The District Court Show on You Tube!

Some of the episodes of The District Court Show (30 minutes each) are on YouTube, including the Tenth Judicial District Self-Help Center.

Monday, 26 September 2016

There Are Many Hazards to the D-I-Y Divorce

At the risk of being repetitive, having discussed this issue several times in prior posts, there are many hazards to self-representation in a divorce.  Frankly I find that term "self-represented" quite misleading and do not like seeing it used.  It reminds of the term "self-medicating" which, generally, is also a bad idea.  I prefer to call parties acting without a lawyer to be "unrepresented."

I'll grant you that at least in Minnesota there are forms on the state website and available at self-help centers to assist parties in obtaining a divorce without a lawyer.  That does not mean that failing to at least consult an attorney is a good idea.  Every day judges review divorce decrees parties have agreed to without a lawyer.  If approved, many of these are "an accident waiting to happen". By that I mean when the first dispute arises over an important issue like child support, spousal maintenance, or parenting time, it will be very unclear (and the parties will disagree on) "what was intended."  As an example, if the decree is unclear as to under what conditions spousal maintenance terminates or may be reviewed, it is just possible that it will continue or terminate under conditions at least one of the parties did not expect or anticipate.

Provisions about property division must be particularly clear because generally such provisions cannot be modified by the court.  So if the agreement says "We will sell the house and divide the proceeds," what does that mean?   Who chooses the realtor? Who pays the mortgage, taxes and insurance pending closing?  Who pays for what repairs and maintenance?  What if a short sale is necessary? etc.  etc. etc.

Sure, there are dozens of videos on YouTube about how to replace a toilet, replace a radiator on your car, or install an aboveground swimming pool.  That does not mean that it's easy or that going alone will produce the optimum result.

Tuesday, 16 August 2016

Attorneys, Not Just Witnesses, Need to be Responsive to Judge's Questions

Often during a trial an attorney will ask a "yes-or-no" question to which the witness replies with a long narrative response, not a yes or no.  The attorney asking the question may then object to the answer as non-responsive and ask that it be stricken from the record.  The witness' narrative may have included otherwise objectionable hearsay or speculative testimony.

Attorneys also are often not responsive to the judge's questions.  The judge may ask a yes-or-no question and receive a long argument from the attorney.  Usually this is not an effective tactic in a criminal case.  The argument often will complain about some trivial discovery issue with the opposing attorney.

So, lawyers, as with your clients, please listen to the judge's question and answer the question.

Tuesday, 21 June 2016

Consider Stipulating to the Uncontested Facts

If your case must go to trial, the lawyers should consider putting as many of the uncontested facts in a written stipulation that they and their clients can sign.  It may also put the case in a less-litigious frame for the court and may, perhaps, lead to a settlement.  For example, the stipulation could begin with:

1.  Both parents and the children  are able-bodied and suffer no physical or emotional disabilities

2.  Both parents love their children and their children love them.

3.  Both parents want was is in the best interests of the children.

4.  Neither party is chemically dependent.

5.  Neither party has been abusive of the other.

6.  Mother's income is $_________________.

7.  Father's income is $__________________.


Consider it.

Thursday, 16 June 2016

MN Lawyers: E-filing Mandatory Starting July 1

If you have questions, contact the court administrator.

Friday, 15 April 2016

Lawyer as Litigator, Counselor and "Therapist"

Here is a link to a good article in about the various roles of a lawyer.  The author's comments certainly apply to the family lawyer.  One of the greatest disservices a family lawyer can give a client is failing to be honest about the worst case scenario.  Another is to fail to clearly and fully explain the costs of litigation, financial and emotional, and possibly on children.

Thursday, 31 March 2016

Terminating Spousal Maintenance If Cohabitating

A bill is passing through the MN legislature that would terminate awards of spousal maintenance upon cohabitation of the recipient with a third party.  This is actually nothing new.  Going back at least 30 years attorneys would put in dissolution agreements that maintenance would end on "cohabitation."  As a legislator has recently commented, this was a boon for private investigators since they would be hired to obtain photographic proof that cohabitation was occurring.  In the past motion would be filed by the payor and there would be litigation about whether there was "cohabitation" and what the word meant: living there?  In contested cases a judge currently cannot order than maintenance ends on cohabitation.   It will be interesting to see what happens.

Thursday, 10 March 2016

Failing to Provide the Judge With Enough Information

When considering motions for awards of child support or spousal maintenance, judges must consider the expenses of each party.  In MN this formerly was of greater importance when support was based on a percentage of net (after taxes) income. For nearly ten years in MN support has been determined based on a formula that considers gross income. However, when a party seeks spousal maintenance, the court must consider the expenses of each party.  Often a party's affidavit will fail to delineate what their household expenses are NOT including the children.

 For example, in a temporary relief hearing one party might assume that they will be granted physical custody of the children and will include the children's expenses in their household expense list.  If the other party is granted physical custody, the judge needs to have an affidavit which includes the support payor's expenses assuming they are not granted temporary physical custody.  Such information is often lacking in a party's affidavit.

In addition, a party cannot include the expenses of emancipated children who have graduated from high school, nor can they include expenses for children residing with them for whom they are not legally responsible.  This would include the expenses of an aging parent or the children of a significant other.

As always questions about these issues should be directed to one's attorney.