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.

Tuesday, November 25, 2014

Holiday Child Visitation: Don't Be a Grinch

Most divorced parents and never-married but separated parents with a court order have a specific schedule for holiday visitation.  Some do not and resort to the annual ritual fighting about who gets the kids for Christmas.  If this is you or a family member, please try to resolve these issues amicably, going to mediation if necessary.  Please do not resort to calling police or filing a last minute court motion.  Be flexible.  Please keep foremost in your mind that this is to be a happy and memorable time for children, not a time for disputes and stress.  Don't be a Grinch!

Also, see my 11-26-12 post.

Monday, November 10, 2014

Preserving Gifts to One Spouse When Divorcing

There is a good article in the November 9 Wall Street Journal entitled, "The Battle Over Gifts in a Divorce." (Title in print version) The author describes how prenuptial agreements, trusts, documentation, individual titles and registration of property, and separate accounts can help the recipient of a gift during marriage retain that item as "nonmarital" in the event of a divorce.  A very important point made by the author is states vary as to what is considered separate (nonmarital) property versus marital property.  Co-mingling assets or using them for basic living expenses or to pay down debt may make it more difficult to prove their non-marital nature, that is, tracing them to a still-existing asset.  As always, consulting an attorney in your state is the best idea.


The Billion Dollar Divorce

Here is a link to a story about the oil tycoon's billion dollar divorce award (to his soon to be ex-wife).
That's enough to build the new Viking stadium.
And you thought your divorce was expensive.