Wednesday, 2 September 2015

The Minefields for Lawyers Dealing With Unrepresented Parties

It is commonplace in family law cases that one party has an attorney and the other does not.  There are several ethical rules for the lawyer to consider in these situation, as discussed in a July 2015 article by Martin Cole in the Minnesota State Bar Association publication Bench and Bar.  New family lawyers would be best served to thoroughly review the ethical rules in this area as it can be a minefield fraught with risks of complaints to the Lawyers Board of Professional Responsibility or Bar Associations.  There continue to be more continuing legal education seminars on this issue.  Some lawyers today consider themselves just "scriveners," that is, drafting divorce agreements and decrees at the behest of both parties.  That is extremely risky and probably unethical regardless of the apparent simplicity of the case (nominal assets, no kids). 

Friday, 26 June 2015

Attention Minnesota Lawyers: Amended Rules of Court Go into Effect July 1

Substantial changes to Minnesota's Rules of Court go into effect in less than a week.  Many apply to e-filing in participating counties.  Ignorance will be no excuse if you violate the rules and the judge is considering sanctioning you with a fine.  In particular note that ALL documents must be paginated.  The MN Judicial Branch has been offering free webcasts about the new rules.  Check them out at the judicial website.

Wednesday, 17 June 2015

Responding Party Must Follow the Rules of Court; Family Court is Not Small Claims Court

A party who is served a family court motion must follow the rules of the court in which the motion is to be heard.  It is very risky to show up for court having served and filed nothing in response to the motion.  The rules of court provide explicit timelines for responsive affidavits and motions.  The party served with a motion cannot expect the court to hear their side of the story (as in small claims court) without having served and filed a responsive affidavit.  The judge may simply allow the moving party to proceed by default and grant the motion despite the opposing party's objections.  The bottom line: when in doubt as to what to do, consult with an attorney experienced in family law in that jurisdiction.

Monday, 8 June 2015

Lawyers and Litigants Should Review the "Best Interests of the Child" Factors In Minnesota, Amended by Recent Legislation

A fine article in the most recent edition of Minnesota Lawyer (6-8-15) authored by family lawyers (and spouses) Jason & Cynthia Brown summarizes the recently-passed legislation amending the previous-13 factors (Minn. Stat. 518.17 and 257.025) which the Minnesota trial courts must address in granting child custody and parenting time.   The authors comment that this legislation seems to bring the focus rightly where it has long belonged: on the needs of the child and not on the parents.  The legislation goes into effect on August 1 and is worthy of review by lawyers and litigants with pending or future custody and parenting time disputes.


I agree that the changes are not revolutionary in nature, but certainly healthy in focusing on the needs of the child and not the parents' needs or desires.  Time will tell how these changes are argued by attorneys, and interpreted by trial judges and the appellate courts of Minnesota.

Saturday, 16 May 2015

Wall St Journal article Focuses on Six Costly Financial Mistakes in Divorce

Saturday May 16 article in Wall Street Journal focuses on 6 costly mistakes:  overlooking assets, keeping the house (maybe a bad idea), underestimating expenses, seeking revenge, forgetting about taxes, and thinking the work is done.  These are all issues I have addressed in this blog.

Wednesday, 13 May 2015

The D-I-Y Divorce: A Couple of Huge Risks

Many parties proceed with a divorce without hiring an attorney.  We see many stipulated divorce decrees submitted by people that can clearly afford an attorney.  One of many risks in doing so is to fail to properly address pension or retirement plan division by a properly-drafted and approved (by the plan administrator) qualified domestic relations order (QDRO) dividing the 401k, pension or other retirement plan.  You could discover 5, 10, or 20 years from now that you failed to submit the proper paperwork to the court.  Hiring a lawyer then may be either too late or even more expensive.
A second risk is failing to properly address the division of real estate.  We see many divorce decrees with either no legal description ( Lot 1, Block 1, Sam's Sunshine Addition,  Sweetland County, AZ) or what appears to be an incomplete legal description.  This can create serious title problems  that may expensive to fix.

Moral of all this: at least consult with an attorney before you submit a stipulated decree to the court.

Monday, 27 April 2015

NY Court Allows Wife to Serve Divorce Papers on Husband Via Facebook

Traditionally a party who is avoiding service of process could be served by publication of notice in a local newspaper.  That has become a fiction in this age of social media and Internet news sites as so few people read their local newspapers let alone the legal notices.  So service via Facebook (service by alternate means) makes a lot of sense.