Paternity Lawsuit FAQs

Paternity Lawsuit FAQs

When the presumed father of a child denies parentage, the mother may choose to file a paternity suit. The filing of the suit typically compels the individual to submit to a DNA test in order to make that determination and also lays the groundwork for child support and, depending on the circumstances, visitation rights. The presumptive father also may file suit if he would like to establish paternity that has been denied by the mother, as can a child, although these are much less common. Below are answers to some of the most frequently asked questions about paternity suits.

How is the father of a child legally determined?

Assuming that there is no agreement between the parents, either the mother, alleged father, or even in some cases the child, can bring a paternity suit to identify the father of the child. Most paternity suits are filed to establish financial or moral responsibility, gain visitation rights or settle other issues in controversy between the parents.

If the circumstances warrant, a judge in a paternity suit will order a blood test from which DNA testing can conclusively determine whether the alleged father is the biological father of the child. After a determination is made, the judge can make a ruling on the issues outlined above or the parties can come to a private agreement.

Is the biological father the only person who can be legally recognized as the father?

The short answer is no, a man other than the biological father may be legally designated as the father of the child. But determining legal paternity can be a complicated problem which attempts to find clarity in circumstances which range from the straightforward to byzantine. Making this determination in a paternity suit often involves heated arguments on both sides and the legal standard for paternity varies from state to state. While we’ll cover the basics below, you should investigate your state’s laws in order to make an informed determination about your situation.

There are several legal classifications of fathers, and once established, paternity is difficult to change and unless there is a private agreement between the father and mother to the contrary, fathers are obligated to pay child support.

Acknowledged Father

The most straight forward of the bunch, it’s exactly what it sounds like. An acknowledged father is the biological father of a child born to unmarried parents who admits that he is the father. Acknowledged fathers are obligated to pay child support.

Presumed Father

Generally the most contested categorization of fathers, there are four circumstances in which a man is presumed to be the father of the child:

  1. He was married to the mother when the child was either born or conceived.
  2. He attempted to marry the mother when the child was either born or conceived.
  3. He married the mother after the birth of the child and agreed to have his name put on the birth certificate or agreed to support the child.
  4. He welcomed the child into his home after birth and openly holds the child out as his own.

Equitable Father

A father who is not the biological or adoptive father, but who has a close relationship with the child or where the relationship is encouraged by the biological parents. This legal claim is generally made by non-biological fathers during divorce proceedings.

The doctrine of the equitable parent derives from the understanding that a child and a non-biological parent may have such a close parent/child relationship that the court will grant the equitable parent custody rights. It seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.

The three requirements to be recognized as an equitable father are:

  1. the father and child mutually acknowledge a relationship as father and child;
  2. the father desires to have the rights afforded to a parent; and
  3. the husband is willing to take on the responsibility of paying child support.

Not all states recognize equitable fathers, so be sure to investigate your state’s laws and/or contact an attorney in your state.

Unwed Father

A man who impregnates a woman but does not marry her. Historically, unwed fathers have enjoyed fewer rights with respect to their children. If an unwed father wishes to retain rights with a minimum of court intervention, he should acknowledge his paternity and if possible come to an agreement with the mother confirming his status. If another man becomes the presumed father, retaining full rights for the unwed father becomes difficult. Assuming that there is not another man who seeks to be named the child’s father, the unwed father can retain visitation rights and seek custody of the child.

If I legally establish that a man is my child’s father, is he responsible for child support and how do I get it from him?

If paternity is established by one of the methods above, the father is required to provide child support for the child. The father also gets visitation rights and can seek custody of the child.

Once paternity is established, if the father refuses to pay child support, or does not provide enough, he will be subject to enforcement measures. All states have child support or child welfare agencies which can track down “deadbeat dads” through a variety of methods, including social security numbers, employment records, DMV searches, etc. Courts can place liens on property, garnish wages and even imprison fathers who don’t pay child support. You should explore all options through state and city agencies, or by contacting an attorney in your state who can do this as well as file a motion in court to compel the father to pay.

What if I can’t afford to file a paternity suit?

Fees required to bring a paternity suit can be costly, although there is generally a small fee for the paternity test itself. In almost all states there are mechanisms which allow paternity suits to be filed by the state at no cost to the mother seeking to establish paternity. State child support agencies will file the paternity suit on your behalf. Many of these agencies are funded by the federal Temporary Aid to Needy Families (TANF) program.

Free Initial Consultation with a Paternity Lawyer

When you need a Paternity Lawyer, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Source: https://www.ascentlawfirm.com/paternity-lawsuit-faqs/

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Creating a Business Plan

Creating a Business Plan

Every successful business needs a business plan, which maps out your company’s goals and plan of execution. The business plan not only helps keep everyone in the organization on the same page, but also serves as your company’s resume and can help with funding efforts. This section covers the reasons for writing a business plan and how to write one, including sample plans and related resources.

Breakeven Analysis

A person starting a new business often asks, “At what level of sales will my company make a profit?” Breakeven analysis is used to determine when your business will be able to cover all its expenses and begin to make a profit. It is important to identify your startup costs, which will help you determine your sales revenue needed to pay ongoing business expenses.

Writing a Business Plan

Business planning is essential for the success of any business. A business plan provides direction, keeps you on track and is usually a requirement when you seek finance. Before writing a plan, always do your research. You will need to make quite a few decisions about your business including structure, marketing strategies and finances before you can complete your plan. By having the right information to hand you also can be more accurate in your forecasts and analysis.

Effective Marketing Strategy for Your Business

While developing an effective content marketing strategy isn’t easy, becoming familiar with its core components is the first step for moving in the right direction. For instance, the key to effective content marketing is to be sharply focused. It’s virtually impossible to successfully market to everyone all at once, so instead you may find it easier if you concentrate your efforts where you think you can move the needle most.

Using Your Business Plan

A business plan does not guarantee the success of your venture, but it does increase the odds of success–if you properly use the plan as a comprehensive strategic tool. You can employ your business plan to sell your business idea to potential investors. Include in your business plan all the marketing, financial, background, and strategic information an investor would need to become as excited about your business venture as you are.

Including Logistics in Your Business Plan

No matter how finely tuned your business plan may be, over the lifetime of any business, things will go wrong. From natural disasters to worker strikes, the best way to survive a business disaster is with a logistics contingency plan. Logistics is all about details, and the long-term success of any business has a great deal to do with well-planned logistics. Focusing on these details continuously in your business plan will increase your company’s chance of success from the get-go and for the long run.

Hiring a Business Attorney

A business lawyer at Ascent Law can help in many business scenarios, from helping with the incorporation process, drawing up contracts and, if necessary, representing you in litigation. Each business is unique, and a free initial consultation with a lawyer from our office can help you determine the complexity of your own needs and how to proceed on many of these issues.

While you can often take care of the formation of a legal business entity such as an LLC or business partnership without legal help, forming a corporation with shareholders and a board is a more complex process. Articles of incorporation can be filed without lawyers, but the administrative side of managing the complex tax and legal requirements often requires the services of a corporate attorney from Ascent Law.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Source: https://www.ascentlawfirm.com/creating-a-business-plan/

How Imputed Income Factors into a Divorce

How Imputed Income Factors into a Divorce

When a couple divorces, each spouse must make a full financial disclosure for the purposes of property division, alimony and child support. Often, a supporting spouse attempts to under report income to reduce alimony and child support obligations. Here are a few ways a supporting spouse could go into a divorce with lower-than-actual reported income:

  • Turn down a promotion or raise — An employee who is cozy with the boss could request that a promotion or raise be postponed until the divorce is over.
  • Accrue commissions — A sales professional could ask an employer to delay commissions “for tax purposes” when that really means “after the divorce.”
  • Neglect to invoice clients — A business that isn’t billing isn’t earning.
  • Create phony expenses — If a supporting spouse owns a business, it’s easy to list invalid expenses to drive down reported profits.

But when a party to divorce reports income that is lower than in previous years, the court tends to notice. Spouses also tend to notice when a long-anticipated promotion doesn’t come through, yet it’s treated as if it’s no big deal. A court can examine a long list of clues that leads to the inescapable conclusion that this breadwinner is trimming the crust.

It’s then that the court can impute income, treating the spouse’s reported income as if it is not telling the whole story. The court may inflate the reported income and use the higher figure in calculations for child support and alimony.

What Are the Steps of an Uncontested Divorce in Utah?

When a couple refers to an uncontested divorce, they are discussing a divorce that does not go to trial. In an uncontested divorce, there is no cause for a trial because issues are discussed and decided upon with the help of attorneys outside of the courtroom. This process includes the following steps:

  • Filing for divorce. Your divorce case begins in the eyes of the state when you or your partner file a no-fault divorce through a Summons and Complaint or Summons with Notice, and pay a filing fee. If you already have a settlement in place, you may file it at the same time that you file for divorce. If not, negotiations must take place and you and your spouse must reach a settlement agreement.
  • Serving your spouse. The spouse who did not file must be personally served with papers notifying them that you filed for divorce. This is completed by someone other than the person who filed for divorce who is over the age of 18. Once the papers have been served to your spouse, he or she will sign an Affidavit of Service to formally recognize that they received the divorce papers, and that they agree to a no-fault divorce. At this time, the divorce is considered uncontested.
  • Calendar your divorce for review. After you and your spouse have negotiated and reached a settlement on your divorce, your case will be presented to the court and calendared for review. This means that a judge will be provided with your divorce papers and will look over your case.
  • Judgement of divorce. If a judge approves of your settlement, he or she will sign a Judgement of Divorce ending your marriage. Both spouses will receive a copy of the judgement, and the spouse who did not file for divorce will need to sign a final Affidavit of Service noting that the divorce is finalized.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ten Ways to Fund Your Business

Ten Ways to Fund Your Business

Making the decision to start your own business can be both exciting and daunting. There are many things to think about: picking a business name, choosing a business structure, getting the required licenses and permits, and creating a business plan. You will also need to figure out how to fund your business, since most people don’t have the money to finance it themselves. So, a Business Lawyer would suggest these ways, but keep in mind, if you are going to ask friends and family for money to start a business, you need to provide disclosures and have your paperwork done by a Utah securities lawyer or you could run afoul of civil and criminal law in Utah.

Others may have enough money, but don’t want to have their life savings wrapped up in a business when there are no guarantees that it will succeed. This article provides a list and brief description of ten suggestions for how to fund your business.

  1. The U.S. Small Business Administration (SBA) has four basic loan programs:
    a. 7(a) Loan Program: this is the SBA’s most common program. The eligibility requirements vary depending on the specific aspects of the business.
    b. Certified Development Company/504 Loan Program: this program has specific eligibility requirements and provides financing for major fixed assets such as real estate or equipment.

    c. Disaster Loans: these low-interest loans can be used to replace or repair various items that have been destroyed or damaged in a disaster.
    d. Microloan Program: The SBA’s microloan program assists certain intermediary lenders in making loans to small businesses and certain not-for-profit childcare centers. This program provides loans of up to $50,000.

  2. United States Department of Agriculture (USDA) Rural Development: The Rural Development division provides loan guarantees for the purchase and expansion of land, buildings, equipment and working capital for cooperatives, nurseries, tourist and recreational facilities, hotels, motels, community projects, housing development sites and apartment buildings. These loan guarantees are provided only to businesses that save or create jobs in rural areas.
  3. State Financing Programs: Although state financing programs vary widely from state to state, all states offer financing programs. Funds originate from the federally-funded Small Cities Development Program and from state investment fund appropriations. Contact your state’s department of trade and economic development to find out what’s available.
  4. Local Financing Programs: Various governmental units provide forms of financing assistance to small businesses. The assistance may be in the form of the planning or business services unit of the county or municipality in which you operate (or intend to operate) your business.
  5. Commercial Banks and Savings and Loan Associations: If you can demonstrate a sound business plan and an operating history of two to three years, you may be able to obtain a loan from a commercial bank with favorable terms. Loans may take the form of lines of credit, inventory loans, accounts receivable financing, factoring (where the lender purchases receivables for a percentage of their face value), and conventional loans repaid over time. For newer businesses, a personal guarantee of the owner of the business will most likely be required. Savings and loan associations can also provide you with a business loan if you have appropriate collateral.
  6. Credit Unions: If you belong to a credit union, you may be able to borrow funds for your business. The procedure is generally simpler than borrowing funds from a commercial bank.
  7. Mortgage Companies: Some mortgage companies allow people to establish lines of credit on the equity they have in their homes, which can then be used to finance a business venture. Please be aware, however, that by doing this, you are putting your home at risk.
  8. Credit Card Companies: Although risky and costly, using credit cards to finance a business venture, particularly in the short-term, can be effective.
  9. Friends and Relatives: You may be able to obtain some funds from friends and relatives. However, it is important to pay back these loans on time to avoid making friends into enemies and relatives into estranged relatives.
  10. Life Insurance Policies: You can often borrow most of a life insurance policy’s cash surrender value for your business. However, make sure you understand the terms of the insurance plan first to avoid voiding the policy or reducing the death benefits.

These are just some of the loan programs available for those looking to finance their business. Be sure to check the loan programs in your area before committing to a particular loan program on this list. And remember, while this list is helpful in providing basic information about various loan options, only you can know which type of loan will best fit your needs.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Making Joint Custody Work

Making Joint Custody Work

Developing a joint child custody arrangement that works for both parents is never an easy task. It takes a lot of coordination of schedules and management of each parent’s needs, combined with ensuring the children’s needs are met.

When you have a joint custody arrangement finalized, there are some steps you can take to make sure it works for the long term so that you don’t have to constantly renegotiate the terms of the agreement. The following are a few tips:

  • Be kind: Never badmouth your former spouse or partner. The things you say will be internalized by your children, and it is unfair to kids for you to say things that could potentially damage their relationship with their mother or father. Keep your negative feelings to yourself when around your children.
  • Remember that custody is not about you: Custody is about the children. You should always make the children the focus, rather than your ability to “win” them or their time. You and the other parent must remember to put aside your egos for the good of the kids.
  • Be realistic and open about your schedule: As much as you might love to be with your children on certain days or for a certain percentage of the time, you also have to be realistic about your own schedule and commitments. If there are certain commitments you simply cannot sacrifice, you should be open about this when developing a custody arrangement.
  • Figure out the best way to communicate: Communication is crucial for joint custody to work. Find a method of communication that works for you, whether it’s via phone, texting, Google Drive, online calendars or any other platform that you both will use.

When Is Parental Kidnapping Legal?

Parental kidnapping can involve snatching a child and fleeing the country with the intention never to return, deliberately failing to return a child on time to a custodial parent, and everything in between. Parental kidnapping is the deliberate violation of a custody order. It need not involve violence, threats or even removal of the child to a different location. Simply frustrating the custodial parent’s efforts to exercise rightful custody is a crime, and parents who commit parental kidnapping face serious consequences including jail time — unless, of course, that kidnapping is legal.

But when is a crime legal? When an old legal principle called necessity comes into play, justifying an illegal act as necessary to prevent something even worse from happening. The defense of necessity has four parts:

  • The harm the accused sought to prevent is worse than the prohibited act he committed.
  • No reasonable alternative existed at the time.
  • The accused ceased the prohibited conduct as soon as the danger passed.
  • The accused did not create the danger he sought to avoid.

Courts recognize necessity as justification for parental kidnapping under very limited circumstances that create an immediate need to keep the child away from the custodial parent. For example, if your child tells you about physical or sexual abuse, you can hold the child while you pursue an order of temporary emergency custody from the court. Or if you are dropping your child off at a neutral site and notice the custodial parent is intoxicated and incapable of driving, you are justified in holding onto him or her.

However, you must be aware that the court is going to scrutinize your actions very carefully. You must be prepared to show an immediate danger to your child’s health or safety and that you sought a legal remedy as quickly as possible.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Shipping Goods and the 30-Day Rule

Shipping Goods and the 30-Day Rule

If your business plans to ship products to customers, you need to be aware of the Federal Trade Commission’s (FTC) Mail, Internet, or Telephone Order Merchandise Rule. Better known as the 30-Day Rule, it governs the manner in which businesses fulfill orders that are to be shipped. Basically, the rule is meant to ensure consumers that their goods will be shipped in a timely manner while also leaving a reasonable amount of flexibility for businesses.

The 30-Day Rule for Shipping Goods

The 30 Day Rule requires that when a business advertises shipping its goods within a certain time frame, the business must have a reasonable basis for stating so. If you don’t make a statement regarding shipping time, you must ship within 30 days–thus, the 30-Day Rule. The 30-day window begins when the business receives a completed order and payment.

If the business is unable to ship within the promised time or within 30 days, the merchant must promptly tell the customer by mail, telephone or email, and give a new shipping estimate and give the customer a chance to cancel their order and receive a full refund. This offer to cancel or accept the new shipping date must give the customer sufficient time to make a decision. In other words, you can’t call to inform a customer you can’t make a shipping time and then demand an immediate answer.

If you don’t wish to ask the customer whether you can delay the order, you can cancel the order yourself and give a full refund within the time period shipping was promised. All refunds that are forced by shipping delays must be full refunds, and not credit for future purchases.

Who Is Covered by the 30-Day Rule?

The 30-Day Rule applies to goods the customer orders by:

  • Mail
  • Telephone
  • Fax
  • Internet

Shipping Advertising and the 30-Day Rule

The 30-Day Rule focuses solely on the method of ordering. It doesn’t matter how the product is advertised or who initiates the sale. If a customer orders by any of the above methods, the shipment is covered by the Rule. The only exception would be a situation where a customer orders a product and the business sends the product along with an invoice that’s payable on receipt. In this situation, the 30-Day rule does not apply, however, if you’re still unreasonably slow in delivering such goods you may be in violation of FTC rules against deceptive advertising.

The Credit Exception

If you have customers who order merchandise through in-house credit (that is to say, your business is offering a line of credit), then you get an extra 20 days to send the merchandise. This means you have 50 days total to ship the goods (the extra 20 days is for approval of their credit).

However, if you’ve advertised a time frame within which customers will receive their merchandise, then you must ship within that stated time, even if you have to approve their credit. By stating a time frame, the business is assumed to have taken the credit approval process into account. So be careful of what you promise and make sure you can deliver.

Enforcement

The FTC has wide ranging powers to enforce the 30-Day Rule. Businesses can be sued by the FTC for injunctive relief, damages of up to $16,000 per violation, and redress for the consumer. Additionally, state and local agencies can sue you for violating consumer protection laws.

Using Drop Shipping Services

Drop shippers are distributors who hold a retail business’ inventory and ship goods to customers once the retailer has made a sale. Drop shippers can be the manufacturer or another business that provides storage and shipping services. Drop shippers receive a sales order from a business and then ship the product directly to the customer, often using the business’ address or packaging.

Many online stores that don’t have brick and mortar buildings (e.g., Amazon) utilize drop shippers, and more small businesses are utilizing drop shipping services.

The Retail Business is Still Liable for Violations

Although drop shipping is an extremely useful service (a business doesn’t have to keep an inventory on hand), the retail business is liable if there is a violation of the 30-Day Rule. According to the FTC, the person or business that solicits the order, and not the agent who does the shipping, is responsible for on time delivery.

The FTC will look at certain factors when deciding whether to take action against a seller that uses a drop shipper who has failed to deliver as promised or within 30 days. The FTC will investigate:

  • Whether the business made all reasonable efforts to prevent violations, including contracting with the drop shipping company to make sure it complies with the 30-Day Rule and monitoring customer complaints.
  • Whether the violations where unforeseeable and beyond the seller’s control.
  • Whether the seller took immediate action once a violation was discovered and moved to remedy harm to the customer.

The seller is the one who controls the sale and maintains control over the actions of the drop shipper, and therefore is ultimately liable for delivery. Therefore, businesses must take care in choosing their drop shipper as well as taking steps to minimize potential problems.

Free Initial Consultation with an FTC Lawyer

When you need help with an FTC matter or other business law case, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

What is a Non-Disclosure Agreement or NDA?

What is a Non-Disclosure Agreement or NDA

Information is power, which is why people often go to great lengths to protect it. In the wrong hands (at least from the perspective of the party that wants to protect it), certain information can erode the competitive advantage of a business, ruin reputations, sink political careers, or violate someone’s privacy. Non-disclosure agreements, or NDAs, are legal agreements compelling a named party to keep quiet about a stated piece of information, whether it’s a company’s trade secrets or a politician’s sordid extramarital affairs.

NDAs are quite common in the world of business, particularly with respect to employees, partners, and intellectual property (or trade secrets in general). But they can be used in a variety of settings and generally serve the purpose of holding the subject of the NDA financially liable for disclosing certain information.

Simply put: If you disclose something after signing an NDA that prohibits you from doing so, you may be sued for damages. But there may be instances where the non-disclosure agreement is unenforceable. This article provides an overview of non-disclosure agreements, when they’re used, and what makes NDAs enforceable.

What is a Non-Disclosure Agreement Good For? 

As long as the subject of an NDA is not being asked to keep quiet about illegal activities, these agreements can be used for any number of purposes where the subject’s silence is desired. Common uses of an NDA include, but are not limited to, protection of the following:

  • Intellectual property shared with business partners, employees, contractors, etc.;
  • Discussion of a novel invention or business plan with a prospective investor or partner;
  • Certain trade secrets (such as competitive strategies and sales leads) specific to a business entity;
  • Knowledge of a consensual sexual affair or other legal, but potentially embarrassing, information; and
  • Knowledge of patients’ laboratory results by lab workers.

Elements of a Non-Disclosure Agreement

Non-disclosure agreements may be one of two basic types: either mutual or non-mutual. A mutual NDA holds both sides of the agreement responsible for not disclosing a given piece of information, while a non-mutual NDA is used to protect disclosure by just one party. But regardless of the type, all NDAs must include the following five elements:

  1. Parties to the agreement (the “disclosing” and “receiving” parties);
  2. Identification of the information deemed to be confidential;
  3. Scope of the confidentiality agreement (specific requirement, such as not disclosing the information to other business interests);
  4. Specific exclusions from confidentiality requirement (such as information already known to the public or independently known to another party without reliance on disclosure from the subject of the NDA); and
  5. Term of the agreement (how long the NDA lasts, typically two to five years).

Other provisions that may be added to an NDA include the designation of jurisdiction in case there is a dispute or the right to injunctive relief if necessary (i.e. the ability to stop the discloser from disclosing, in addition to liability for the disclosure).

Are NDAs Enforceable?

While it’s possible to sign an invalid non-disclosure agreement believing it to be valid and to fully comply with its terms, the true test of its validity comes when one of the parties tries to enforce it. This is why the validity of an NDA is framed in terms of whether it’s actually enforceable should the receiving party (the party agreeing to not disclose certain information) breach the agreement. So in order to understand when NDAs are enforceable, it helps to first consider when they are unenforceable.

Attorneys may challenge the enforceability of an NDA in any number of ways, but here are some of the most common challenges:

  • Terms of Agreement are Overly Broad: An NDA must be reasonable, the criteria for which may vary by jurisdiction; courts may not enforce an NDA they consider to be overly burdensome, vague, or otherwise unreasonable.
  • Failure by the Discloser to Maintain Secrecy: If the party seeking to enforce the secrecy of a given piece of information fails to safeguard it on their end, and a breach occurs, the NDA may not be enforced.
  • Disclosure to Third Parties: If the receiving party discloses protected information to a third party, the NDA may not be enforced against the third party; disclosing parties often remedy this by including provisions requiring NDAs between the receiving party and the third party prior to disclosure.
  • Jurisdiction and the ‘Inevitable Disclosure’ Doctrine: If a disclosing party seeks to obtain an injunction against a breach by the receiving party, it may be denied by the inevitable disclosure doctrine (i.e. the information would have inevitably been disclosed, regardless of the receiving party’s actions). This varies by state law.
  • Damages Difficult to Quantify: How much is your reputation worth? Was a particular trade secret really that valuable to the company? These are difficult questions to answer and may make it difficult to calculate actual damages when attempting to enforce an NDA.

Additionally, any of the general reasons that a contract may be unenforceable also apply to NDAs. These reasons can include not having the capacity to contract (due to such factors as age or mental impairment); undue influence or duress; unconscionability; attempting to protect information about illegal activities; or a mistake by one or both parties.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506