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A patent is a right granted to an inventor by the federal government that permits the inventor to exclude others from making, selling or using the invention for a period of time. The patent system is designed to encourage inventions that are unique and useful to society. Congress was given the power to grant patents in the Constitution, and federal statutes and rules govern patents.
The U.S. Patent and Trademark Office (USPTO) grants patents for inventions that meet statutory criteria. The following provides a general overview of what a patent is.
Patent Categories
There are three different kinds of patents: utility patents, design patents and plant patents.
1. Utility Patents: The most common type of patent, these are granted to new machines, chemicals, and processes.
2. Design Patents: Granted to protect the unique appearance or design of manufactured objects, such as the surface ornamentation or overall design of the object.
3. Plant Patents: Granted for the invention and asexual reproduction of new and distinct plant varieties, including hybrids (asexual reproduction means the plant is reproduced by means other than from seeds, such as by grafting or rooting of cuttings).
For an invention to qualify for a patent, it must be both “novel” and “non-obvious.” An invention is novel if it is different from other similar inventions in one or more of its parts. It also must not have been publicly used, sold, or patented by another inventor within a year of the date the patent application was filed. This rule reflects the public policy favoring quick disclosure of technological progress. An invention is non-obvious if someone who is skilled in the field of the invention would consider the invention an unexpected or surprising development.
Naturally occurring substances and laws of nature, even if they are newly discovered, cannot be patented. Abstract principles, fundamental truths, calculation methods, and mathematical formulas also are not patentable. A process that uses such a formula or method can be patented, however. For example, a patent has been granted for an industrial process for molding rubber articles that depends upon a mathematical equation and involves the use of a computer program.
A patent cannot be obtained for a mere idea or suggestion. The inventor must have figured out the concrete means of implementing his or her ideas in order to get a patent. A patent also will not be granted for an invention with no legal purpose or for an unsafe drug.
Usefulness
An inventor applying for a utility patent must prove that the invention is useful. The invention must have some beneficial use and must be operable. A machine that will not operate to perform its intended purpose would not be called useful, and therefore would not be granted a patent. A useful invention may qualify for a utility patent only if it falls into one of five categories: a process, a machine, a manufacture, a composition of matter, or an improvement of one of these.
A process is a method of treating material to produce a specific physical change in the character or quality of the material, generally an industrial or technical process. A machine is a device that uses energy to get work done. The term manufacture refers to a process in which an article is made by the art or industry of people. A composition of matter may include a mixture of ingredients or a new chemical compound. An improvement is any addition to or alteration of a known process, machine, manufacture, or composition.
What is Patentable?
These categories include practically everything made by humans and the processes for making the products. Examples of things that are patentable include:
• Computer software and hardware;
• Chemical formulas and processes;
• Genetically engineered bacteria, plants, and animals;
• Drugs;
• Medical devices;
• Furniture design;
• Jewelry;
• Fabrics and fabric design; and
• Musical instruments.
Patent Protection
Unlike a copyright, a patent does not arise automatically; an inventor must apply for a patent. The inventor must apply within one year of publicly disclosing the invention, such as by publishing a description of the invention or offering it for sale. An inventor, or his or her attorney, generally makes a preliminary patent search before applying for a patent to determine if it is feasible to proceed with the application. The application and a fee are submitted to the U.S. Patent and Trademark Office, where it is reviewed by a patent examiner.
If a patent is granted, the inventor must pay another fee, and the government publishes a description of the invention and its use. Only a patent attorney or patent agent may prosecute patents before the PTO. Before a person may be licensed as a patent attorney or patent agent, she must have a degree in certain technical or scientific fields.
Utility and plant patents last for 20 years from the application date; design patents last for fourteen years. If the owner of a utility patent does not pay maintenance fees, the patent will expire earlier. After a patent expires, the invention becomes public property and can be used or sold by anyone. For example, after the patent on Tylenol expired, other pharmaceutical companies began producing a generic version of the drug.
Infringement
If an inventor thinks someone has used his or her patented invention without permission, he or she may bring a lawsuit against the infringer. If the court agrees, it may award the patent holder costs, attorney’s fees, damages in an amount equal to a reasonable royalty, and an injunction (an order prohibiting another person from infringing the patent). An action for infringement can be time-consuming and costly, so infringement cases often are settled.
An act is simply a movement of a part of the body. The criminal’s finger pulls the trigger on the gun or her hand takes a wallet out of the victim’s pocket. At this point we are not concerned with the consequences of the act–the death of the victim or the value of the wallet–but only with the defendant’s physical act itself. It’s enough that there be an act and that the defendant voluntarily performed it.
The element of voluntariness is essential. Suppose Tony Stark is quietly peeling an apple when he suddenly has an epileptic seizure. During the seizure, an involuntary muscle contraction causes his hand, which is holding the knife he was using, to jerk out, slashing the throat of Louis Lane, who was sitting next to him. Or suppose one night Tony gets out of bed and, in an unconscious, sleepwalking state, picks up a knife and slashes his wife to death. Has Tony committed a criminal act in either case? The law says no, because Tony’s conscious mind has not directed a voluntary act.
Sometimes it is argued that we can’t deter involuntary acts, so there is no point in punishing them; the threat of a criminal sanction cannot prevent the epileptic from having a seizure. But that’s not exactly right. We can’t prevent the somnambulist from sleepwalking, but we can provide a disincentive for him to be in potentially dangerous situations when he might do so; perhaps the threat of criminal punishment will encourage sleepwalkers to keep their bedroom doors locked and keep sharp objects out of reach, or even to seek treatment for the affliction. An even more important reason to require a voluntary act is retributivist. Criminal punishments are exacted because the criminal has done something wrong in a moral sense. Only where the criminal has chosen to commit harm–that is, has acted voluntarily–is it just to punish him.
Voluntariness as an issue arises in a few cases more common than sleepwalking. Many statutes punish simple possession, of drugs or of burglary tools, for example. Even if the statute doesn’t say so expressly, this means voluntarily coming into possession or maintaining possession. If someone slips a packet of heroin into your pocket and the police immediately thereafter find it, you are not guilty of possession of an illegal drug because you did not possess it voluntarily. It is useful for the government to be able to prosecute people for possession, though, because it is usually easier to prove possession than use, purchase, or sale. If you have the drugs and it is reasonable to infer that you either acquired them voluntarily or knew you had them for a sufficient period of time in which you had a chance to get rid of them, it is reasonable to infer that you voluntarily kept the drugs and to punish you for having them.
The voluntariness requirement can also be met if the criminal voluntarily performed some but not all of the steps necessary to complete the offense. Suppose a deeply fatigued truck driver continues to drive at the end of a very long day, falls asleep at the wheel, and runs over a pedestrian. Has the driver committed a criminal homicide? Running over the pedestrian was not a voluntary act, but continuing to drive while tired was, so the act requirement has been satisfied. The issue then becomes the degree of homicide. The driver might argue that she should only be liable for negligent homicide (manslaughter) because she didn’t intend to hit the pedestrian, even though she may have been reckless in driving in the first place.
The common rationale of excuse defenses— to exculpate the blameless— gives rise to common requirements: a disability or reasonable mistake must cause an excusing condition. The disability and mistake excuses generate the same conclusion of blamelessness in different ways. In disability excuses, the disabling abnormality, such as involuntary intoxication, sets the person apart from the general population. The mistake excuses seem to do the opposite: they argue that the person should not be punished because in fact he or she has made a mistake that anyone else would have made in the same situation. That is, the person’s mistake was reasonable; any reasonable person would have made the same mistake.
Mistake Excuses
Several types of mistakes are commonly allowed as grounds for a general excuse defense (as distinguished from mistakes that provide an absent-element defense by negating an element of the offense). Reliance on an official misstatement of law and mistake due to the unavailability of a law are two such general mistake excuses. A mistake about whether one’s conduct is justified also is commonly recognized as an excuse. (A fourth commonly recognized mistake excuse is reliance on unlawful military orders, essentially a special subclass of a mistake about a justification excuse, where the justification is the public authority of lawful military orders.)
Mistake with Regard to Justification
Every jurisdiction recognizes a defense for some form of mistake with regard to a justification. The often unpredictable and confrontational nature of justifying circumstances makes such mistakes particularly understandable. This is especially true for defensive force justifications, where the person must make the decision to act under an impending threat of harm. Most jurisdictions provide the mistake defense by including the word believes or the phrase reasonably believes in the definition of the justification defense (or by giving a defense if the person acts with a proper justifying “purpose”). This means that a person will get the defense if he or she believes that the conduct is justified, even if it is not. A popular alternative means of providing an excuse for mistake with regard to a justification— and one with some advantages— is to define justifications objectively, without the “believes” language, and to provide a separate general excuse defense for mistakes with regard to a justification.
Disability Excuses
Similarly, disability excuses share a common internal structure: a disability causes a recognized excusing condition. The disability is an abnormal condition of the person at the time of the offense, such as intoxication, subnormality, or immaturity. Each is a real-world condition with a variety of observable manifestations apart from the conduct constituting the offense. It may be a long-term or even permanent condition, such as subnormality, or a temporary state, such as intoxication, somnambulism, automatism, or hypnotism. Its cause may be internal or external, as in coercion from another person (duress).
Having a recognized disability does not itself qualify a person for an excuse, for it is not the disability that is central to the reason for exculpating the person. A person is not excused because he or she is intoxicated, but rather because the effect of the intoxication is to create a condition that renders the person blameless for the conduct constituting the offense. The requirement of an excusing condition, then, is not an element in de pen dent of the person’s disability but rather is a requirement that the person’s disability cause a particular result— a particular exculpating mental or emotional condition in relation to the conduct constituting the offense.
Involuntary Intoxication
The involuntary intoxication excuse has a disability of intoxication and the excusing condition— a cognitive or a control dysfunction.
Duress
The duress defense typically requires that the person committed the offense while under coercion to do so. The defense does not require, however, that the coercion cause in the person a “substantial lack of capacity to conform his conduct to the requirements of law” or another similar description of the degree of control impairment that the excusing conditions involuntary intoxication require. Instead, the duress defense requires that the person’s disability, which is in this case the state of coercion, come from a particular cause: a threat of force that “a person of reasonable firmness … would have been unable to resist.” The seriousness of the threat is to be assessed against the kind of threat that would coerce “a person of reasonable firmness in [the actor’s] situation”.
Nonexculpatory Defenses
Nonexculpatory defenses, which give a defense even though the person’s conduct may be wrongful and the person blameworthy, include such defenses as statutes of time limitation; diplomatic immunity; judicial, legislative, and executive immunities; immunity after compelled testimony or pursuant to a plea agreement; and incompetency to stand trial. Each of these forms of immunity furthers an important societal interest. Overriding nonexculpatory public policy interests also serve as the basis for many constitutional defenses. The double-jeopardy clause of the Fifth Amendment, for example, may foreclose the trial of even a blameworthy and convictable offender by barring the state from making repeated attempts to convict him or her. Notions of procedural fairness are said to demand that the state not subject a person to the embarrassment, expense, and ordeal of trial more than once for the same offense, nor compel him or her to live in a continuing state of anxiety and insecurity.
Dismissals based on the operation of the exclusionary rule or on prosecutorial misconduct also may be nonexculpatory in nature, especially if the dismissals are unrelated to the reliability of the evidence in the fact-finding process. The public policies served by nonexculpatory defenses may be as broad as protecting all members of society from unlawful searches, or they may narrowly focus on assuring fairness in the treatment of individual defendants.
The nonexculpatory entrapment defense furthers societal interest in deterring police misconduct. Where a police officer or agent has had some hand in having a person commit an offense, the person may be entitled to an entrapment defense. The United States is one of the few countries that recognize such a defense, and within the United States, jurisdictions disagree over how the defense should be formulated. “Objective” formulations of the entrapment defense focus on the impropriety of the police conduct. The defense is available, even if the person was predisposed to commit the offense, if the police conduct is such that it “creates a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.” “Subjective” formulations of the entrapment defense focus on the degree to which the entrapping conduct, rather than the person’s own choice, is responsible for commission of the offense. Under this formulation, the defense is given “because the wrongdoing of the officer originates the idea of the crime and then induces the other person to commit the offense when the other person is not otherwise disposed to do so.”
The objective formulation is clearly nonexculpatory: it uses the threat of acquittal of the defendant as a means of deterring improper police conduct. The blameworthiness of the defendant is not relevant. A subjective formulation, in contrast, might appear to be an excuse similar to duress that exculpates the defendant because he or she is coerced to commit an offense. However, the subjective formulation does not require that the inducement to commit the offense be one that a “person of reasonable firmness would have been unable to resist,” as the duress excuse does. Instead, it gives the defense even if we could well have expected the defendant to have resisted the temptation. The subjective formulation is a nonexculpatory defense like the objective formulation, but one that seeks to exclude career criminals from the defense in order to limit the costs it accrues in trying to deter overreaching on the part of police.
If you or someone you know has been charged with a criminal offense, your first course of action should be to get in touch with an experienced Draper Utah criminal defense lawyer. The lawyer will fight to get justice for you.
Commercial liability is a type of insurance policy that provides coverage to a business for bodily injury, personal injury and property damage caused by the business’ operations, products, or injury that occurs on the business’ premises. Commercial general liability is considered comprehensive business insurance, though it does not cover all risks a business may face. Understanding the risks your business faces and having the right CGL coverage to protect you from those risks is an important step in safeguarding your operations.
For instance, insurers might not cover a juggler who specializes in throwing five chainsaws in the air while ice skating. It’s true. Insurance companies won’t exactly be lining up to cover that guy.
But usually, an insurance company will have no problems with the kind of work your business does. As long as you don’t work in high-risk industries and don’t have a history of being sued, insurance companies are likely to insure your business.
Do I need CGL insurance?
Some small business owners don’t know they need liability insurance, or think it’s too expensive. The truth is, no matter how small your business is—it’s still at risk for various forms of liability. In fact, the smaller your business is the worse the implications of a liability claim can be. At the bare minimum, every business should have a standard CGL policy to protect them from risk and loss. Some of the consequences of operating without CGL insurance may include:
1. If you’re found legally liable for bodily injury or property damage to a third party, your company may have to pay the costs associated with the legal process and any financial losses that stem from the lawsuit.
2. Your reputation with your clients/ customers could be severely damaged. Consumers need to feel a sense of trust with companies and brands. A lawsuit could shatter that sense of trust if handled poorly.
This type of insurance typically covers “the big three”: people, property, and personnel. These are the most common – and largest – areas of exposure for any business, and without the proper policy in place, you are opening yourself up to major financial losses if the worst should happen.
People – If an incident occurs on your premises that involves a third party, whether they incur bodily harm or damage to their personal effects, commercial insurance will normally help defer the costs of any related repairs, replacements, or medical bills.
Property – As a business owner, chances are you possess a fair bit of specialized gear, equipment, and/or technology. Not only does commercial insurance cover the unique belongings that keep your business running, but it can also protect a host of other supplies, furniture, and more.
Personal – Your employees deserve to be taken care of in the event of a workplace injury. As part of your commercial insurance package, a workers’ compensation policy can dispense funds to help cover the cost of a staff member’s medical care after an on-the-job incident.
What Coverage Do I Need in My General Liability Insurance Policy?
Fortunately, businesses have access to a wide range of insurance types to protect them against these dangers. Here are some insurance types that a business must have in place as soon as possible.
• Professional liability insurance.
• Property insurance.
• Workers’ compensation insurance.
• Home-based businesses.
• Product liability insurance.
• Vehicle insurance.
• Business interruption insurance.
Utah Business Insurance
In the state of Utah, agriculture dominates the business industry, as the state focuses on cattle, calves and hogs, dairy products, hay, and greenhouse and nursery products.
General liability insurance in Utah is carefully planned to provide security and protection for small business owners from financial burdens that can occur from irresponsible acts, omissions, or both, caused by the employer or their employees that may result in physical injury or property damage. Contractual liabilities, liabilities from products sold, and accidents on the premises of the business are some of the more common types of exposures covered under general liability insurance. The injury or damage might be a result of negligence and accidental. General liability insurance for Utah businesses may be one policy or can be part of a package policy.
is a type of security coverage for different types of Utah-based commercial property, such as, essential documents, building, materials, equipment, furniture, inventory, and personal property. Commercial property insurance provides protection against different types of perils, including windstorm, hail, explosion, fire, natural disasters, theft, and lightning strikes. A variety of professional industries feel more protected with this sort of insurance, including retailers, not-for-profit entities, manufacturers, and businesses related to the service industry.
Business Liability Costs
Liability insurance costs in Utah can vary widely between insurance companies. Liability insurance rates are generally factored using a) the gross sales for the business, b) the gross payroll for employees and owners, c) the square footage of the premises and d) any sub-contractor exposures (if applicable). Insurance rates are developed at a rate per $1,000 utilizing one or more of the above factors.
A typical small business in Utah can expect to pay anywhere between $300 and $5,000 annually for their general liability policy. The final cost of liability coverage from one business to the next will vary significantly based on the SIC code or the insurance company’s own classification system for GL rating. Some additional factors used to develop insurance costs include the nature of your business, your physical location, prior claims experience, and your years in business.
There are many different types of policies to consider that offer coverage beyond the core needs of most businesses.
Read on to learn a little more about the commercial insurance coverage that is available to you and your business.
Third-Party Injuries
If, for example, a client slips on a wet floor at your business and is injured, their medical expenses are your responsibility. (Yikes.) Depending on the severity of the injury, the business owner could be sued to pay for the client’s:
• Medical bills
• Physical therapy/rehabilitation costs
• Lost wages while they’re out recovering
These lawsuits get expensive quickly, which is why most business owners carry general liability insurance. This policy can pay for legal expenses related to third-party injuries.
Employee Injuries
Occupational injuries and accidents are often both unpredictable and costly. When employees are hurt at work, small business owners need worker’s compensation insurance to cover employee medical expenses and partial lost wages.
Many states require employers to purchase this policy as soon as they hire their first worker. However, even if it’s not required by law, it’s still a good idea for businesses to protect employees and business operations with this coverage. Otherwise, injured employees could sue to pay for their medical bills.
Breach of Contract
A business contract can cover a wide range of business operations. Like any contract, business contracts are enforceable by law so long as they contain all the elements of a valid contract (such as offer, acceptance, consideration, signing, etc.). Some business matters that are commonly the subject of a business contract may include:
• Long-term agreements (such as deals involving cyclical shipments over many years).
If a business signs a contract with a client to provide services, and then doesn’t make good on that contract, they could be on the receiving end of a lawsuit. It could be sued for:
• Failing to make payments for goods;
• Failing to deliver goods after payment was received;
• Violating confidential or private business information (such as a trade secret).
Although commercial liability insurance can cover lawsuits over professional errors, it might not cover breach of contract. Coverage varies from carrier to carrier. So, you’ll want to check with an insurance agent to confirm if a specific liability insurance policy can address this kind of lawsuit.
Discrimination and Wrongful Termination
Discrimination lawsuits can take many forms, but most often, they involve employees are who face discrimination on the basis of their:
Running a successful business is not without its risks. Most business owners are proud of the work they do and the property they utilize to get the work done. Unfortunately, nature is not always so understanding. Every year,business owners have their business property damaged or lost as a result of events completely beyond their control.
Commercial Property Insurance is for any business that has physical assets. Although your building or other business property may not be making money for your company, its loss could still be very costly.
This insurance type is all about insuring your building, the physical assets inside of that property, and many other types of physical objects owned and used by your business. Whether that property is small office furniture or a large warehouse, any property your business owns should be protected.
Seek the assistance of an experienced Provo Utah divorce lawyer if you have decided to divorce your spouse. Once you decide to divorce your spouse, “be prepared for a fight”. You shouldn’t be surprised if your spouse becomes angry about the divorce because dissolving a marriage can bring out the worst in people. Some pre-divorce financial planning can ensure that your interests, and those of your children, are well-protected. For starters, get copies of the statements of all of your joint financial obligations, including those accounts with brokerage houses, credit card companies and other debtors. Also, secure insurance policies, bank and loan statements, pension plan documents, mortgage payments, recent tax returns and estate planning information.
Depending on how you believe your spouse will react, it may be best to keep your plans for divorce under wraps until you have all of the information you need to support your case. If you fear your spouse will try to take money from your accounts or hide important papers, you can ask a judge to intervene on your behalf. On the other hand, you don’t want to be antagonistic either. A divorce fight means that “both of you will be living your lives by your lawyers’ rules and that’s not a good thing.
When you’re compiling information, take inventory. Early on, you’ll need to determine what things you want to take with you when you leave the marriage, unless it’s already been predetermined in a prenuptial or postnuptial agreement. The two basic legal terms for dividing property are equitable distribution and community property. Under equitable distribution, assets, earnings and debts are divided “fairly”–although this doesn’t necessarily mean a 50-50 split. Two-thirds of the assets are often given to the spouse with the higher earnings and the remaining one-third to the other spouse
“Courts always give the children to mothers” is a belief expressed by many fathers. At one time, courts did show a preference for maternal custody. However, most, if not all, states including Utah now have gender-neutral custody laws in which mothers and fathers are equal before the law. The criterion now used by courts is “the best interest of the child” and custody is determined on a case-by-case basis.
The primary caretaker criterion explains why mothers are still more likely to be granted custody than are fathers. Despite the prevalence of two working parents in the home, studies are continuing to find that mothers assume most of these parenting responsibilities, and fathers usually play a secondary role.
Although primary caretaking was the most common factor stated in judicial custody decisions in the nineties, it is certainly not the only criterion courts use. The broader criterion, the best interest of the child, considers what a particular child needs at this time, given the totality of the current circumstances. The primary caretaker is usually only one consideration, albeit a very important one. Other considerations are likely to include a child’s individual needs, attachments, and emotional ties; parents’ emotional stability, parenting competence, and life style; parents’ willingness to share the child; parents’ ability to provide continuity with school and community; domestic violence and abuse issues; and substance abuse issues. In Utah the courts tend to consider the best interest of the child when deciding a custody application.
The special context of divorce raises other interesting questions. Decisions to be made in the best interests of children are highly subjective in such situations and require complex reasoning skills to conceptualize, let alone resolve. In some custody cases, you may need the services of an expert mental health professional to provide expert testimony. Speak to your Provo Utah divorce lawyer to know more.
The mental health professional as a skilled investigator or evaluator is especially valuable to the courts when abuse or neglect has been charged. Mental health professionals can also assist the court by pointing out what is known or not known about psychological factors in the effects of various custody arrangements. Before beginning evaluation of a child custody matter, it is critical that all parties involved understand the ground rules with respect to privacy and confidentiality.
A competent mental health professional will recognize the potential ethical problem of the parent who arrives for evaluation and during the sessions says, “Don’t tell my spouse, but . . .,” then proceeds to disclose some significant material point on which a decision might turn. In anticipation of such problems, some clinicians ask all parties to sign reciprocating waivers prior to the start of the evaluation. The waivers specify from the outset that both parents and their attorneys will have access to any information disclosed to the evaluator. A matter of great importance and great controversy for clinicians who function as evaluators in child custody disputes is whether they should address or testify to “the ultimate legal issue” in their work. That is to say, should the evaluator make an actual custody recommendation to the court or simply provide a listing of facts and opinions for the judge to consider? Child custody cases rarely involve questions of actual “parental fitness” in the sense that one or the other is grossly unfit to care for the child. Rather, the more usual issue is that of which parenting arrangement will serve the best interests of the developing child. In such instances, the term best interests is a moral or legal concept, as defined by state law, not a psychological concept. There is general agreement that mental health professionals in this role should conduct thorough and wide-ranging evaluations, point out strengths and weaknesses to the court, and help the court understand what is known or not known in the existing research or clinical literature.
Evaluation in such cases can become quite complex. Cases may involve a request for consultative input by parents in an amicable divorce, state intervention in cases of abuse or neglect, termination of parents’ rights, contested adoptions, or charges and counter charges regarding alleged sexual abuse. It is critical that the clinician who agrees to take on the evaluation of such a case be knowledgeable regarding both legal and clinical aspects of these types of cases. In addition, it is important to be mindful of the appropriate role boundaries. In particular, one should take care not to slip from the role of evaluator to that of intervenor (i.e., therapist). What factors ought to be considered in making child custody decisions? Are race, religion, or parents’ sexual conduct valid factors to consider in making a custody decision? The fact is that such decisions vary widely both regionally and according to local preference. In some cases, psychological factors have been cited as bases for such decisions, and mental health professionals are likely to be called as expert witnesses in future cases on similar issues. In general, however, religion and parents’ sexual preferences have not been deemed proper bases for making such decisions.
Utah has mandatory mediations requirements. Parties to a divorce proceeding in Utah must pay for and attend a mediation conducted by a court appointed mediator. Mediation is rapidly growing in popularity as an alternative to adversarial contests in divorce and child custody disputes. Divorce mediation was essentially the starting point for the mediation movement in the early 1970s. Divorce mediation confronts one of the most difficult conflicts that exist on earth, the breakdown and ending of the intimate, complex marriage relationship. Mediation is not really new. It is as old as the new testament and perhaps older. The Greek word for mediate means to stand between. People have always known that standing between two people in conflict can be helpful. What is new is that mediation has been rediscovered as a replacement for many of the present methods of addressing adversarial conflict. The mediation method encourages cooperating with and helping your adversary.
This new way of thinking is gaining a foothold, not only in conflict resolution theory, but also in business. Traditional beliefs about how divorce should occur are also rapidly changing, giving rise to the increased use of divorce and family mediation. Fault (i.e., who caused the marital breakdown) is no longer a factor to consider in most states. In almost all states, there is an increase in the number of couples experimenting with equal time sharing of the children. The traditional divorce, which awarded custody to mothers and made dads visitors to their own children, is no longer the status quo. Instead, couples are sharing their parenting responsibilities equally after the divorce and competition for physical and legal custody has become less important. How each parent can get assistance and support from the other parent is more important than who will have custody. Because both parents usually work full time to survive financially, they realize that they need to cooperate to cover all the emotional, physical, and financial needs of their children.
Consult with an experienced Provo Utah divorce lawyer to know how you can get visitation rights.
Never assume that because you are the non-custodial parent, the court will automatically grant you full custody rights. Even when there is joint physical custody, visitation is an important issue. The key to a continued parental relationship and to a separation that is less stressful for the children is advance planning. Emergency restraining or protective orders often deal with visitation in a general way, and what seems temporary often has a way of becoming permanent under law. Judges do not like to force children through too many changes in residence or lifestyle.
Shared parenting or joint custody would be the most equitable solution for divorcing couples. Both parents should contribute to the emotional and financial welfare of the child. The court will generally adhere to any agreement the two parties reach, provided it won’t harm the child. Aside from custody and visitation issues, your arrangement should also stipulate which parent can claim the children as tax deductions. Once child custody issues are resolved, start planning for a brighter future.
When you are fighting a divorce case, you need an expert to assist you with your legal battle. Don’t hire the first divorce lawyer you come across. Hire the best. Hire an experienced Provo Utah divorce lawyer. Diligence is an obligation of lawyers demanded by the general law. Divorce lawyers must both be skilful and must exercise the skill they have. The law reports contain many examples of lawyers being liable to clients for lack of competence, and there are also cases where they have been held to be liable to third parties where a client’s instructions have been negligently effected. Indeed, lack of competence might be raised collaterally as in the very exceptional cases where a conviction will be quashed because of the failure of the lawyer adequately to advise or act.
Lawyers may be liable for wrongful advice, albeit that the questions are obscure and difficult. Clients must be advised of the legal consequences of any step which they propose to take, about the alternative remedies available, and that any particular step ought to be taken without delay. As with others providing services, lawyers must act with reasonable competence and skill. Diligence also arises in the general law in other ways. Lawyers must not misrepresent their competence. When handling moneys they must account and not make improper investments. Lawyers must not stray beyond the task their client has authorised; if a lawyer acts without authority he or she may not only be liable to the client but to third parties for breach of warranty of authority.
It goes without saying that an experienced Provo Utah divorce lawyer has a sound knowledge of the law.
An experienced Provo Utah divorce lawyer has a superior learning and knowledge of legal processes which clients cannot hope to acquire (without a substantial investment), even if they had the inclination. Lawyer control has an additional, functional justification, in suppressing antisocial behavior. To use a sociological term, lawyers are gate-keepers. They advise clients about how to behave lawfully, they screen out unjustified claims, they encourage the settlement of disputes, and they damp down abuses of the legal process.
Provo Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in Provo Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with legal separation. Divorce. Contested Divorce. Divorce Mediation.
Modifications of Divorce Decrees. Motions To Set Aside Divorce Decrees. Child Custody Evaluations. DCFS Issues. Child Custody. Child Support.
Alimony. Prenups. Post nuptial agreements. And Much More. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088United States
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Public work is all work, construction, alteration, repair or improvement that is executed at the cost of the state or any other local public agency. This includes, but is not limited to, demolition, remodeling, renovation, road construction, building construction, ferry construction and utilities construction.
Prevailing Wage is defined as the hourly wage, usual benefits and overtime, paid in the largest city in each county, to the majority of workers, laborers, and mechanics. Prevailing wages are established, by the Department of Labor & Industries, for each trade and occupation employed in the performance of public work. They are established separately for each county, and are reflective of local wage conditions.
Trades are generally surveyed every three years to determine the prevailing wage rates.
• Contractors and unions are surveyed to determine the wages and benefits that are being paid for each job classification. This list is established using industrial insurance, Intent and Affidavit filing, and licensing data.
• Prevailing wage rates are calculated for each job classification based on the survey data such as carpenters, electricians, laborers, etc.
• Largest City in County – Majority Wage: If more than one-half of all hours reported in the largest city in a county are worked at one wage rate, then that majority wage rate becomes the prevailing wage for the whole county.
• Largest City in County – Average Wage: If there is no majority wage rate, then a weighted average wage is computed using data from the largest city in a county. The weight attached to each wage is the total number of hours reported to be worked at that wage.
• County Average: If no hours are reported in a county’s largest city, then a weighted average wage is computed using countywide data.
Existing Wage Rate – Remains in Place: If no data is reported for the entire county, then the county’s old prevailing wage is retained as the new prevailing wage. The prevailing wage is the average or standard level of pay for different occupations in different areas.
They are determined by the Department of Labor. Let’s look at why prevailing wage rates are important and how they are calculated. The prevailing wage differs by occupation of course. The prevailing wage for surgeons in hospitals is much higher than it is for convenience store clerks. The prevailing wage also differs depending on where you live. It’s much higher some locations than it is in others. The minimum wage laws apply to all workers but some types of workers must be paid according to the prevailing wage as well in order to be in compliance with Department of Labor regulations. The list that follows shows which employers and jobs are affected:
• Federal Contracts – Under the Utah Act, contractors bidding for federal contracts must pay the prevailing wage as provided by the DOL to the workers on that job. The idea is to create a level playing field for those bidding and not allow someone to put in a low ball bid by low balling the workers on pay.
• Employers hiring skilled foreign workers under visa programs like the H1-B. These skilled immigrants are typically hired in STEM fields. Paying them the prevailing wage protects workers who could be replaced by the foreign workers if employers could pay them less.
• Employers may pay a sub-minimum wage to disabled workers. They must first survey local employers to determine a prevailing wage and pay the disabled worker a percentage of it based on productivity.
• State and local governments may also mandate a prevailing wage on their contracts. It’s important for an employer to get the requirements before bidding on these contracts.
How the Prevailing Wage is calculated
For Utah public works projects, all work over eight hours per day and or 40 hours per week is considered overtime. Hours over 8 in a day should be paid at 1.5 times the rate of regular hours. Double time is required and due for work beyond 12 hours in a workday or eight hours on the seventh day of a work week. For Prevailing Wage jobs or Public Work projects employers must pay the prevailing wage overtime rate as specified by the Department of Industrial Relations (DIR) in the appropriate prevailing wage determination for each job classification. In some cases, work in excess of seven hours is considered overtime. Employers are responsible for understanding and paying the appropriate rate at all times. Prevailing wage law requires that workers be paid overtime rates on weekends, regardless of the total hours worked for the week. These rates vary by classification and can be found in the DIR wage determinations.
Often the DIR specifies that Saturdays are 1.5 times regular pay (time and a half) and Sunday hours are double time regardless of other time worked during the week. Workers also may be entitled to overtime pay on recognized legal holidays. Not all holidays are recognized by all crafts. For a complete list of holidays recognized by the DIR check their web site. When there are multiple shifts or odd working hours, employers may be required to pay shift differentials. The rules are based on the craft. Generally, shift work is paid a higher rate and overtime begins after 7 or 7.5 hours. Sometimes workers perform multiple duties that may be in different classifications. For example, a worker may perform six hours of work in the Insider Wireman’s classification and then two hours of work as a painter. The worker must be paid six hours at the Inside Wireman rate and two hours as a painter. If the same worker puts in ten hours in one day, with five in the Insider Wireman’s classification and then five as a painter, the worker is due overtime pay. This pay must be calculated based on the rate for five hours of work as an Inside Wireman plus three hours at the standard painter rate and two hours at the painter overtime rate. Employers are required to pay overtime according to the prevailing wage determinations. Failure to comply can result in penalties, damages, accrued interest, legal fees and court costs. Having a prevailing wage takes how much you pay workers (and, since benefits are often included, how well you treat them) out of the equation. Contractors have to compete on the quality of their work, how quickly they can get the job done and how efficient their workers are, rather than on pricing alone.
Prevailing wage laws stand to preserve (often explicitly) the work unions have done in negotiating higher wages for employees. Since collective bargaining agreements are often taken into account when determining the prevailing wage, it’s usually comparable to what union workers make. That means union shops can usually compete on government projects, rather than losing out to contractors who pay their workers less than the union rate. Most types of employment that could be considered construction are bound by prevailing wage rates, at least when it comes to public works projects. Repair work is covered, too, as is demolition, remodeling, renovation and utilities work. Like many legal arguments, the dispute over prevailing wage laws doesn’t seem well-rooted in fact. Numerous studies have looked into this question, of whether prevailing wages drastically increase the cost of public projects, and by and large the answer has been clear: no, they don’t. But before we get to any studies, note that labor doesn’t account for most of a construction project’s cost. Even if prevailing wage laws do force wages to rise, that increase doesn’t have much effect on the total cost of a project. On average, 25% of a project’s cost will go to laborers, including payroll taxes (which necessarily increase the more you pay your workers) and benefits.
Increasing those wages by as much as 10%, according to the Economic Policy Institute‘s, would only increase the total of a contract by around 2.5%, basically negligible in mind. From the outset, then, it looks like controlling wages up or down won’t affect the cost of public work to governments by all that much. Now let’s get into the research. Comparing the costs of school construction in all 50 states, researchers from the State University system and the University of Utah found that prevailing wage laws didn’t affect construction costs in a meaningful way. Their results, published in a 2003 edition of Industrial Relations, flew in the face of then-wide spread arguments that repealing the laws would decrease the burden of building new schools for taxpayers. Importantly, the researchers controlled for the business cycle, since construction is a “boom and bust” industry, cycling through periods of more or less activity. Instead of prevailing wage laws, decreases in cost were linked to economies of scale. For example, doubling the size of a construction project increased the job’s total cost by only 93%, rather than the 100% one would expect all else being equal. Public schools cost over 15% more than private schools to build, but that was true independent of whether prevailing wage laws were present in the state under consideration. State tax revenues get hit hard, too, so hard that any savings in cost associated with lower construction bids are overshadowed by the losses in revenue. Occupational injuries increase, leading to higher workers comp insurance costs. States without prevailing wage laws tend to rely heavily on low-skill workers, since their cheaper, increasing maintenance costs over the long-term.
Steps For Determining Your Rate
• Find your craft & location: First, head over to this link and follow the steps listed in one through six in the information table until you find your classification/craft and the location of the work you performed.
• Determine your prevailing rate: Second, it is important to note that the determinations provide two important numbers, the first being the “basic hourly rate”, and the second being the “total hourly rate.”Employers in Utah are required to provide their employees the basic hourly rate as a minimum wage for work performed. This is the minimum amount of hourly monetary compensation that an employee must be paid. The total hourly rate is the minimum rate an employee must receive but also factors in fringe benefits including but not limited to health insurance, paid vacation time, or pension. When a company provides its employee a fringe benefit it is in effect providing it non-cash compensation, the total hourly rate allows the employer to offset the amount of actual cost of the fringe benefit. If the employer does not provide fringe benefits or chooses not to offset the fringe benefits, it must provide the total hourly rate to the employee as monetary compensation.
As previously mentioned, claimants who believe they have not been paid appropriately can file a public works complaint with the Division of Labor Standards Enforcement (Public Works—Initial Report (DLSE-PW Form 1). Filing of the complaint initiates an investigation of the contractor/subcontractor. If violations are found, the Labor Commissioner will issue a citation and assessment notifying the public agency that awarded the public works project to the contract. The DLSE will instruct the agency to withhold funds due from the contractor to payout wages and penalties. The assessment is in writing, describes the basis of the violations and the amount of wages, forfeitures, and penalties due. The public agency then serves the contractor with a copy of the assessment and citation. If appropriate payments are not made within sixty days the contractor, subcontractor, and bonding company which secured the payment of wages will become liable for liquidated damages for an amount equal to the amount of unpaid wages.
Prevailing wage laws help motivate more aggressive collective bargaining. In conjunction with a heightened emphasis on apprenticeship programs, generally a priority for unions, the level playing field prevailing wage laws create for union contractors radically increases worker productivity, and thus cost savings for local and state governments.
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In some states, property acquired during the marriage is considered part of the “community” and is often split 50/50 in cases of divorce. How the states treat “community property,” also known as “marital property,” will determine what happens to debt or assets upon divorce.
Community Property Laws
Community property is represented by state laws, and not all states have such laws on the books. Nine states (and Puerto Rico) have a network property laws that decide how obligation and property are separated in a separation. These states incorporate Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Such states commonly isolate property similarly, though all different states pursue impartial appropriation, implying that a judge chooses what is evenhanded, or reasonable. The Frozen North is interesting in that it permits separating from couples to pick.
While each state decides how property is partitioned after a separation, the laws may vary somewhat on how it’s isolated. For instance, a few states, similar to California, split obligation and property “similarly” (50/50), while different states, similar to Texas, will partition obligations and resources “impartially.” Courts in states that apply the fair circulation tenet think about a wide range of components, some of which warrant uneven dispersion of property or obligation, even in network property states.
Since these laws influence property and other important resources, they can profoundly affect a life partner’s future when they are compelled to share some portion of an advantage which was believed to be isolated property. Missing a prenuptial understanding between the gatherings, the state law wherein the couple was hitched will manage how property will be conveyed.
Community Property versus Separate Property
By and large, property procured during a marriage has a place with the two companions. This is particularly valid in states that have a network property laws on the books. While only one out of every odd state has such laws, property obtained during the span of a marriage is disseminated endless supply of the marriage.
Instances of network property may include:
Wages earned by either life partner during the marriage
Home and furniture bought during the marriage with conjugal profit (revamp)
Premium salary earned by business ventures and tasks
Home loans and the family home
Separate property, then again, is what was possessed preceding the marriage; acquired or got as a blessing during the marriage; and anything either spouse earned after the date of partition
Instances of separate property may include:
Financial balances which are held independently
Legacies gained during a marriage, whenever held independently
Inheritances.
Individual damage continues
Any property gained after the disintegration of a marriage
Courts have likewise characterized some property as “halfway” or “semi” network property. This incorporates property resources that would have been characterized as independent property toward the start or during the marriage, however that has turned out to be conjugal property on account of coexisting and different conditions inside the marriage.
Marital Property and Community Property States
The states having a community property are Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin. Some community property states observe the standard that all advantages obtained during the marriage are considered “community property.”
Conjugal property in network property states are claimed by the two companions similarly (50/50). This conjugal property incorporates income, all property purchased with those profit, and all obligations gathered during the marriage. Network property starts at the marriage and finishes when the couple physically isolates with the aim of not proceeding with the marriage. Thus, any profit or obligations beginning after this time will be discrete property.
Any benefits obtained before the marriage are viewed as independent property, and are claimed uniquely by that unique proprietor. A mate can, in any case, move the title of any of their different property to the next life partner (blessing) or to the network property (making a mate a record holder on financial balance). Life partners can likewise mix together their different property with network property, for instance, by including assets from before the union with the network property reserves.
Companions may not move, change, or take out any entire bit of network property without the other life partner’s consent, however can deal with their very own half . Be that as it may, the entire piece incorporates the other companion’s one half intrigue. As it were, that mate can’t be estranged the one a large portion of that has a place with them.
Separate property includes:
Property owned by just one spouse before the marriage
Property given to just one spouse before or during the marriage
Property inherited by just one spouse
Community property includes:
Money either spouse earned during the marriage
Things bought with money either spouse earned during the marriage
Separate property that has become so mixed with community property that it can’t be identified.
Utah Is NOT a Community Property State
There are two different ways states partition marital property: fair dispersion and division of your property.Utah is an impartial dispersion or precedent-based law state, which is the greater part martial property lawful framework. In any case, huge quantities of individuals, particularly in the Western U.S., live in network property states. This implies conjugal property in Utah isn’t naturally thought to be possessed by the two life partners and consequently ought to be isolated similarly in a separation.
In Utah, conjugal property is separated “evenhandedly” or decently, which may not be an even 50-50. As a rule for longer relationships, it is about half to each gathering. For momentary relationships, the court by and large returns individuals to their situation before the marriage, for example, giving individuals what they had before the marriage and ordinarily what they made during the marriage. Gatherings can concede to how they need to isolate the property outside of court, yet a judge will audit it to guarantee it’s reasonable.
Utah is an impartial appropriation express that doesn’t have a network property laws. Be that as it may, some places have put in place laws about this. The UCDPRDA permits an individual who lived in a state with community property for its martial property laws, (for example, Nevada and Idaho) and after that moved to a state without community property (in particular, Utah) to not lose any previous property rights.
We moved from a community property state to Utah and my companion passed on, presently what?
Amy and John were married in California. While living in California, they opened a financial balance and stored community property assets into the record. Following quite a while, the couple at that point moved to Utah. The California record stayed open. While living in Utah, John dies and leaves half of the assets in the record to his friend Jane. Amy doesn’t need Jane to get half of the record and accepts that the majority of the assets held in the California record should go to her. Who gets the assets in the California account?
Since Utah isn’t a community property state, just property that is titled in the perished’s people name can be passed to someone else by a will. Along these lines, if the record had been made in Utah, and at John’s demise the record was titled to Amy, at that point John couldn’t give Jane half of the record upon his passing. He would reserve no option to discard any of the assets from the record in his will. Rather, the whole record would be moved to Amy.
In any case, California is a network property state. While John and Amy may have been living in Utah when John kicked the bucket, Utah permits property held in a network property state to be dispersed by the community property standards. Under the network property measures, a mate is qualified for discard one portion of any network property got during the marriage, paying little mind to who the property is titled to. In this manner, in the model expressed above, John would have the option to pass one portion of the record to Jane in the event that he wished to do as such. After John’s demise, Amy would claim one-portion of the assets in the record and Jane would owe the other half. It is imperative to note, be that as it may, that if John didn’t execute a will before his demise, the whole record would go to Amy.
Who Keeps What?
It’s critical to underscore that evenhanded circulation influences just conjugal property, which doesn’t really incorporate all the property you and your life partner may possess.
Utah’s laws don’t supply an obvious definition recognizing conjugal property from independent property, which can prompt equivocalness and disarray. In any case, when in doubt, the court will normally confirm that “property claimed by the life partners before the marriage or gotten by blessing or legacy during the marriage is generally not viewed as conjugal property.”
For instance, on the off chance that only you acquire cash from your relatives, and your better half or spouse is excluded in the legacy, the legacy is viewed as your own, isolated property. The court can’t grant a thing of your different property to your life partner, or the other way around.
Spouses are normally permitted to keep things which aren’t considered conjugal property, however there are a couple of special cases. For instance, separate property can later wind up conjugal property relying upon how it is utilized.
Regardless of whether a couple is experiencing a separation or lawful division, there are a few subtleties that must be arranged and incorporated into the last settlement. Property division can be one of the most moving subjects to cover during a partition, as certain couples may experience issues splitting their property and resources agreeably. While some Utah couples can separate their very own property and resources through the intervention procedure, others might be in an ideal situation leaving the destiny of their things in the hands of a court-delegated judge.
Equitable Division Of Property
• The nature of the debt and/or financial obligations that the couple is responsible for.
• How long the marriage lasted.
• The amount of income each spouse generates as well as any potential income he or she may have based on education, experience and skill set.
The judge will also look at whether either spouse contributed to the education or career of the other spouse by staying at home with the children or working to financially support those advancements.
Marital Vs. Non-Marital Property
Some property items and assets may be ineligible for division in the settlement and could remain with the original owner. According to Forbes, separate property includes items that either spouse owned prior to becoming married. Certain items, including inheritance and gifts from third-parties, may also remain with one party after the divorce is finalized. In some cases, separate property can become marital if it is mixed in with other marital property. For instance, if a spouse’s inheritance money is deposited into a joint bank account with the other spouse’s name attached, it may be considered marital property.
Divorce Process
Going through a divorce can be emotional, and it can be difficult to make critical decisions when you are dealing with high amounts of stress. A Utah attorney who understands the state’s divorce laws may be an essential component of the process.
