March 12, 2010
By Emily Matson, Family Law Attorney
The Trend Towards A Better Economy
According to a recent study by Forbes, the Minneapolis metro area is the 4th in a list of a cities where the recession is “easing.” In an analysis by Yahoo!, this means we can expect our job markets to grow, and our housing crisis to slow.
Why This Trend Matters to You
These kinds of trends are interesting in a large scale view of the world, but in the practical, personal details of your life, trends don’t necessarily translate to changes in your life.
However, trends might change how you look at your future. This might give you hope when you’ve been starting to give up on ever selling your house or finding a better job. This might give you more options if you’re looking at making a change in your family situation. Perhaps this will give you and your partner the financial stability you need to focus on your relationship, and possibly to recognize that now you have the financial ability to move on in separate directions.
Regardless of your personal situation, I hope this bit of news brightens your day at least a little.
October 30, 2009
By Jennifer Moore, Family Law Attorney
The Minnesota Supreme Court has agreed to hear a case that could have major implications for poor parents who are sued in child protection cases (See The Star Tribune). The question, interestingly enough, isn’t whether parents parents who can’t afford an attorney in a child protection case are entitled to representation. They are. Instead, the question is whether the Court has the authority to require a county to pay for a private attorney or whether representation must be by a public defender. Public defenders are paid for out of the judiciary budget. In the case to be decided by the state supreme court, a Rice County judge appointed a private attorney to represent the indigent parents in a child protection case, ordering the county to pay for it out of their budget.
Private Attorney v. Public Defender
I cannot say enough about the quality of public defenders we have here in Minnesota. However, it is likely that most people would choose a private attorney over a public defender. I did read an interesting article in The Concurring Opinion that theorized that the experience obtained by public defenders make them a better choice for most defendants than a private lawyer. Another problem is that the pay rate for private attorneys performing public defender services can be very low. In Wisconsin, for example, a private attorney who takes a public defender appointment will earn $40 an hour, when the average hourly pay for attorneys in Wisconsin is $188 an hour. (From All Business.) In fact, that $40 an hour is only $5 an hour higher than was paid for public defender appointments in 1978, when the public defender statute was passed.
Public Defender Overload
With the current economic situation, there is a serious problem with overload in the public defender’s office, especially in out-state Minnesota. (See The LaCrosse Tribune and The Star Tribune). Hiring private attorneys to help with the backlog in time-sensitive child protection cases must be a serious temptation to judges balancing their own overcrowded dockets against the welfare of abused and neglected children.
Of course, if the Courts expect private attorneys to accept appointments to represent indigent clients, there needs to be a mechanism to pay the attorney for their time. The attorney who was appointed in the Rice County case has not yet been paid.
Why a Depressed Market is not ALWAYS Bad in a Divorce
Divorce provides an economic opportunity for some individuals to start fresh with a pile of cash. Maybe the pile is not quite as high as it could have been, but your buying power might be greater, too. For example, the foreclosure crisis has created an unprecendented opportunity to obtain value for investment. Bargain hunting is also possible in the stock market. It is entirely possible that you can buy more long term investment vehicles with a smaller divorce settlement than you could have in the inflated market two or three years ago.
Your divorce attorney is almost certainly not a financial advisor. When your divorce atterney begins to discuss posssible outcomes for your case, it is time to consult with your financial advisor. You may want to ask your financial advisor to meet with you and your divorce attorney to help you develop a plan of action.
In the meantime, if you find yourself find yourself somewhat panicked by the recession, you might want to read the following piece from the Boston Globe from last year, http://www.boston.com/bostonglobe/ideas/articles/2008/03/23/the_good_recession/. I found it to be quite thought provoking!
Moore Family Law, P.A.
May 12, 2009
FIRST DIVORCE, THEN ESTATE PLAN?
After your divorce, things will have changed, forever. Your income, home, automobiles, leisure time, family routines, time with or without the children; and how you feel about all this – will never be the same. You may also have some hurts and real psychic damage to heal.
Most divorces involve a full measure of unpleasant expense, conflict, and emotion. Planning your estate, which contemplates your own personal demise; can also be fraught with negativity. So why would anyone in their right mind want to do first one, then the other? I would reason that because of and in spite of these traumas, this may be the very best time to plan your estate, your legacy
FIRST, EAT A BULLFROG
I’m returning here to a theme that has occurred to me in the course of our trusts and estates practice and our family law practice: “Eat a bullfrog the first thing in the morning and everything else all day will taste delicious!” <Author unknown.> My point is, you will have gone through a lot in your divorce. It has no doubt strengthened you to take this necessary difficult step. Now may be the time to use your strength and understanding to clean up the loose ends, start afresh, and look to the future. Post divorce may be the best time of all for planning your estate. There are a myriad of new legal tools for incapacity planning, wealth transfer planning and beneficiary protection. I can only hint at what tools are available, but here they are.
TOOLS THAT HELP PLAN YOUR ESTATE
You can use a revocable living trust to protect your assets. An enhanced health care directive empowers individuals to carry out your medical decisions. HIPAA authorization ensures family access to your health care information.
Your last will and testament or a beneficiary designation provide for the transfer of wealth.
You can safeguard your family by establishing a beneficiary protection plan to designate guardians for your children, provide them child-rearing instructions. You can establish trusts to protect beneficiaries by safeguarding their inheritance from excessive taxation, creditors and predators.
Moore Family Law, P.A.
It’s Not Just an Expensive Cable Channel!
When you are in the process of getting a divorce, there is a period of time called “discovery.” Much like Discovery the channel, it’s about finding out information you may or may not have known. It is a broad term that includes requests for documents, written questions to each other, and possibly a deposition.
Formal v. Informal Discovery
In Hennepin County, MN and many other counties in Minnesota, there is a preference for doing “informal discovery” in family law. This is because often the parties are able to share information easily and completely without having to go through more expensive legal channels. It can be as simple as your lawyer writing to the other lawyer and asking for some pay stubs, tax records, and anything else that might be financially relevant.
However, when the parties are in disagreement about what information is relevant, or the scope of relevant information, the lawyers might proceed with formal discovery. Formal discovery includes formal pleadings requesting information.
Request for Production of Documents
One of the formal pleadings you may receive or serve on the other party is called “Request for Production of Documents.” This is a detailed list of documents that you ask the other side to provide. Some of the documents might be things you think you have, but you ask for them anyway in case you find you’re missing something. This will likely include requests for income statements, financial records, health records, and any written information about potential experts that might testify at trial. You have approximately 30 days to provide this information, unless the other side grants you an extension of time.
Interrogatories is the formal pleading that is simply just a lot of questions about who you are, what your plans are, what your thoughts are. It will likely include questions about your job history, your relationship with your children, your thoughts about custody, who else you think might testify at the trial. Like the request for production of documents, these are due within 30 days as well.
In my experience, depositions are rare in family law. However, sometimes the first two formal methods of obtaining information do not give the attorneys clear and complete information. In that case, you have the right to depose the opposing party. The person being deposed might be asked to bring additional documents to the deposition, and to discuss his or her opinion of them. The deposition might take a few hours to all day, and will be recorded by a court reporter. Depositions can be expensive and stressful if you are unprepared, and your attorney should sit down with you before hand to let you know what to expect and how to act during the deposition. They can often be a good tool to help the parties better understand each other and therefore avoid a trial.
Emily M. Matson, Esq.
Moore Family Law, P.A.
April 28, 2009
High Net Worth?
Get Divorced Now
The January 2009 issue of the ABA Journal (American Bar Association www.abajournal.com ) contains an interesting and relevant article for our high net worth readers, written by Eleanor Breitel Alter.
With thanks to Ms. Alter, here is my take on her article.
Ms. Alter, who practices in New York City, cites her own experience of getting a steady stream of high-net-worth divorce clients starting from the time Lehman Brothers failed in September of last year. From a rational viewpoint, this makes sense: divorcing when your net worth is down means that you will have less to divide up with your soon-to-be ex, and it means disencumbering yourself when you have major concerns regarding finances, life style, career, and children.
At the same time, faltering markets, unsure markets, down markets all force your hand. The article cites increased reappraisal of assets and increased scrutiny of values during the divorce proceedings. Where I office, we are finding increased litigation as spouses do battle over who will get the house that’s under water, the summer cabin that can’t be sold, and the retirement and investment funds they both fear will be worth, in round numbers, zero. Now can be a good time to quantify these potential losses, come to grips with them, and move on.
Furthermore, Ms. Alter points out, there are clients with large incomes and expenditures just as large, at best. More than one family has been maintaining a certain life style on a deficit, and the consequences of being wedded to a spendthrift, or of being one, are usually painful. Our experience here in Minnesota bears this out. We are finding that all the above can combine for a more complex, harrowing, and expensive divorce.
Which brings us to another of Ms. Alter’s points — and a hopeful one: these conditions can also be motivation for both sides of the divorce to work together to come up with a rational, fair, and less traumatic, divorce. Often, decrees are negotiated with an eye to renegotiating them again when economic and personal conditions change in the future, reducing the complexity and expense of trying to predict what is inherently unpredictable. It’s up to you.
All of which we hope is food for thought.
Moore Family Law, P.A.
Our web site:
April 24, 2009
Smiles are Optional
At Your Divorce Trial
Divorce Trial? Who does that?
Most family law cases settle long before a divorce trial, but in a small minority of cases, clients find themselves preparing for a trial in divorce court. You may think your case is too simple for a trial, but a divorce involves summing up all the lives of any given family. These issues can be complex, and if the family doesn’t agree on what is fair and equitable, much less the basic facts, there will have to be a trial.
What Happens During a Divorce Trial?
Divorce trials are heard by judges, not by juries. There may be short opening statements, although they are often waived. Various people will testify about the case, including the parties and experts (such as custody evaluators, real estate appraisers, actuaries, forensic accountants, and therapists). In some cases, friends, neighbors, relatives and teachers may be called to testify. Documents about your financial situation and any other issue will be given to the Judge to help him or her decide the issues in the case.
Once both parties have had the opportunity to present witnesses and exhibits to the Judge, the Court will ask for closing arguments. In family court, these are often done in writing in the form of proposed Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree. This is where the attorneys summarize the case and ask the Court to decide a particular way.
What Doesn’t Happen During a Divorce Trial?
There is rarely an “Aha! I’ve got you!” moment. There will be cross-examination, but the Court is not impressed with courtroom theatrics. What might be a relevant admission to one spouse will probably not impress the Court. I have witnessed attorneys spend hours grilling a wife about the fact that her expenses will decrease when her children leave home in five or six years. Honestly, I think time might have been better spent talking about the wife’s current needs and the wife’s current income, since maintenance can be modified if there is a substantial change in circumstances. Similarly, Minnesota does have no-fault divorce, so testimony about infidelity and other misconduct are not relevant in the vast majority of cases.
A Winning Strategy for Divorce Court
The best strategy is to appear more reasonable than the other side. Logic and reason are valued by the legal profession (judges included), even in the midst of the difficult emotions presented in family court. Anger and hostility are understandable, but will not win a case. Smiles are optional – but they can help!
Moore Family Law, P.A.
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