Monday, April 14, 2014

Tax Exemption Claims Between Divorced (ing) Parents

There is a good article in the 4-14-14 issue of MINNESOTA LAWYER.  The authors cite federal law that a divorced parent cannot claim an exemption for child not in their custody if they do not file form 8332 signed by the custodial parent.  Sending the IRS a copy of the divorce decree is insufficient.  Its an article worth reading.

Thursday, March 27, 2014

Forget Thee Not the Trier of Fact

My May 31, 2012, post was on this topic.  Frequently in trial everyone but the judge has the exhibit the witness is testifying about.  Don't forget to give the judge a copy.  Also, if a trial exhibit is already in evidence, you need not have the witness lay foundation for it again.  And, PLEASE prepare your client for testimony and explain the process for objections, not talking at the same time as others, speaking in proper volume and articulation for the court reporter, etc.  Finally, if you and opposing counsel have stipulations as to facts or issues, put them in writing.

Wednesday, March 5, 2014

18-year-old Sues Parents For Support; Suit Dismissed March 18; Dad in Another Case Must Pay for Half of Law School Pursuant to Divorce Decree

In a variation on the 1980's movie (Ryan O'Neal as Dad) where the pre-teen child sued her parents for divorce, an 18-year-old is suing her parents for temporary support and to pay for college.  My bet is that this is dismissed at the next hearing.  This suit wouldn't have a prayer in Minnesota.  In MN the legal duty to pay support ends at age 18 or high school graduation whichever is later.

Linkhttp://www.cnbc.com/id/101468479

Update: teen has gone home.  Lawsuit not yet dismissed.

Further update:  student dropped the lawsuit and judge formally dismissed it March18.

BUT see this link.  Dad who agreed in divorce to pay for half of law school is stuck with that provision in decree.  The lesson: be careful what you agree to.  I often see people who agree in divorce to divide equally college expenses.  Parties should be VERY VERY specific on the mechanism to determine how much each parent pays, what if they disagree on college to attend, etc.
http://www.nj.com/news/index.ssf/2014/03/nj_father_ordered_to_pay_half_of_daughters_pricey_law_school_expenses.html?utm_source=WhatCounts+Publicaster+Edition&utm_medium=email&utm_campaign=Sidebar%3a+St.+Paul+to+pay+settlement+to+families+of+children+killed+in+landslide&utm_content=ruled

Monday, March 3, 2014

Know Your Audience (Judge)

If you are a lawyer or unrepresented party, it may be important to know the legal background of your audience, that is, your judge.  In Minnesota, very few judges practiced primarily or even sporadically in family law.  Minnesota has many new judges who were prosecutors and public defenders.  Also, in metro counties new judges may be stuck in traffic-misdemeanor court for many months for training purposes.  Some metro counties also have referees who hear all family court motions.

 You need to know MSA chapter 518 AND case law inside and out.  Not every violation of a decree can be the subject of a contempt motion, for example, property division. (See old posts herein).  So do not take for granted that the judge has long experience in family law.

Friday, February 21, 2014

Minnesota Court Cannot Change Substantive Property Rights of Parties If Decree is Vague

Occasionally in family court, and rarely in non-family civil cases, parties will ask the court to interpret vague provisions of a decree or order to which the parties previously stipulated and which was drafted by their attorneys.  Such stipulations are almost always binding contracts.  If the lawyers fail to state important specific terms of the agreement, may or should the court modify or interpret the contract to "fill in the blanks" because the lawyers failed to foresee what might happen?  Answers of judges will vary depending on the facts and the nature of the issue.  MN judges may implement or enforce the provisions of a divorce decree relative to property division, or construe them, but the court cannot change the parties' substantive rights.

For example, divorce decree provisions regarding the division of property are final and not modifiable under Minnesota law.  Therefore, the decree should be very specific about what happens to the parties' property and real estate, including any provisions for selling it, dividing the net sale proceeds, refinancing the mortgage, or paying off the interest of one party if the other retains title.  Unrepresented parties frequently fail to adequately address the division of their real estate in their stipulated decree.  The decree might say "Husband keeps the house and will pay wife $10,000."  So, when is the money due, is there interest accruing, is it secured by her lien against the house, and what if he allows foreclosure of the bank's mortgage?  The judge ethically cannot give the parties legal advice on these issues.

Despite the fact that unrepresented parties can obtain divorce forms off the state court website, the advice of an attorney as to the division of property is generally advisable.

Friday, February 14, 2014

NECESSARY READING FOR FAMILY LAWYERS: SURVIVING THE STRESSES

Following is a link to a great article on Above the Law.com.   What I learned from 24 years as a family lawyer is you must take care of your health, your relationships and your reputation.  Sixty-hour weeks make taking care of those things impossible.

http://abovethelaw.com/2014/02/think-your-job-is-killing-you-how-to-survive-the-profession-in-3-easy-steps/

Monday, February 10, 2014

Life Insurance Should Be Addressed in Divorce Decree

The February 10 issue of Minnesota Lawyer has a fine article about life insurance issues in divorce authored by Kathryn Graves.  Another issue is naming children of divorced parents as beneficiaries.  If a parent dies leaving life insurance to a minor child, the money is not available to the child until age 18.  It is not available to the surviving parent for the child's care.  Unrepresented parties likely will miss this distinction.  Consult a lawyer.