is a child’s father. When making this determination, the judge can also issue related decisions about child support, custody, and parenting time (visitation) at the same time.

Ultimately the court will determine how decisions and time with the children will be divided between the two parents. But before that, can the two of you come to an agreement on terms? A judge will accept the parents’ agreement as long as it is deemed to be in their child’s best interest.  But if you cannot agree, then custody becomes a matter for the judge to decide, taking into consideration various factors:

• The way each parent has interacted with the child to date, and how dependent the child is on each parent
• Each parent’s willingness to shield the child from any conflict between the parents
• Who is more likely to put the child’s best interests first — including sharing the child’s time
• Whether a child’s overall well-being will benefit most from joint custody
• The wishes of the child – assuming the child is capable and old enough to weigh in reasonably
• Where each parent will live after the divorce is finalized.

“Joint physical custody” describes a situation in which each of the parents gets to spend at least 111 nights with their child. This joint solution typically does not result in both people having exactly equal shares of parenting time.

“Sole physical custody” means one parent is entitled to 254 nights with the child. To be awarded the desired custody plan, a parent must be able to show multiple overlapping factors, such as keeping relationships between siblings intact, offering a stable, nourishing environment for the child, etc. Note that a court is likely to put a strong emphasis on which parent had been the child’s primary caregiver throughout the marriage.

Legal custody is the power of a parent to access information and contribute to decision making with regard to a child’s schooling and cultural activities, spiritual upbringing, and medical care. Naturally, less weighty decisions about a child’s food, clothing, transportation, and so forth generally need to be made by whichever parent is caring for that child on a given day. In the event of disagreement on any of these issues, the parent may turn to a dispute resolution provision which should be included in their custody plan.

It should be noted that Utah law favors joint legal custody, as it is currently seen as serving a child’s best interests.

Child support payments are intended to provide for the care and financial needs of minors.  The relative level of need is often determined by the lifestyle and living conditions of the child prior to his or her parents’ separation and this can play a role in calculating child support payments. The non-custodial parent, therefore, may be obligated to help maintain the standard of living that a child enjoyed before the divorce. Similarly, the court will typically consider needs that are specific to a child, for example, children who have a mental or physical disability.

In addition to considering the needs of a child, a family law judge will typically factor in the income of both a child’s parents, as well as other available resources. The custodial parent may earn more money and/or have a higher net worth than the child’s other parent. As a result, he or she may be required to pay less child support. On the other hand, a child’s non-custodial parent could be obligated to pay more child support if the court determines that he or she maintains a suitable income.

One tactic some parents take is to purposely reduce income by becoming unemployed or underemployed (when a person purposely takes a lower paying job.) Since child and spousal support obligations are based (in large part) on a person’s ability to pay, eliminating or reducing monthly income would theoretically reduce a person’s support obligation. However, most states recognize this unethical tactic and have passed laws to prevent people from reducing their support obligations in this way. Under these laws, courts may impute income to a party who purposely becomes unemployed or underemployed to avoid paying (or to reduce the amount of) child or spousal support. To be clear, IMPUTED INCOME DOES NOT REPRESENT ACTUAL INCOME. Imputed income represents an amount of income a party should or could be making based on the facts presented.

Utah’s imputed income statute is provided under Utah Code § 78B-12-203(6-7). In short, the code provides that the court may impute income if: 1) the party stipulates to the amount imputed, 2) the party defaults, or 3) a hearing is held and the judge enters findings of fact as to the evidentiary basis for the imputation.

Therefore, it can be seen that income may be imputed in situations other than when a party is purposely trying to reduce income to minimize or eliminate a support obligation. The first situation referenced above (where a party stipulates to the imputed income) may occur when a party’s income is difficult to verify through regular methods (e.g. the party doesn’t receive regular paychecks) rather than when a party is purposely unemployed or underemployed. Or it could occur where a party is capable of making income but isn’t for some reason (e.g. he/she chooses to be a stay-at- home parent). “Stipulates” in this context means that the party agrees to an amount of income being imputed to him or her.

Filing bаnkruрtсу will nоt diѕсhаrgе dоmеѕtiс ѕuрроrt оbligаtiоnѕ. The Bаnkruрtсу Abuѕе Prеvеntiоn аnd Cоnѕumеr Prоtесtiоn Act оf 2005 рriоritizеѕ thе payment of alimony аnd сhild ѕuрроrt – еvеn оvеr thе рауmеnt оf back tаxеѕ. During a bankruptcy, thе “аutоmаtiс ѕtау” ѕtорѕ thе соllесtiоn оf debt temporarily. Hоwеvеr, thiѕ dоеѕ nоt аррlу tо dоmеѕtiс ѕuрроrt рауmеntѕ.

Yes, in some cases, bankruptcy can indeed eliminate back taxes owed to the IRS as well as to state governments.  However, the process is neither easy, nor automatic.  If your taxes don’t qualify for discharge and you file for bankruptcy, the IRS will just be waiting for you once you come out of bankruptcy.  The IRS has ten years to collect tax bills, penalties and interest from you – under normal circumstances.  While filing for bankruptcy does indeed put a temporary halt to IRS collections, the IRS will add on the 4-5-month-long bankruptcy period plus an additional 180 days to their collection period. In short, a bankruptcy filing that doesn’t discharge tax debts will give the IRS almost an entire extra year to hound you for back taxes.
So then, when can back taxes ever be eliminated through a bankruptcy filing?  It comes down to timing, and there are three basic conditions or rules that must be met:

Rule #1: The Three-Year Rule
A tax debt must be three years old from the date it was due – and not just from the date you filed.  Tax returns are due for most US citizens on April 15th of each year. This means that your 2017 taxes will not be eligible for discharge until April 15th of 2021. This is because your 2017 taxes weren’t technically due until April of 2018 and you must calculate the three-year period from that point forward.

Rule #2: The Tax Must Have Been Assessed More Than 240 Days Ago
This rule will likely be the easiest of the three to satisfy.  It requires that at least 240 days before you file paperwork with the court, the IRS must have determined that you owe the taxes you are trying to expunge in bankruptcy. It is important to note that an offer in compromise will delay the 240-day rule while it is pending plus add an additional 30 days.

Rule #3: Your Tax Returns Must Have Been Filed for the Two Years prior to Bankruptcy
This is probably the trickiest condition of the three to meet because the government knows that most who fall behind on their taxes have also neglected to file tax returns. Requiring that the actual returns be filed for two years prior to the bankruptcy prevents taxpayers from filing their delinquent returns one day and then bankruptcy the next.

How About Tax Liens?
A tax lien is a public filing that informs the public that you owe the IRS money. Filing for chapter 7 bankruptcy will eliminate your personal obligation for certain tax debts, but not for tax liens that have already attached to your property.  Any lien that has recorded prior to your bankruptcy will survive the filing intact.

Yes.  Before filing for bankruptcy, debtors are now required to meet with a credit counseling agency on at least two occasions; first before filing a bankruptcy case and then after filing.  The idea is that by requiring counseling, debtor will be more informed regarding both their finances and also corrective options. Theoretically, counseling should also present debtors with alternatives to bankruptcy in the likely event they haven’t been informed about other options.

With the new law requiring credit counseling also came the “means test,” which determines whether a person is eligible to file for Chapter 7 bankruptcy. Before the new law, a debtor could choose for himself whether he wanted to for a Chapter 7 or a Chapter 13 case. But now there are a series of requirements and calculations that determine which Chapter the debtor will fall under. In order to qualify for Chapter 7 bankruptcy, for example, a debtor must fit still the requirements after assessment of family size, household income, expenses, and even inflation.

While these changes may seem to make filing for bankruptcy a little more complex, Millar Walker Attorneys and Counselors have experienced bankruptcy lawyers who will be able to help you understand your options and how the process of bankruptcy works. Bankruptcy can still be an incredible solution for many struggling debtors, but new tax laws have made the assistance of an attorney more essential in this process than ever.

No – not true.  In fact, nothing could further from the truth. If you’re struggling to pay your bills and it feels like the mountain of debt just keeps getting bigger, you will very likely qualify – at least, unless you’ve filed bankruptcy in the past couple of years (and even then you still may have options).  Contact Millar Walker Attorneys and Counselors today to confirm whether you would qualify!

While it is true that bankruptcy records are a matter of public record, unless you’re a famous celebrity, social media and news outlets have no incentive whatsoever to share your information. Why?  Quite simply because thousands of people file bankruptcy every single day. So unless your acquaintances review local bankruptcy filings on a daily basis, the only people (besides those in the court proceedings) who will ever know about it are those you decide to tell and those who review your credit report.

This is probably the most common myth surrounding bankruptcy – but also one of the falsest. In fact, both Chapter 13 and Chapter 7 bankruptcy laws have multiple “exemptions” which allow you to keep most if not all of your possessions (especially with Chapter 13 which is even more flexible). If you wish to retain any property secured with a loan, you can continue making your payments as long as the asset fits within your exemptions. The exemptions cover a long list of assets – your house, any rental properties, land, vehicles, furniture, jewelry, benefits, life insurance claims, worker’s comp, retirement plans, and many others.

Of course, you will!  You can own anything you desire (and can afford) – even after you have filed for bankruptcy.  Bankruptcy laws allow you to hold your possessions and monetary assets.  And there are no restrictions on you earning as much as you can or investing in ventures, etc.

The bankruptcy will be reported on your credit report for the next 10 years – this is true. But this does not, in and of itself, ruin your creditworthiness. In fact, many people actually have better and stronger credit the year after filing their case than they did before!  The reason for this is because when you file for bankruptcy, you are cleared of most of your debts. This means you should be able to save more and also pay your bills on time. And of equal importance, when you file for bankruptcy, your debt-to-income ratio improves!  In many ways, you are now seen as more favorable to a lender who sees you as debt-free and thus ideal to lend money to.  Believe it or not, you may actually increase your chances of receiving credit after you file for bankruptcy!

Bankruptcy isn’t able to eliminate all taxes due, but there are a series of rules that can be applied to judge whether or not this is possible. Generally speaking, income or sales taxes that are more than three years old can be waived, but the rules are quite complex so contact Millar Walker Attorneys and Counselors to speak with a bankruptcy attorney who can help you review all of your options.

Bankruptcy has a powerful provision called an automatic stay.  It immediately halts all collection efforts on most types of lawsuits, including phone calls from creditors, lawsuits, garnishments, repossessions, and even foreclosure. This protection will last the entire duration of your case, and usually becomes permanent on the related debts once your case is finished.

There is no law that dictates that a married couple must file bankruptcy together.  However, if the spouses have signed jointly for debt, then it may be sensible for them to file together. If they don’t, co-signed loans will still affect the spouse that did not file for bankruptcy. When a couple does decide to file together, this is called a joint filing – one single case rather than two separate cases.  Naturally, filing jointly could save money on attorney and court fees versus filing two separate case.

There is NO law that dictates that a married couple must file together. However, if partners have signed (and are thus liable) for unmanageable debts, then it may be sensible for them to file together. Otherwise, co-signed loans will still affect the individual that does not file for bankruptcy. When a couple does decide to file together, this is called a joint filing – a single case rather than two separate cases, which can save money on attorney and court fees.

Sometimes, yes.  Depending on your particular situation (the chapter and outcome of the previous case), you are allowed to re-file for bankruptcy anywhere between immediately and up to 8 years.

Many consumers are confused by the difference between the two actions. Basically, when you file bankruptcy and surrender a home, you are essentially giving the property back to the lender.  But when a loan servicer forecloses on your home due to non-payment, they are taking the home from you.

The primary difference between surrendering a home and foreclosure is the possibility of owing money after the sale in the case of foreclosure.  When a home is surrendered, a foreclosure will ensue — but only as a means of clearing title so the bank can sell the home.  But in a foreclosure that takes place outside the context of a surrender, the borrower can end up owing the difference between the mortgage amount and the sale price the home draws at the foreclosure sale.

Although the law varies somewhat from state to state, the basic structure of a mortgage is fairly consistent nationwide. Mortgages are security agreements whereby the collateral for the loan (your home) can be seized by your service provider in the event payments are not made.

When you sign loan documents to finance the purchase of your home, you agree that your lender and/or subsequent service provider is authorized to take your home from you in the event you do not comply with the terms of the loan.  The most important term being the making of regular payments of principal and interest.  If you fall behind on your mortgage payments, your lender may foreclose pursuant to your agreement and if successful, would become the new owner of your house.

But what happens if you file for bankruptcy? The big benefit of Chapter 7 or Chapter 13 bankruptcy, other than typically having to pay back your debts for pennies on the dollar, is that it activates the automatic stay as soon as you file. The automatic stay puts an immediate stop to collectors, including any collection lawsuits, wage garnishments, and… foreclosure. That being said, in the end you may still choose to surrender your home during bankruptcy to pay back your debts, depending on your state’s exemption laws and how much equity you have in your home.

It is important to understand that your lender will be required to foreclose on your home in order to clear title from your name — even if you have surrendered it through bankruptcy. Your property will be sold at auction and in order for your lender to convey good title to a third-party purchaser, they must acquire the title themselves first. Your credit report also will likely reflect the foreclosure.
The fact that a foreclosure will take place even after a home has been surrendered is where the similarities end between surrender and foreclosure. Surrendering a home in bankruptcy extinguishes your liability on the loan. You throw the keys back to your lender and you’re done. Your lender cannot come after you personally for what once was a full recourse loan.

By contrast, in a foreclosure setting, your lender will take your home and sell it to the highest bidder. If the sale price is enough to satisfy the outstanding balance owed on the mortgage, you will not owe money after foreclosure (be careful as some loan documents call for borrowers to pay lender attorney fees associated with the foreclosure). If your home sells for less than what is owed on the mortgage, you will owe the difference.

In some cases, post-foreclosure, your lender will sue for the shortfall in an attempt to establish a deficiency judgment. Once judgment has been entered, your lender can then attempt to come after your non-exempt assets in satisfaction of the debt.

A foreclosure or short sale will typically reduce your credit score between 85 and 160 points, while a bankruptcy may knock it down between 130-240 points. However, bankruptcy can begin to look attractive depending on the accumulation of debt. Missed payments alone can drop a credit score 75 points.