Wednesday, July 30, 2014

Unrepresented Parties Must Follow All Court Rules

Many parties appear in court on family matters without a lawyer.  Frequently I will tell an unrespresented party that they failed to serve and file a required document, therefore their motion is denied or their opponent's motion is granted.  A common response is,"But, judge, I didn't know I didn't have to file anything."  While the Minnesota appellate courts have allowed judges some discretion in how strictly court rules are enforced, particularly as to timeliness of service and filing of motions and affidavits, that does not mean that the rules will be entirely disregarded.  Parties coming into family court without a lawyer must generally follow the court rules AND deal with the opposing attorney in a civil, non-threatening manner.  If a lawyer is in litigation as a party, they also should get their own lawyer.  As the old saw says, "The lawyer that represents themselves in court has a fool for a client."

Remember that if you do not have a lawyer, the judge cannot ethically guide you through the process or give you legal advise.

Bottom line: Talk to a lawyer.

Wednesday, July 23, 2014

Unprofessional Conduct, Even in an Email or Letter, Not Tolerated

Here is a link to a good article in AbovetheLaw.com about unprofessional language between lawyers:

http://abovethelaw.com/2014/07/judge-youre-an-ahole-dan-is-not-how-an-attorney-should-address-her-adversary/

My impression from 24 years practicing family law and 12 years as a judge is that family cases bring out the worst in some parties AND some lawyers.  Some lawyers simply take on the persona of their client.  This does nothing but sully the lawyer's reputation with the lawyers they must deal with for years, as well as the judges before whom they appear.  Such churlish conduct will not be tolerated.

A good article on civility is in the July 7, 2014, issue os MN Lawyer.

Tuesday, July 22, 2014

Fraudulent Transfers Under Uncontested Divorce Decree May Be Set Aside

On 7-9-14 the MN Supreme Court ruled that under the Uniform Fraudulent Transfer Act the court may set aside transfers of assets (here over $1 million) from one spouse to another in an uncontested divorce when creditors establish the elements of a fruadulent transfer. Citizens State Bank v. Brown. (A12-1257)  Husband transferred substantially all of his assets to his ex-wife pursuant to the decree, rendering him insolvent, and, among other things, wife was deemed to be an "insider", therefore his credtors prevailed on appeal.

Tuesday, June 10, 2014

MN Attorneys Must Be Prepared to Argue Appropriate Interest Rate on Property Settlement

There is another in an excellent series of articles in Minnesota Lawyer authored by Alan Eidsness and Jaime Briggs in the June 9, 2014, issue entitled "Time and Money: When Court Must Take an Interest."  A large equalization property award may require the court to set an interest rate on payments made over time.  This can be a hotly contested issue for parties with significant assets as I discovered in a case many years ago as an attorney where this issue ended up go to the appellate court.  This article is worthy of a family lawyer's review.

You may also wish to review another article in that issue of Minnesota Lawyer on preparing your witnesses.  In family trials it is often obvious that witnesses have had no preparation prior to trial, being unfamiliar with how objections are handled and what it means to be responsive to the question asked.

Wednesday, June 4, 2014

You Can't Unring a Bell: Permanent Waiver of Maintenance is PERMANENT

On June 2, 2014, the MN Court of Appeals ruled that once the trial court has approved by decree a permanent waiver of spousal maintenance and divested itself of jurisdiction to modify or award maintenance, the waiver and loss of jurisdiction are permanent and cannot be restored, even by written agreement of the parties. (Gossman)  This seems elementary (ie. permanent means PERMANENT)  to me and I think factually this is unlikely to occur very often (ie. agreeing to a modification after a permanent waiver).

Monday, June 2, 2014

Judges' Pet Peeve: Discovery Disputes

The cover story in the June 2 issue of Minnesota Lawyer is about a federal judge that sanctioned a party in a civil lawsuit the sum of $931,399 in attorneys fees and expert fees for a continuing failure to produce discoverable information.  Quoting the author:

   That judges, particularly federal judges, loathe discovery disputes is a dog-bites-man story..."

Fortunately we see few discovery disputes in family law cases since almost everything imaginable is discoverable and parties cannot afford to litigate such disputes in front of judges.  It also makes the lawyers look foolish.  Occasionally an attorney will have their client answer only the first 50 Interrogatories (appears that limit was removed from the rules) or simply object to every single interrogatory as irrelevant.  This is very poor and unprofessional practice and could lead to a significant monetary sanction from the judge.  Lawyers who practice in this fashion get a reputation as obstructionist.  If you are a party, consult with your attorney before you fail to respond to discovery requests or do so incompletely or untimely.  You may regret it.

PS.  After posting the above I watched a news story about a wealthy couple's divorce, the inevitable years-long discovery disputes, and the wife's discovery of a letter proving husband had not sold certain stock as he falsely alleged.  Her lawyer was quoted as saying the letter was worth $10 million.

Wednesday, May 28, 2014