Thursday, February 26, 2015

Potential Issue With Dependency Tax Exemptions Under Obamacare

Parties who are in the process of being divorced or are divorced may want to discuss with an accountant the consequences of Obamacare on their or their former spouses claiming of a child as a dependency exemption.  I have been told by a former tax preparer that the IRS doesn't care how the parties divided up the exemption under the divorce decree.  This issue has recently been raised on the financial pages of several newspapers.

Monday, February 23, 2015

End of Divorce is Not End of Necessary Planning

My experience as a family law was that clients wanted to forget the emotional and financial pain of the divorce as soon as the judge signed the decree.  But, as an article in Saturday's Wall Street Journal discusses, post-divorce it is extremely important to review one's estate plan, last will and testament, and life insurance to avoid unintended consequences in the event of one's untimely death during the minority of the children.  The article is well worth reading.  You may have to sign on or locate a copy at your local public library.

Thursday, January 22, 2015

For Continuance Requests, You Must Follow the Rules

Judges must comply with ethical rules about ex parte communications, that is, judges may not generally consider or take action requested by letter by one party without the consent of the other parties.  It is a frequent occurrence that a party to a family law case will write the judge asking to continue a hearing or trial, without the consent of the opposing party.  Such requests violate the Rules of Court (in MN) and, except in cases of emergency, will be denied or disregarded.  Needing more time to hire a lawyer or prepare documents or subpoena witnesses for trial will not be valid excuses for having a hearing or trial continued.  Judges are well aware that parties wait until the "eleventh hour" to hire an attorney, expecting the hearing or trial to be continued.  Failure to manage one's time or be organized is not a basis for a continuance.

If you want to seek a continuance, follow the Rules of Court!

Tuesday, December 16, 2014

Listen to and Answer the Judge's Questions

This week's Minnesota Lawyer has a good article about New Years' resolutions for appellate lawyers.  One of the resolutions is:

    I will listen to the judges' questions and answer them.

Many rookie lawyers are surprised when, during the first minutes of their first appellate oral argument, they are interrupted by the judge with a question.  This resolution (above) also applies at the trial court level.  Recently I have asked questions of lawyers during arguments of motions and am taken aback when they either don't answer the question, or (worse) angrily argue with me.  The judge is asking the question on either an important question of fact or law and wants a direct answer, not a non-answer or "runaround."  Sometimes allegations have been made in an affidavit that the judge wants confirmed or denied or explained; or wants to confirm that facts alleged in argument were nowhere alleged in anyone's affidavit.  At other times the judge simply wants the lawyer to clearly state their legal argument.

So don't ignore the judge's question.

Tuesday, December 9, 2014

Unrepresented Parties: The Judge Cannot Give You Legal Advice and the Opposing Attorney Owes Only His or Her Client Zealous, Professional Representation, NOT You

From the comments to this blog it is clear that many people do not understand that the judge cannot give an unrepresented party legal advice or protect their interests in court, other than making sure the opposing attorney does not violate the rules of court or ethical rules.  Therefore, the party who proceeds through a family court hearing without at least consulting an attorney should not be surprised if the result is not what they expected.  The moving party has the burden of proof and if you are the moving party and fail to provide the judge with the necessary evidence, not only will you lose the motion, but you may be ordered to pay the opposing party's attorney's fees and court costs.  For example, you are the non-custodial parent under the divorce decree, but you are moving the court for joint physical custody because "now I have my life back together and want to spend more time with the children."  In MN this is not enough: you generally must prove an endangerment to the children in the care of the other parent or a wilful and persistent denial of visitation to obtain a change of physical custody.  Your burden of proof does not change just because you are not represented by a lawyer.

Tuesday, December 2, 2014

That There Has Been ADR and What Was Discussed Is Confidential and Inadmissible Evidence

It continues to happen in family court and lawyers need to stop it:  referring by affidavit  to discussions had during mediation.  MN General Rules of Practice 114.08 states "no evidence that there has been an ADR proceeding or any fact concerning the proceeding may be admitted in a trial de novo or in any subsequent proceeding involving any of the issues or parties to the proceeding."  Any documents produced and any statements made in the ADR proceeding are inadmissible.  Nevertheless, lawyers persist in allowing their clients in their affidavits to comment about what the other party said or what their motives are as gleaned from ADR.

Lawyers: please stop doing this.  If you don't, you risk sanctions from the judge and you will look like you don't understand the rules of court.