Friday, March 19, 2010

Preparing and Arguing Effective Family Law Motions

This is the title of an article authored by Judge Sharon Hall (Anoka County) and myself in the Winter 2009-10 issue of Family Law Forum.  The issue is entitled Pesky Problems in Family Law and includes articles on bankruptcy, attorney-client privilege, child support, and collaborative law.  Copies are available for download at:

http://www2.mnbar.org/sections/family-law/newsletters.asp

If you are a member of the Family Law Section of the MSBA you should have received a copy in February.  If you are not a member, you should consider joining as the Section has frequent meetings and seminars with CLE credit. 


Here is a brief excerpt:

Frequently-ignored rules include the following:
a.  Rule 303.01(a)(2) requiring counsel to advise the opposing party or counsel of the  scheduling of a motion...
b.  Rule 303.03(c) requiring counsel to certify settlement efforts...
c.  If an Order to Show Cause is required, such as for a contempt motion, be certain that it complies with Family Court Rules 303.05 and 309...

It continues to amaze judges that attorneys sometimes behave like they are in the midst of a political campaign, accentuating all of the bad behavior of the opposing party, while saying little or nothing about the nature of their own client's relationship with the children...

I appreciate it very much when attorneys accentuate the positives and downplay the negatives, unless the negatives are relevant to the parent-child relationship and endanger the children.

Monday, March 1, 2010

Written Marital Termination Agreements (MTA) Always Preferable

Frequently at a Prehearing Conference the attorneys want to read an agreement into the record, with a Decree, approved as to form by the attorneys, to follow.  I discourage this practice as on occasion the verbal agreement falls apart within days of its reading into the record, or one or both parties fire their attorneys and think they can back out of the agreement.  A few years ago I had a case with a pair of attorneys fighting over the wording of the Decree for 6 months.  I ordered a transcript, charged 1/2 to each attorney, and drafted the decree myself.  I encourage attorneys to bring a draft MTA to the Prehearing Conference so that the agreement is clear to their clients and the attorneys thereafter need not obtain a transcript.  Attorneys sometimes want to argue by letter (ex parte) what should be in the decree.  Family Court Rule 307(b) provides for the process when a verbal stipulation is read into the record.

An example of something read into the record in a verbal stipulation that would best be in a written MTA as it is vague and probably not clearly understood by the parties:
    
 The homestead is awarded to Petitioner, with Respondent having the standard "Hennepin County" variable lien..."

What does that mean?  (Its probably 2 full pages in a Decree.)  I would be shocked if the parties understood what that means.  In this time of many homes being "upside down", ie. mortgage loan balance exceeds fair market value, both parties are best served with a detailed MTA, not a verbal agreement read into the record.