December 10, 2009
By Jennifer Moore, Family Law Attorney
A Surprising New Ruling by IRS Regarding Child Support
Recently, the Seattle Times reported that the IRS determined that a single mother of two who worked as a hairdresser could not claim her children as dependents on her tax return, because she could not prove that she provided over 50% of their children’s support. This is a surprising result, since, in this case, it leads to the anomaly that no one can claim these children as dependents.
Tax Law, Child Custody, and Tax Planning
Although I am not a tax lawyer, as a family law attorney, I am often asked to help my clients allocate the dependency exemptions fairly. Parents are able to trade dependency exemptions back and forth quite liberally, regardless of who provides the most support, or who the children live with most of the time. The default is that the parent who has custody most of the time is entitled to the dependency exemption. However, tax planning often dictates that the other parent will get the most use of the dependency exemption. Often, families simply want to divide the tax benefit by alternating the dependency exemptions.
Apparently, however, if the hairdresser’s case is taken as new law, low-income tax payers will need to maintain records as to how much they’ve expended on support for their children. See the IRS Guidelines for more information.
August 9, 2009
Child Custody, Divorce, and Mediation
First of all, my thanks to Carol Vander Kooi for the ideas in this blog.
The Right of First Refusal and the First Option to Care
I was in a mediation recently with a mediator, and we were discussing what is traditionally called (by us lawyers) the “right of first refusal”, that is commonly put into custody agreements to allow parents to be the primary daycare resource. She noted that the language we use for this parenting option does not support a stated goal that both parents be equally vested in the lives of their children. She suggested that we should call it the “First Option to Care”.
In Family Law, Mean What You Saw and Say What You Mean
I like this idea. I would recommend that when looking for a family law attorney for your divorce or child custody place, you find a lawyer who insists on plain speaking and who insists that you understand what’s going on with your case. It’s important that our language reflect our intentions.
Here’s a link to some useful information regarding mediation in Minnesota.
Topics covered include:
Mediation a cost-effective strategy in a divorce or child custody matter.
Mediation is less stressful for children in a divorce
Especially when compared to a court battle in the course of a divorce.
Mediation is confidential,
Unlike most family court matters.
What happens in a divorce or child custody mediation cannot be used in family court.
Mediation promotes communication during a family law matter.
Mediation focuses on the future to guide and inform your divorce action.
No matter what happens to the marriage, parents can still stay partners, in a new family arrangement, for the children.
Mediation is also available to resolve problems after the divorce is final.
Moore Family Law, P.A.
June 23, 2009
BIG CLIENTS AND BIG ATTORNEYS
IN A FAMILY LAW OFFICE
As the office manager in a family law office, I have the opportunity to read about, reflect upon, and learn from our daily interactions with clients – and attorneys! – going through an emotional and stressful time. Good thing I like a challenge! Thinking things over, “Bigness” has been on my mind this week.
And, before I forget; I’ve noticed there are a lot of people interested in the child support calculator and child support payment calculator. Here’s a link you can use in Minnesota Minnesota Child Support Guidelines Calculator
Anyway, on to “Bigness.”
The Big World
As I type this I’m listening to the “BBC World News” http://news.bbc.co.uk/ which is full of news about British doomsday planning for nuclear war in the 1980’s (which always ended in launching every nuclear armed missile possible), the disputed election in Iran (numerous persons killed), a subway train crash in Washington, D. C. (nine dead so far) and the bankruptcy of a local auto dealer here in Minneapolis, Minnesota (tax liens against his properties). It gives one pause, and some perspective, while going about one’s daily routines.
OK, here we go. I work in a small firm and I’m not an attorney so naturally I’ve a specific point of view about “Bigness.” My thanks to the American Bar Association magazine, “GPSolo” www.abanet.org/genpractice for inspiration and thoughtful information. These opinions of mine here are just that – my opinions.
Big Ego Divorce Clients
We’ve said this before in this blog, but it bears repeating – you are not the only person involved in a divorce or other family law matter. There’s the kids; the other party; and the law and the processes of the law. Minnesota, where I’m located, is not the best place to go for the jugular in a divorce action — we’re kind of common-sensical here, don’t ya know. Juries don’t normally award big claims in accident cases; and judges, in our experience, usually are truly focused on justice and equity for all involved – especially for the children, whether it be specifically child custody or child support case or not.
Big Ego Divorce Attorneys
Attorneys in our firm often return from court with the most interesting stories! These sometimes involve lawyers for the opposing party who think bluster and arrogance substitute for preparation, careful litigation, a knowledge of the law, and skill. They don’t; though they can needlessly run up the bill for their own clients and for the opposing party in a divorce.
Big Attorney’s Offices
Yes, law firms have been known to dress for success! As the guy who writes the checks around here, my advice is that what you want to look for is a location that reflects competence, success, and sympathy for your legal matter. I have been to law offices located in rundown houses that were slums, really; and to those in a downtown high rise with subtle designer interiors and designer furnishings. My take on this? Avoid the slum for all the obvious reasons. The downtown high rise lawyer might be just the ticket for you – but you are ultimately the one paying the rent and it’ll be reflected in your bill.
Big Law Firms
If you are preparing for a divorce, child custody, alimony, or child support legal action, a big firm might be just the thing for you – I’d like to think my family law firm can handle *anything* but we all have our limits. Do you have a really complex family law case – crossing numerous states, involving numerous family businesses, numerous residences and nearly non-existent record keeping? A large firm might be best for you.
Big Fees for Divorce Lawyers
This is related to the big law firm and the big attorney’s office threads. Let me be blunt. Your divorce attorney can’t advocate for you if you don’t pay the bill. Additionally, would you rather they spend their time hassling with you over what you have contracted to pay them; or spend their time productively working on your case? We don’t do checkbook justice, but you do get what you pay for. This can be tricky. I’d say, as the guy who sends out the bills here, look first for an attorney you can trust, who has the skills you need, and who is interested in your case. Then, make sure you can pay them – remembering that a retainer is usually only a down payment. If you can’t afford this particular attorney, don’t hire them. Find another. In any case, pay your bill; you’ll get a better professional relationship and a better result in your case.
April 17, 2009
The economy is affecting everyone in one way or another. Even if you still have your job, you might be having a hard time making the house payment. Even if you still have your house, you might be having a hard time buying groceries. Something is getting cut along the way for everyone, and sometimes this has a greater impact than you might originally expect.
Minnesota Court Budgets
In the Court system, the situation is the same. The budget that the Courts need and the budget that the Courts get are two different things, and the Courts have to make decisions about where to cut back. Articles in the publications, including http://mnbar.org/benchandbar/2008/dec08/court.html in “Minnesota Bench & Bar” and http://www.growthandjustice.org/Fewer_clerks_shorter_hours_Budget_cuts_slow_wheels_of_justice.html in “Growth and Justice”, have addressed the problems facing the Courts. The Court websites themselves have posted bulletins about the budget cuts’ impact http://www.mncourts.gov/district/4/?page=3278 and how funding cuts threaten public safety http://www.courts.state.mn.us/district/0/?page=NewsItemDisplay&item=44518
The Impact on Family Law in Minnesota
The impact of the budget cuts on your family law matter could include the following:
- Delay in filing matters and scheduling hearings and trials.
- Delay due to lack of law clerks and court administrators to handle the work, and potentially less informed judicial officers.
- Delay in filing due to courts being closed on Wednesday afternoons.
- Lack of services such as arbitration and appointments of Guardians ad Litem.
Until the economy turns around and more money is available for Court services, you should expect a longer delay in having your family matter resolved. Consider hiring an attorney help guide you through the process and explain the frustrating delays to help you through this difficult time.
Emily M. Matson, Esq.
March 30, 2009
Death and Divorce are Traumatic
OK, here you are seeking a divorce, or planning for the death or disability of yourself or a loved one. You seek out an attorney to handle the divorce, trust or estate. This is an emotionally charged time for you and your family. We understand. Many family law clients are angry, often but not always justifiably so. Divorce, child custody, child support, property settlement, and alimony are hard topics. So are probating a will, drawing up a will, crafting the estate plan you want for yourself or your loved one. No wonder people get angry!
Not every good lawyer gets every client mad, but a really good lawyer can actually get you more annoyed, not less! Why? Because they’re good, that’s why. How do I know? Look, I’m only the office manager at a small family law firm. But I have survived a divorce, I’ve taken people to court over civil matters, and I‘m the fly on the wall when the lawyers in the office make legal decisions.
What I notice is a lot of difficult communication. We have attorneys because the law is complex, changing and can be unpredictable in its outcomes. The law has been around for centuries — and it shows!
There are rules and regulations and laws the ordinary person cannot be expected to know about and who can be expected to have a difficult time grasping. There are doctrines in the law that are so much a part of everything that lawyers and courts do that it can be a culture shock to you, the client, when you find out about them. For instance in Minnesota family court fairness – not victory — is the point of the proceedings. Family courts in Minnesota are a really bad place to get revenge. You can get justice regarding your divorce, alimony, child support, child custody, the division of marriage property, yes; but these are based upon fairness to all parties concerned, especially the children. You cannot expect the court to base their decisions solely upon your case and especially not on your feelings. The courts and the laws are required to balance the needs of all parties concerned.
What a Real Divorce or Trusts and Estates Lawsuit is NOT!
If a lawyer is really good, she or he will do things you never thought possible, necessary, or sufficient for your case. Let me break this down. First, here are a few examples of what will not happen:
* A real case is not heard in a courtroom resembling “Judge Judy,”
“Law and Order” or “Boston Legal.” Emotions don’t win cases. Facts, a winning strategy, and understanding and applying the law wins your case.
* You won’t see someone on the other side break down and jump up
shouting from the witness chair, “Yes, I did it! I did it! I lied, lied about everything and I’m glad do you hear me, glad!!!” Nope, that’
s not going to happen.
* A real case, especially one in Minnesota regarding family law
(divorce, alimony, child custody, child support, etc.) or one involving trusts and estate (Trusts, estate planning, probate, legacy planning,
etc.) – is most probably not a celebrity case. It will not involve a phalanx of attorneys on either side and it will not involve a barn full of evidence and a courtroom full of perky, quirky and technical expert witnesses who work in those really futuristic crime labs like you see on
* Your case, with a good lawyer, will probably involve fewer
witnesses, fewer exhibits and less time and emotion, and quite possibly
more money, than you think necessary.
What a Competent, Caring Family Law or Trusts and Estates Attorney Will Do
How come? Well, here are some examples of what I think a good lawyer would do.
* A good attorney will bear in mind where he or she is practicing
law. We practice law in Minnesota. Not only does that involve knowing Minnesota law, it involves knowing what judges here tend to like, and dislike, what the case law is, what juries like, and dislike, and so on.
For instance, Hennepin county juries do not usually award large dollar settlements for anything.
* A good attorney will charge you what they are worth, because a
good attorney has to pay for research, computers, office staff, think time, writing time, and so on. You get what you pay for. This does not mean your bill will be astronomical, but it also does not mean you want to retain the cheapest attorney, or that you can make a decision based on hourly rates alone.
* A good attorney will carefully craft a strategy and tactics for
the case that will not only be designed to bring you justice but will also be designed to bring you the justice you can afford. Let me be clear – you may be able to get a settlement more favorable than might ordinarily be expected, but doing so will almost certainly cost you more time, anguish, money, and work than if you get a good, but not astronomical settlement – one you can afford to pay for.
* A good attorney who knows the family law and probate courts here
in Minnesota, will present the most telling argument, the most telling strategy, the most telling evidence, in your case. She or he will not necessarily present all of the evidence you have helped gather and paid your attorney to gather. Courts do not necessarily need to hear the same conclusion propped up in all sorts of different ways. The courts are usually most impressed by a tight, cogent and brief argument which they can assume is your best argument.
* A good attorney won’t just throw affidavits, evidence, and
arguments at your case. She or he will work to get the sharpest, most relevant argument winnowed out of the mass of emotions and data and paperwork involved.
I hope you have found this informative. I’m Tom Moore, the office manager at Moore Family Law. You can reach us at:
Moore Family Law, P.A.
3350 Annapolis Lane North, Suite C
Plymouth, MN 55447
Child Custody and the People You Will Meet
When you are facing a tough custody battle, either as part of a divorce or not, there are many professionals who may be assigned, appointed, or hired to help you and the other parent figure out what is in the best interest for your children. The following is a brief overview of some of the professionals who may be involved. Every case is distinct, and there are many factors that go into whether a particular professional may or even can be involved in your case.
Guardian ad Litem
If the court is concerned about the children based on some allegations of abuse or some other serious factor, it may order a Guardian ad Litem be appointed. A Guardian ad Litem is someone who works for the county government and is trained to interview, observe, communicate, and make recommendations about the best interest of the children in a case. They are the ones who speak for the children, and have a lot of influence in how the case will be viewed by the court.
There are many professionals that may be hired as a custody evaluator to help the parties and the court determine the best custody arrangement for the children. These are often private practice attorneys or psychologists with an expertise in this field. However, Hennepin County Family Court offers an Early Neutral Evaluation program that is a free service ordered early on in a case to help the parties attempt to work out their differences in a setting similar to a full evaluation. If parties do not come to an agreement at the end of this process, however, the next step may be to hire a private Custody Evaluator.
Parenting Time Expeditor
The court may order a parenting time expeditor be appointed to help the parties with their parenting time plan or unforeseen circumstances not addressed by earlier agreement. An expeditor is empowered by the court to make decisions on behalf of the court. The cost of the expeditor is paid for by the parties.
Parenting Time Consultant
The parties themselves outside of the court may make an agreement to hire a parenting time consultant (although this agreement can be memorialized in a settlement agreement put on the record with the court). A consultant does not have the legal authority of an expeditor, but is generally given more free rein to deal with the broader scope of situations that may arise in parenting and custody disputes.
Emily M. Matson, Esq.
Moore Family Law, P.A.
3350 Annapolis Lane North, Suite C
March 14, 2009
VISITATION AND PARENTING TIME
Today we no longer call a father’s time with his children “visitation”. We call it “parenting time”.
A VERY BRIEF HISTORY OF JOINT CUSTODY
James Cook died on February 21, 2009 at the age of 85. He is considered to be the founding father of joint custody laws in the United States. In the 1970’s, Cook was going through a bitter divorce. He asked for joint custody of his son, but was denied because the law favored giving custody of the children to the mother. He ultimately lost his battle for custody, but lobbied extensively for the joint custody laws that we enjoy today. http://www.latimes.com/news/obituaries/la-me-james-cook12-2009mar12,0,1547708.story
HOW MINNESOTA FAMILY COURTS TEND TO VIEW JOINT CUSTODY
There is still a strong presumption that the mother is the primary caretaker of young children. This is not codified in anywhere in the law, but is certainly present in the results of disputed custody cases. Consider that in disputed custody cases, both parents will typically present themselves as being primary caretakers of the children. In such cases, Courts routinely rely on the impressions of custody evaluators or guardians ad litem to provide investigative feedback as to which parent served as primary caretaker (along with other factors which may not be as gender-skewed). Then, if the case does not resolve itself after a custody evaluation, the Court (at least in Minnesota), will accept the custody evaluation as evidence in the case, and will take testimony to determine who is, in fact, the primary caretaker of the children. Any bias by any professional involved in the case may result in a result that is gender-biased against the father–even though the law is gender neutral.
WHAT EXPERIENCE TEACHES US ABOUT CHILD CUSTODY
In my experience, these biases are best resolved by carefully establishing through testimony and documentary evidence that my client performs all or many of all the tasks associated with being a primary caretaker. It is especially helpful if this evidence is objective. For example, if my client took the children to every doctor and dentist visit, the care provider notes will indicate it. If my client attended all student conferences, there will be a record of it. If my client signs off on all the children’s homework, there is evidence. If my client does all the transportation to and from daycare or extracurricular activities, there may be no documentary evidence of it, but there is probably some testimonial evidence of it.
I would not risk my client’s relationship with his children based on the ideal of the unbiased judiciary.
Moore Family Law, P.A.
3350 Annapolis Lane North, Suite C
Plymouth, MN 55447
January 19, 2009
Hello, Again, Tom Moore Here from Moore Family Law.
My blog today is about a happy event here at Moore Family Law in Plymouth, MN. Just before Christmas last, we hired Barbara Hagberg to serve as our paralegal, focusing on your divorce, child custody, alimony and child support issues but also here for you should you engage our probate, trusts, and estates practice.
Barb has 25 years experience with the law, 21 as a paralegal /legal assistant. Much of Barbara’s experience has been in litigation with the last 11 years in family law and about the same for her experience in probate, trusts, wills and estate law – in short Barb is strongly grounded in family law and in legacy planning. We’re proud to have her aboard! She is already proving to be a realy asset to our work, which is focused here in Hennepin and Wright Counties in the cities of Champlin, Maple Grove, Plymouth, and Minnetonka, MN.
Barbara Hagberg in Her Own Words
Here’s what Barbara has to say to you about her attitude towards our clients -and towards the difficult world we all inhabit.
“On my first day I knew I’d be happy here at Moore Family Law. I will do the best job I can for the firm and for our clients. I think we’re a good professional team here, I really do, and our firm has the right values.
“The economic financial stress has created a lot of stress for the family. It’s a hard, tough world and there’s much more litigation because everybody wants to hang on to what they’ve got. You have to tell your clients that a split has to be fair and equal. You were once a family unit – one can’t walk away with everything and the other get nothing. The division has to be fair and equitable to both parties. It’s hard to convince some clients of that.
“I like to listen to people – their problems, their situations. I don’t like to see our clients (or anybody for that matter) get hurt. The process is supposed to be fair, and sometimes that’s the hardest thing to explain to people getting a divorce.”
Thank you, Barb; and again, welcome to Moore Family Law.
Service to You is Our Goal
Our family law and probate law goals with all our staff are to enhance what is never an easy experience for you, our clients. Our goals in hiring Barbara are to provide:
- MORE service without overkill – we have another head and another pair of hands, pair of eyes to help us help you
- BETTER service by responding more swiftly and by going that extra mile that just may prove to be what it takes for your case to prevail
- MORE ECONOMICAL service by providing some services at a paralegal billing rate rather than at the higher attorney rate.
Moore Family Law
Representing Your Family’s Future
January 13, 2009
What is a Civil Gideon?
Recently there has been a push by legal communities, including here in Hennepin, Anoka, and Wright counties in Minnesota, to investigate and implement something called a “Civil Gideon” – or a right to counsel in civil cases where important rights are at stake. In 2006, the American Bar Association (link:
) passed this resolution:
RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.
In 2008, the Minnesota State Bar Association has formed its own Civil Gideon Task Force (link: http://www.mnbar.org/committees/CivilGideon/) to investigate whether a civil right to counsel should exist in Minnesota.
WHAT HAS THIS TO DO WITH FAMILY LAW?
When I first heard about this movement, I immediately thought of several family law situations in which the parties involved in proceedings which go beyond the “ordinary” legal issues arising out of divorce, alimony, child custody, child support – or even, in our Trusts and Estates practice – arising out of probate and other issues involving wills, heirs, and trusts – parties who have absolutely no resources to hire a private attorney—and lack the criteria to receive aid from the various legal aid agencies in Minnesota.
Let me explain. Once case in particular that comes to mind is a case where Moore Family Law represented the grandparents in their petition for third party child custody. The mother, not our client, was only 19, had no job, and a history of substance abuse problems. She was willing to accept help from the child’s grandparents as legal custodians for awhile—but she was scared of what might happen in the future regarding child custody. As much as she knew she couldn’t care for her child in her current state, she still wanted to some day care for her child: in the short run, she already had enough problems stemming from her previous divorce.
I think we worked out a good compromise around the family law issues, a compromise that gives her room to rehabilitate herself and become a mother again; but she would have benefited greatly from having her own attorney during the child custody proceedings. Here was a mother faced with losing her child, and she had no one to advocate for her or to explain the consequences of her decisions. She needed an attorney not only for family law matters but also for legal matters arising from her substance abuse — but she could afford neither a family law attorney nor a criminal one; and legal aid providers do not typically take clients involved in third party child custody actions.
Compare this with the situation in which an action has been initiated to terminate a mother’s parental rights. This is by no means an easy situation but there, the right to counsel is specifically provided for in Minnesota statute: “(a) The child, parent, guardian or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court.” Minn. Stat. .§ 260C.163, subd. 3. Here, at least, the mother has some right to an attorney.
WHAT MOORE FAMILY LAW IS DOING TO HELP IN MINNESOTA
Because I so often see cases where a party needs family law representation and also needs another type of lawyer, and because I think it is an injustice to not provide for those parties who face not only divorce, alimony, custody and child support issues but also issues of mental health, substance abuse, and in some cases criminal matters, — because we at Moore Family Law want to provide for those most in need, I am on the Civil Gideons Task Force, serving on the unmet needs committee.
Here I am able to bring the expertise of Moore Family Law to focus on the tasks at hand. Our job is to investigate what potential clients are out there who are not being served. There is ample data on the services provided by legal aid; but what about those cases turned away? And what about those cases where legal aid can only provide an attorney that knows the specific area of the law in a very general way? Is that adequate counsel? These are questions that we discuss at our committee and Task Force meetings so that we can lay a strong basis for the right to legal counsel where it is needed most.
Moore Family Law – Representing Your Family’s Future