Notary Requirements for Court Documents

Effective July 1, 2015, most documents filed with the Minnesota Judicial Branch will no longer require a notarized signature. As a result of the changes to the statute and court rules, most documents signed by clients represented by VLN volunteers no longer need to be notarized. Read more >>

Submitted by: Tom Walsh, Resource Attorney

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Introduction to Financial Coaching

May’s Tip of the Month focuses on financial coaching and how it can help VLN clients build a stable financial foundation for their future. This tip introduces what financial coaching is, how it can help low-income families, and how to refer clients to this new program. Read more >>

Submitted by: Don Fulton, Financial Coach

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Brief Focused Assessments in Hennepin County Family Court

In contested cases involving child custody or parenting time, it is common for the family court to seek the input and recommendations of a neutral evaluator to help resolve the contested issue. Hennepin County Family Court Services has developed a new service, Brief Focused Assessment (BFA), as an alternative to comprehensive custody and parenting time evaluations. The purpose of this tip is to provide a brief overview of the program and what to expect if your case is referred to BFA.

BFAs are designed to provide evaluative services on narrowly defined issues in family court cases involving children. A BFA is generally completed in less time than a comprehensive evaluation. BFAs are typically completed in 60 – 90 days, depending on the complexity of the situation, compared to the 120 days or more for a comprehensive evaluation. BFAs are also less expensive than a comprehensive evaluation (follow the link at the end of the article for a fee schedule).

BFAs provide a versatile tool for use in many family law scenarios. Examples of situations appropriate for referral to Brief Focused Assessment include:

• Assessing a child’s wish to live with a non-custodial parent
• How to reestablish interrupted parent/child relationships
• Determining developmentally appropriate parenting time for a child with special needs • Parenting time after a relocation

While BFAs are useful in a wide variety of cases, the question presented in the court’s order for a BFA must direct the evaluator to address a specific, narrow and well defined question. For example, in a case involving allegations of a parent having substance issues, a question for assessment could be: Does the parent suffer from substance abuse and if so, how does it impact the parent’s ability to provide a safe and consistent living environment during parenting time? For more examples of questions appropriate for a BFA, please refer to the attached information about the program provided by Family Court Services.

A BFA is not appropriate for every situation. When there are a multitude of issues or questions raised or if addressing one question causes many more to be raised, a comprehensive evaluation may be required. In addition, the BFA does not offer custody recommendations as would a comprehensive evaluation.

For more information about the BFA program go to http://www.hennepin.us/residents/public-safety/family-court-services

Examples of Appropriate BFA Questions

  • Assessing children’s wishes to live with non-custodial parent: In a case where one parent asserts that a child wishes to live with the non-custodial parent. A BFA would assess what is the context and basis of the child’s wish to change residence; is the child able to articulate his/her reasoning in a developmentally appropriate way; what is the parent’s report of the history of this request as well as the parenting and attachment history, are there concerns about parental influences on the child’s thinking/wishes; does the child have special needs which warrant consideration and what would be the impact on the child if such a change was granted.
  • How to reestablish interrupted parent/child relationship: In a case where a parent has been absent form a child’s life for a lengthy period of time: under what conditions might it benefit the child to establish a relationship with the parent and what might the risks be to the child and current caretakers?
  • Chemical health/Mental health as it relates to providing a safe and consistent environment: In a case where there are allegations of instability in a parent: In what ways might a parent’s alleged substance abuse or mental health condition impair their ability to provide a safe and nurturing environment for the child during their parenting time? Does the parent suffer from a mental illness or substance abuse and if yes, then how might this impact their ability to provide a safe and consistent environment during their parenting time.
  • Determining developmentally appropriate parenting time for a child with special needs: In a case where a child is very young, or has special needs: Given a parental agreement or court ruling on legal and physical custody, what sort of parenting time schedule would be developmentally appropriate?
  • Parenting time following abuse/neglect allegations where there has been a lapse in contact: In a case with a young child and unsubstantiated allegations of abuse; How can access be allowed in a safe, developmentally appropriate and careful manner, especially if there has been a lapse in contact?
  • Parenting time schedule after relocation: In the context of a larger matter (custody or relocation) a well-defined issue may be identified for a BFA, for example; what would be a developmentally appropriate access plan if post-divorce relocation is allowed.
  • Assessing family dynamics where child is aligned with one parent, with suggestions to improve the relationship with the excluded parent: In the case of a child who appears aligned with one parent to the exclusion of the other; and assessment of the dynamics of the parent-child relationship with suggestions to improve the relationship, if appropriate to do so.

Provided by Hennepin County Family Court Services (4/2014)

Submitted by: Tom Walsh – VLN Resource Attorney
 

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Contempt Proceedings in Family Court

Introduction

Motions for civil contempt of court (the failure to obey a court order issued for the benefit of another party) are frequently seen in family court. Civil contempt proceedings have special rules and procedures that distinguish these proceedings from other family court motions. The purpose of this tip is to provide an overview of civil contempt in family court and provide a starting point for volunteers considering or encountering a contempt motion in their family law case.

Purpose of Contempt

The purpose of civil contempt is to compel compliance with a court order, not to punish parties for past behavior.1 Once a party is found in contempt, the court may impose a conditional penalty, including jail time, a fine, payment of fees, and other consequences. Examples of situations where contempt proceedings are appropriate include those in which a party has violated a parenting time schedule, failed to pay court-ordered child support or spousal maintenance, or failed to transfer a title of property.

Preparing the paperwork

Contempt proceedings are initiated by service of an order to show cause,2 notice of motion and motion and accompanying affidavits upon the alleged contemptor.3 The order to show cause must direct the alleged contempt or to appear and show cause why he or she should not be held in contempt and why the moving party should not be granted the relief requested in the motion.4 The order to show cause and the notice of motion and motion must contain the following: 1) a reference to the specific order or judgment of the court and date of entry or filing alleged to have been violated; 2) a quotation of the specific applicable provisions ordered; and 3) the alleged failures to comply.5 Once the proper paperwork is prepared, the attorney should submit the notice of motion and motion, affidavits and the proposed order to show cause to the assigned judicial officer.6

Service

Once the order to show case is signed, the next step is to serve the contemptor with the paperwork referenced above. An order to show cause must be served directly on the alleged contemptor, not on the alleged contemptor’s attorney.7 The person serving the documents must show the original order to the alleged contemptor and then hand the alleged contemptor copies of the order to show cause, notice of motion and motion and supporting affidavits. After service is complete the person serving the documents must complete an affidavit of service and return the original order back to the serving party for filing. (It is best practice to contemporaneously notify opposing counsel that your client is initiating contempt proceedings.)

The Contempt Hearing

The alleged contemptor must have to opportunity to appear and testify before the court.8 When making a finding for contempt, the court looks at factors set out in Hopp v. Hopp.9 Where appropriate, the court will make a finding of contempt and enter a sentence. The court will establish purge conditions that allow the contemptor to avoid the imposition of the sentence. When establishing the purge conditions, the court must determine that the contemptor has the ability to meet those conditions.10 At the second hearing the contemptor has the opportunity to demonstrate compliance with the purge conditions.11 Failing to comply with the purge conditions may result in confinement.

Practice Tips

    • Take efforts to resolve the issue prior to a contempt motion. Some attorneys will attach proof of efforts to resolve the issue, such as a letter to the contemptor, to the client’s affidavit.
    • Consider alternative forms of relief. For example, a motion for compensatory parenting time may be more effective than a motion for contempt.
    • Volunteers representing clients who have received an IFP order are encouraged to use the local sheriff to serve the order to show cause.
    • Set client expectations – remind them that the purpose of contempt is not to punish the other party.
    • Come to the contempt hearing with possible purge conditions and a plan for how you want the conflict resolved.
    • Think about the consequences of incarceration. A jailed party may not be able to maintain his or her employment.
    • Contempt, particularly where confinement is concerned, is a complex area of law. All volunteers new to family law and contempt proceedings are strongly encouraged to read the relevant case law and speak with an experienced practitioner if they have questions about how these proceedings may or may not apply to specific cases.

1 Mahady v. Mahady, 488 N.W. 2d 888, 809 (Minn. Crt. App. 1989).
2 Minn. R. Gen. P. 309.01 allows for contempt proceedings to proceed without an order to show cause. As detailed in the comments to the 2012 amendments, “use of an order to show cause is the preferred method to commence a contempt proceeding if there is a meaningful risk that the alleged contemptor will not appear in response to the notice of motion.” For the purposes of this tip the author is assuming the moving party is using an order to show cause.
3 Minn. R. Gen. P. 309.01(a).
4 Minn. R. Gen. P. 309.01(b).
5 Id.
6 Volunteers are encouraged to contact the judicial officer’s clerk to determine the best method for submitting the materials.
7 Minn. R. Gen. P. 309.01 (b).
8 Minn. R. Gen. P. 309.02
9 Hopp v. Hopp 156 N.W. 2d 212, 216-17 (Minn. 1968). For space purposes, the factors are not included in this tip; however, an understanding of the Hopp factors is required in every case. (1) the court has jurisdiction over the subject matter and the person; 2) a clear definition of the acts to be performed; notice of the acts to be performed and a reasonable time in which to comply; an application by the party seeking enforcement giving specific grounds for the complaint; 5) a hearing, after due notice, to give the nonperforming party an opportunity to show compliance or the reasons for failure; 6) a formal determination by the court of failure to comply and, if so, whether conditional confinement will aid compliance; 7) an opportunity to comply despite a good faith effort; and 8) the contemptor’s ability to gain release through compliance or a good faith effort to comply. Id.
10 Mahady v. Mahady, 488 N.W. 2d 888, 890 (Minn. Crt. App. 1989). This is sometimes referred to as giving the contemptor the “keys to the jail.”
11 Id.

Submitted by: Tom Walsh, VLN Resource Attorney

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Emergency Relief in Family Court

A common issue faced by new and experienced family law practitioners is the need for emergency relief. When is an emergency really an emergency? What are the procedures for obtaining emergency relief? What does a judge or referee consider when deciding whether to grant emergency relief? This tip focuses on emergency relief related to children.

WHAT IS EMERGENCY RELIEF?

The two main forms of emergency relief in family court cases are ex parte orders and accelerated hearings. An ex-parte order is an order signed by the court solely upon the application of one party without argument from the adverse party. An accelerated hearing is a hearing where the court has waived the 14 day notice requirement required by MN Rules of Practice 303.03. Depending on the court’s determination of the level of emergency the accelerated hearing may be granted in addition to or instead of the relief requested in the ex parte order. Where the ex parte relief granted affects custody and parenting time, Rule 304.04 requires an accelerated hearing within 14 days from the date the emergency relief is granted.

PROCEDURE

Rule 303.04 of the General Rules of Practice addresses the procedure for requesting emergency relief. The party seeking relief must state in specificity in a motion and affidavit:

a)     Why emergency relief is requested;

b)     The relief requested;

c)     Disclosure of any prior attempt to obtain the same or similar relief and the result;

d)     If there was a prior attempt to obtain emergency relief, the name of the judicial officer to whom the request was made;

e)     If the prior request was denied for the same or similar relief, explain what new facts are presented to support the current motion.

A party has an obligation to serve the adverse party with the motion and affidavit, including notice of the time and place the motion will be heard unless:

a)     The party seeking emergency relief provides a written statement that the party has made a good faith effort to contact the other party or counsel and has been unsuccessful or

b)     The supporting documents show good cause why notice to the other party should not be required and the court waives the notice requirement.

If a case has not been filed an emergency filing order is necessary to expedite the opening of a case file. Note that in order to open a file you must include the underlying pleadings and paper-work in addition to the materials requesting emergency relief. For example, if you are seeking an ex parte order granting a grandparent temporary custody you must also file a petition for 3rd Party Custody at the same time.

In Hennepin County, the party seeking relief shall contact the chambers of the judicial officer assigned to the case. If the case has not yet been filed, the motion, affidavit and accompanying materials are provided to the signing judge.

PRACTICE TIPS

While the procedure for seeking emergency is relatively straight forward, determining whether to seek emergency relief in the first place is not. The following practice tips can help guide you through the process.

1)     Nature of the Emergency – Emergency relief is a high standard to meet.  There is not a checklist of circumstances or occurrences that are pre-determined emergencies. The facts and circumstances of each case determine whether emergency relief is appropriate. Generally an emergency situation resulting in action by the court requires the potential for immediate harm to a child should the court fail to act. This could include where a child is being exposed to a sexual predator, removing the child from the state without permission, withholding a child and not providing necessary medical care or medication.

2)     Accelerated Hearings vs. Ex Parte Orders – In practice the standard to obtain an ex parte order is often whether the children are in imminent danger of harm. Where this standard is not met the court will often schedule an accelerated hearing to address the emergency issues with both parties present. While not immediate relief the accelerated hearing allows the issue to be addressed in an expedited manner. Keep in mind that a party can request an accelerated hearing without seeking an ex parte order.

3)     Notice – Notice is a prime consideration for the court in these cases. You will be asked if you gave notice to the other party that you were seeking emergency relief. Where appropriate consider submitting an affidavit of counsel detailing your efforts to contact the opposing party. If you are asking for relief without notifying the other party specifically state the reason why in your client’s affidavit. If you obtain an order for accelerated hearing or ex parte relief, be prepared to immediately serve the opposing party.

4)     Be prepared to provide the court additional information – This could include taking testimony from your client or contacting the adverse party from the courtroom.

5)     Do your homework – Your client is asking the court to grant extraordinary relief. Your credibility is at stake if the court determines the reality of the situation does not match the facts presented by your client. You may also lose credibility when bringing a motion that does not meet the high standard that is required for emergency relief.

 

Submitted by: Tom Walsh, VLN Resource Attorney1

1This tip was inspired by an article by Larry McGee in the Family Law Forum, Volume 21, No. 1 (Winter 2012-13). The article can be found online at: http://www.mnbar.org/sections/family-law/2012-13%20Newsletter/FLNewsWinter12-13.html.

Divorce and Bankruptcy

The financial situation of individuals and families changes dramatically in the wake of a divorce. Where there was one household, now there are two with two sets of food, housing and other expenses. Additionally, divorce can create an unexpected disruption to family income pushing individuals and families into debt or further into debt. Clients facing divorce may consider filing bankruptcy in order to deal with substantial marital debt so they can truly get a “fresh start” after the divorce. However, some practitioners might not immediately know the answers to questions about the effects bankruptcy and divorce have on each other, and the best timing for filing bankruptcy. Below is a brief outline of some of the major issues that affect chapter 7 bankruptcy and divorce.

CHILD SUPPORT AND SPOUSAL MAINTENANCE IN A CHAPTER 7 BANKRUPTCY

Certain debts are not dischargeable in bankruptcy. When a debt is characterized in the divorce decree as a domestic support obligation, such as child support or spousal maintenance, it is clear that debt is not dischargeable.1 Additionally, while the automatic stay, a provision of bankruptcy law that stops all collection efforts harassment and foreclosure actions, will halt collection of past due support, it does not apply to current and ongoing support obligations.

When the debt is not clearly characterized as a domestic support obligation, whether the debt is dischargeable depends on how the parties have characterized it in the judgment and decree. Debts “in the nature of support” are not dischargeable.2 Generally, if a debtor has assumed some other debt in lieu of a support obligation, that debt is characterized as domestic support.3 For example, if a debtor’s child support obligation is less because he agreed to pay certain credit card debt and medical expenses, the debt and medical expenses are not dischargeable in a chapter 7 bankruptcy.4 Family law practitioners should take extra care when drafting this language as this area is ripe for dispute.

THE EFFECT OF DEBT DIVISION IN A BANKRUPTCY

When a marital dissolution involves a division of marital debts, one party often assumes a debt held by both parties and holds the other party harmless from it. When the party who has assumed the debt successfully discharges a debt held in both parties’ names, the creditor will seek to collect payment from the other party. The party who was held harmless on the debt can then seek to collect payment from his or her spouse. Like child support and spousal maintenance, property division debts are not dischargeable in bankruptcy.5 However, the parties often have to go back to family court to sort out these issues, which, depending on how much money is at issue, may not be economical.

It is important for divorce clients to understand that, should their former spouse file bankruptcy or quit paying debts, the divorce decree will not prevent creditors from attempting to collect on debts that were originally held in both parties’ names. In dissolutions where bankruptcy is being considered by either party, it is best to advise the client of this possibility when determining how to divide marital assets and debts. Jointly filing bankruptcy before divorce may be the preferred option.

WHETHER TO FILE BANKRUPTCY BEFORE OR AFTER FILING FOR DIVORCE

Generally, as long as the parties are still married, they can file a joint bankruptcy. This may allow for greater exemptions and may save more of the parties’ assets. When a couple jointly files for a chapter 7 bankruptcy, there is one filing fee, one lawyer and one legal bill. It can also be much easier to resolve issues surrounding assets, debt, and support in divorce proceedings and prevent return trips to family court if bankruptcy has discharged certain obligations. Another benefit for divorce clients is that a joint bankruptcy provides for full financial disclosure from both sides. This can make divorce settlement easier.

Alternatively, sometimes there are benefits to filing for bankruptcy after divorce. The individual debtor’s assets and debt obligations are much clearer after divorce, which may make filing for bankruptcy easier. It is also worth considering whether either the individual debtor or the married debtors’ income would be too high to qualify for a chapter 7 bankruptcy filing. Other considerations, such as whether the client or spouse has filed bankruptcy in recent years, whether the client is judgment proof and whether the client is willing to part with his or her belongings, may affect the choice to file bankruptcy.

MINNESOTA STATUTE 519.05(a) DEBT DIVISION AND COLLECTIONS BY THIRD PARTY

Generally, a spouse is not liable for a debt solely in the other spouse’s name. However, spouses who live together are jointly and severally liable for necessary medical services provided to either spouse and necessary household articles and supplies furnished to and used by the family.6 Notwithstanding this statute, a court may still apportion medical debt between parties in a marital dissolution.7 Due to lack of case law it is unclear whether allocation of medical debt in a divorce decree will actually prevent a creditor from attempting to collect the debt from the spouse who did not receive services.

PLEASE NOTE:

The treatment of marital debt, property division and support in a bankruptcy is complex issue. VLN volunteers are strongly encouraged to speak with a mentor attorney or VLN resource attorney if these issues arise in their VLN case.

Submitted by Jenna Cieslak Hanson, Robina Public Interest Scholar Attorney 

1 Doughtery v. Doughtery, 1991 WL 75256 at * 1 (Minn. Ct. App. 1991).
2 11 U.S.C.A. § 101(14A)(B).
3 Id.
4 In re McLain, 241 B.R. 415, 421 (B.A.P. 8th Cir. 1999).
5 Fast v. Fast, 766 N.W.2d 47, 48-49 (Minn. Ct. App. 2009).
6 Minn. Stat. § 519.05(a).
7 Id.


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IMMIGRATION BASED CLAIMS FOR SUPPORT IN FAMILY COURT

INTRODUCTION:

A new immigrant to the United States is required to have a sponsor(s) who asserts that the sponsor will financially support the immigrant. An individual sponsored in this way who is a legal permanent resident, commonly referred to as a “green card” holder, may be able to make a claim for monthly support payments in a dissolution based on the immigration affidavit of support. Immigration affidavits of support as a basis for claiming spousal support is a relatively novel claim. Binding law in Minnesota on the topic of enforcing affidavit of support as a contract does not exist at the time of this writing.  This note is for informative purposes only and to provide a starting point for attorneys interested in pursuing this type of claim.

The “Affidavit of Support”, form I‐864 is a document required to become a green card holder.  This document may entitle the green card holder, or sponsored immigrant, support up to 125% of the federal poverty guidelines from their sponsor, who is often their spouse.  If your client makes more than 125% of the federal poverty guidelines, this tip does not apply. If your client has not yet obtained their green card, their sponsor may not have filed out form I‐864, but form I‐134 which does not create the same contractual rights.

WHY BRING AN IMMIGRATION BASED SUPPORT CLAIM?

A support claim based on an affidavit of support is distinct from a claim of spousal maintenance. An immigration based support claim has several advantages versus spousal maintenance (but you can and should bring both claims where appropriate).  Be aware that the Court could choose to offset a contract amount with maintenance, or vice versa.  Also, if maintenance was awarded at a rate at or above 125% of the federal poverty guidelines, your client would not be eligible to enforce the I‐864 contract. Reasons to seek an immigration based support claim include:

  • Length of time‐ the I‐864 provides for payments until:  sponsored immigrant  earns 40 quarters of qualified social security (typically 10 years) or when the green card holder (sponsored immigrant) becomes a citizen (at least 5 years) or when they are ordered removed. This could be helpful for clients in short term relationships.
  • Payors Income Not a Factor – An immigration based claim is not based on family law factors in Minn. § 518.552 like duration of relationship or sponsor’s ability to pay.
  • Frequency of Payments – May be able to get monthly payments for your client where maintenance would not typically allow for payments‐ such as when the sponsor is receiving disability, or has not been working.
  • Tax Implications – Can you offer to drop the issue in exchange for property like a payment of a 401K at a higher rate so that this will not be reported as income on taxes?   Otherwise, report as income on taxes.

Immigration based claims of support also have some disadvantages when compared to spousal maintenance:

  • Contract Claims are Dischargable – Contractual rights are dischargable in bankruptcy.  One option is to get an agreement from the other party to secure the debt with real property or an interest in a 401K.
  • No Binding Authority – There is no binding precedent authority on enforcing the I‐864 as a contract right in Minnesota. Therefore results may vary from judge to judge and venue to venue. The attorney bringing the claim will also need to brief the court on the issues as it may be completely new to the hearing officer.  If you are representing the sponsor, there are issues regarding the congressional intent of the form, and whether it was created as a way to reimburse the government for assistance a sponsored immigrant receives, or whether the sponsored immigrant has the right to bring the claim as an individual, and whether jurisdiction is appropriate in a state family law court.

TIPS ON BRINGING A CLAIM:

Step 1:  You will need a copy of your client’s affidavit of support, form I‐864.

  • You can request a copy of this form or other immigration records, request them by filling out and faxing an immigration Freedom of Information Act form.  This form can be found at www.uscis.gov under the “forms” section as form G‐639.

Step 2:  Arguing jurisdiction in family court is appropriate

Since this is an issue of first impression in Minnesota you may need to argue why the trial court has jurisdiction to address this claim, especially because you are asking a state court to enforce a federal law contract issue. Possible arguments for the court having jurisdiction over the claim include:

  • Immigration forms involve federal law, and jurisdictions are split as to whether the person being sponsored has the right to sue on their own behalf, or whether only the government has the right to sue on behalf of assistance they provide when the sponsored party falls below 125% of the federal poverty guidelines.  This issue has not been decided in Minnesota.
  • The governing statute enforcing the I‐864, 8 U.S.C. §1183a(1)(C) provides that, “the sponsor agrees to submit to the jurisdiction of any [f]ederal  or [s]tate court for purposes of actions brought under [8 U.S.C. §1183a](b)(2).”
  • The I‐864 contractual obligation can be enforced by the sponsored alien.  8 U.S.C. §1183a(1)(B).   An action to enforce an affidavit of support can be brought against the sponsor in any appropriate court by a sponsored alien with respect to financial support.  8 U.S.C. §1183(e).
  • Because the majority of the proceeding will involve state divorce law, state court is the most appropriate venue.  Federal Courts have discretion to remand “all matters in which State law predominates.”  28 § U.S.C. 1441(c).

Step 3:  Arguing to enforce the I‐864 as a contract.

  • Argue offer, acceptance and consideration using case law from other jurisdictions, and the language contained in the form I‐864 and its instructions.  The language in the form and instruction contain the terms of the contract, spelling out issues like “consideration” and how long the obligations continue.
  •  Federal courts that have addressed the issue have consistently found that form I‐864 is a legally binding and enforceable contract between a sponsored immigrant and the sponsor executing the form; state courts that have addressed the issue have also held that I‐864 is a binding contract.  (See www.fordwlaw.com/practice‐areas/family‐law/  for an example motion with citations).  Again, at the time of writing this there is no binding authority in Minnesota on the issue, and even outside of Minnesota there are Courts that have held the I‐864 is not a binding contract that a sponsored immigrant can enforce.

CONCLUSION:
Claims of spousal support based on I‐864 affidavits represent a potentially powerful tool in the family law practitioner’s tool belt. However, due to the lack of binding authority the basis for bringing a claim will vary from court to court and judicial officer to judicial officer. Attorneys should check updated case law and consult with other practitioners in their practice area before making a claim.

Submitted by Shauna Kieffer, Ford Law Office

Changes to Minnesota Rules of Family Court

Earlier this year, the Minnesota Supreme Court released its amendments to the Minnesota Rules of Practice for the District Courts which pertain specifically to the Rules of Family Court. The amendments are targeted at updating terminology, streamlining proceedings in family court actions, and creating three new forms to be drafted by the state court administrator. Some of the major changes are highlighted below. These Rules become effective May 1, 2012 and can be found online at www.mncourts.gov under Court Rules.

CHANGES TO TERMINOLOGY

Defining Family Law Actions – Rule 301.01

Rule 301.01 introduces the term “Family Law Actions” which refers to a specific set of proceedings enumerated in section (b) of the rule. While the list of actions falling under the family court umbrella is not new, this is the first time it has been listed as part of the rule instead of the Advisory Committee Comment. This eliminates confusion regarding what types of proceedings are covered by the rules of family court.

Practice Tip: Note that child support proceedings commenced in the Expedited Child Support Process are excluded from a significant portion of Rules 301 through 314 as they have a separate set of Rules found in Rules 351 through 379. Adoption proceedings are also excluded from the umbrella of Family Law Actions and are governed by the Rules of Adoption Procedure.

Designation of Parties – Rule 302.02

Parties to most family law matters are designated Petitioner and Respondent. This amendment expands the terminology to all Family Law Actions, including parentage (paternity) and public assistance reimbursement cases, where the parties were previously designated plaintiff and defendant. Prior to the amendment, after formal designation of the parties to the action, the parties could then be referred to by a slightly less formal familial designation as Husband and Wife. The amendment expands the list of acceptable terminology to reflect the evolving definition of family encompassed in Family Court Actions. The rule now provides that in addition to husband and wife, father and mother is also acceptable, in addition to other designations as applicable such as grand-parent.

Practice Tip: Use these familial designations to avoid confusion specifically when there are multiple petitioners or respondents or in cases where there are a significant amount of pleadings submitted to the Court. It eliminates confusion for the court and other evaluative professionals as well as the parties and counsel.

Practice Tip: Use the language contained in Rule 303.02 (a) when making the transition from party designation to familial designation:

Petitioner is hereby referred to as (familial designation), and respondent as (familial designation)

MOTION PRACTICE

Notification of Hearing Required in Writing – Rule 303.01 (a)

Rule 303.01 (a) requires the party obtaining the motion date to “promptly” notify the other parties in writing of the date and time of hearing, the judicial officer, if known, and the primary issues to be addressed at the hearing. While the term “promptly” does not implement a strict deadline, the Advisory Council Comment does suggest that it is intended to mean the same day that the hearing date was obtained. This written notice can be the Notice of Motion, but the rule simply states that it must be a written notification, so a letter would be acceptable. Also note that there is an exception to the notification requirement if the parties reside in the same residence and there is a “possibility of abuse”.

Practice Tip: An Order for Protection or other finding of domestic abuse is not required for this exception to apply, but the court retains the ability to impose sanctions if the rule is abused.

Affidavits and Supporting Documents – Rule 303.02

The rule regarding supporting affidavits for motions is amended to provide that each affidavit is a signed, sworn, and notarized statement. While this requirement is not new, the amended rules explicitly state this requirement four times within Rule 303.03 in an effort to stress the significance of this rule. It is a common practice in family law cases for a party to submit improperly executed affidavits to the Court in support of a motion. This often occurs where a party insists on submitting letters or statements from family members or friends that are not signed, sworn, and notarized. These types of communication, submitted as freestanding documents, are not acceptable as supporting documents to a motion.

Practice Tip: Often clients are given the task of obtaining statements from family, friends or professionals for their pleadings. Discuss the requirements of the Affidavit with your client before he or she makes the request to the third party and provide a form to ensure that the document is properly executed.

Practice Tip: Letters and unsworn statements may be admitted as exhibits to a sworn affidavit. However, these statements do not carry the same weight as a signed, sworn, and notarized affidavit.

Parties Must Attempt Settlement Prior to a Motion Hearing – Rule 303.03 (c)

Rule 303.03(c) requires the moving party to initiate a settlement conference either in person, by telephone, or in writing within seven days from filing motion. This conference shall include a discussion of an appropriate Alternative Dispute Resolution (ADR) process under Rule 114. The moving party must then file with the Court a Certificate of Settlement Efforts no later than 24 hours prior to the hearing that the party has complied with this rule or indicate the reasons for not complying. Under the Rule, the only reasons for not complying are where the motion was brought pursuant to a parentage case where the court has not yet determined the existence of a parent-child relationship, where there is a no contact order (includes an Order for Protection, Harassment Restraining Order, criminal No Contact Order, and a no contact provision in an existing family court order) between the parties or where the Court finds good cause.

NEW FORMS

Parenting/Financial Disclosure Statement

This statement will replace both the Application for Temporary Relief and the Prehearing Statement. The statement must be filed with the Motion for Temporary Relief when financial relief is requested. This statement, or an updated statement, is also filed seven days prior to the Pretrial Conference. Note that the Supreme Court has modified the term “Prehearing Conference” to “Pretrial Conference” and that the deadline for filing the Parenting/Financial Disclosure Statement is reduced from ten days to seven. However, the provision “mailed to” has been removed from the rule requiring that the document must be filed within seven days and not simply placed in the mail.

Certificate of Settlement Efforts

As indicated above, Rule 303.03(c) requires the moving party file a Certificate of Settlement Efforts with the Court no later than 24 hours prior to the party’s motion hearing indicating that the party has complied with the rule by initiating a settlement conference with the other party or indicating why the party should not be required to comply with the rule.

Initial Case Management Statement

This document replaces the Informational Statement, but must still be filed within 60 days of the initial filing, or sooner if the Court requires. A version of this document is already used in most, if not all, county courts in Minnesota. However, the state court administrator is now directed to create one form that can be adapted for all counties in the state.

These forms are being created by the state court administrator and will be available online.

Submitted by Sonja Larson, The Law Office of Sonja C. Larson, LLC 

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April 2012 Minnesota Rules of Family Court

 

Ten Tips for New Family Lawyers

I originally wrote this article to commemorate my time as a law clerk in Family Court and to offer the following practical suggestions to practitioners who may be new to family law.1 I have revised it slightly to reflect information that has come to my attention since the article’s original publication. While some of these suggestions may seem obvious, I believe that they are worth repeating in light of the number of times I observed or experienced practitioners of all levels ignoring them.2

1. Settle the case. Use your best efforts to settle the case before bringing it to the court. Recognize that the relationship of the parties will likely continue well into the future. Settling the case provides a positive start to the new relationship that the parties will need to craft, either as parents, or perhaps as reticent financial partners. In addition, your chances of declaring all-out victory at the end of the proceedings are low, and the cost of pursuing the proceedings all the way to the finish may be prohibitive for your client. In the event that you are forced to proceed all the way to trial or an evidentiary hearing, it always helps to demonstrate to the court that you made honest efforts to settle the case, particularly if you are requesting conduct-based attorney fees.3 In addition, if the proceeding occurs after entry of the Judgment and Decree, the Decree itself may require some form of alternative dispute resolution before filing a motion with the court. Finally, Minnesota law requires certain settlement efforts prior to filing any motion with the court, except motions for temporary relief.4

2. Do not call the court’s clerks for legal advice. Do your own legal research. This includes questions that involve interpretation of court rules, such as filing deadlines.

3. Do call the court’s clerks with procedural questions that are not addressed by cases, statutes, and court rules. Do not assume that you know the answer when you call the judge’s chambers. Simply state your question. For example, does the judge prefer an informal telephone conference to resolve discovery issues, or does he/she prefer a formal motion hearing? How does the judge handle motions for temporary relief? Does the judge permit letter argument in lieu of filing a motion?

4. Resist any temptation to “poison the well.” Do not call the court’s clerks and recite the nastiest allegations you can think of about opposing counsel and/or their client en route to asking your question. Your efforts will be in vain because the clerks will not pass on your ex parte diatribe to the judge. Moreover, your credibility in the eyes of the clerk will suffer and your client pays extra for the time that you spend bad-mouthing opposing counsel and/or their client.

5. Call the court’s clerks before sending any written correspondence to the court. Many judges do not accept any unsolicited correspondence.5

6. Raise discovery issues before trial or a hearing. Remember that the Rules of Civil Procedure apply in Family Court.6 If you are engaged in informal discovery and hit a roadblock, consider initiating formal discovery procedures. If in doubt, call the court’s clerk to inquire as to whether the judge will address informal discovery disputes. If you have already served discovery requests on the other party and they fail to comply, file a motion to compel and obtain an order directing the other party to comply with your requests.7 If the party disregards the order, move for sanctions.8 If you have not followed the steps described above, do not appear at the hearing without evidence and assume that the court will automatically order the sanction that you are now requesting.9 It is always preferable to present to the court a specific discovery order that the other party has not followed. Moreover, recognize that obtaining sanctions may not entitle you to victory on your underlying claim. Presenting evidence at a hearing is always better than presenting no evidence and requesting discovery sanctions.

  1. Check with the court’s clerks to determine whether the judge wants courtesy copies of pleadings, exhibits, etc. in advance of your hearing or trial. Some judges love courtesy copies. Other judges despise them. Judges frequently issue pretrial or trial orders that contain instructions with respect to courtesy copies. If there is no order (a common situation if you are litigating a post-Decree motion), contact the court’s clerks for clarification. If you do submit courtesy copies, hand delivery of a courtesy copy to chambers is the surest way to guarantee that the judge receives your paperwork in time to consider it before the hearing. Make sure that your exhibits are well-organized and clearly tabbed and marked for quick reference by the court.
  2. Trial/motion practice tips:

a. Prepare your client and make sure they attend (on time). Your client knows more about the case than anyone, and they need to attend every proceeding. Do not assume that the judge will not ask your client questions at a motion hearing (or, for that matter, any other proceeding). Preparing your client for questions has at least two benefits to you. First, it prepares you and your client for the hearing. Second, it forces you to confirm your client’s position on a variety of issues and allows you to craft alternative proposals or arguments if the court does not accept your preferred argument.

b. Document your facts. The court needs to have evidence upon which to base its ruling. You need to provide the evidence. For example, if you argue that your client should be reimbursed for medical expenses paid on behalf of the parties’ child, you need to document that your client actually incurred the expenses, and that your client actually paid them. Do not assume that the court will believe your client’s testimony over that of the other party without documentary evidence to bolster your client’s claim.

c. Be organized. Do not present a jumble of complex information without a concise summary. Voluminous documentation may be necessary to support a claim, but the information is far more effective if it is summarized and quickly accessible by the court.

d. Do not dwell on the facts at oral argument. Your client’s affidavit should give the court facts from which to draw a conclusion and you need not dwell on the details unless the court asks questions about them. Focus your argument on why the facts as you have presented them compel the conclusion that you want the court to reach.

  1. Submit a memorandum of law with your motion and your client’s affidavit.10 This has three desired effects. First, it provides a concise legal argument to the court and focuses the court’s attention on any legal issues that must be resolved. Second, it should shorten your client’s affidavit, because you do not need to make legal argument in your client’s affidavit and your memorandum of law. Third, writing a memorandum of law forces you to consider whether your argument has a legal basis. You should clearly identify the authorities upon which you expect the court to rely to rule in your favor. Do not assume that the court is familiar with the statute, case, rule, etc., that constitutes the linchpin of your argument.
  2. Propose a solution. Do not simply describe the problem and expect the court to fix it. Present a concrete solution in your memorandum of law or oral argument that the court can accept, reject, or modify. For example, if your client is requesting modification of the other party’s maintenance obligation, you should have an actual number, based on documentary evidence and testimony, to propose to the court. If your client wants expanded parenting time, tell the court what the new schedule should be, and why. Judges like to hear or read your proposed solution; it gives them something to work with.
  3. Be courteous to everyone. This includes the judge, his/her staff, opposing counsel, and the opposing party. Do not give in to the temptation to become emotionally involved in any dispute, no matter how big or small. It only serves to undermine your credibility before the court.
  4. Trial/motion practice tips:a. Prepare your client and make sure they attend (on time). Your client knows more about the case than anyone, and they need to attend every proceeding. Do not assume that the judge will not ask your client questions at a motion hearing (or, for that matter, any other proceeding). Preparing your client for questions has at least two benefits to you. First, it prepares you and your client for the hearing. Second, it forces you to confirm your client’s position on a variety of issues and allows you to craft alternative proposals or arguments if the court does not accept your preferred argument.b. Document your facts. The court needs to have evidence upon which to base its ruling. You need to provide the evidence. For example, if you argue that your client should be reimbursed for medical expenses paid on behalf of the parties’ child, you need to document that your client actually incurred the expenses, and that your client actually paid them. Do not assume that the court will believe your

    client’s testimony over that of the other party without documentary evidence to bolster your client’s claim.

    c. Be organized. Do not present a jumble of complex information without a concise summary. Voluminous documentation may be necessary to support a claim, but the information is far more effective if it is summarized and quickly accessible by the court.

    d. Do not dwell on the facts at oral argument. Your client’s affidavit should give the court facts from which to draw a conclusion and you need not dwell on the details unless the court asks questions about them. Focus your argument on why the facts as you have presented them compel the conclusion that you want the court to reach.

    e. Submit a memorandum of law with your motion and your client’s affidavit.10 This has three desired effects. First, it provides a concise legal argument to the court and focuses the court’s attention on any legal issues that must be resolved. Second, it should shorten your client’s affidavit, because you do not need to make legal argument in your client’s affidavit and your memorandum of law. Third, writing a memorandum of law forces you to consider whether your argument has a legal basis. You should clearly identify the authorities upon which you expect the court to rely to rule in your favor. Do not assume that the court is familiar with the statute, case, rule, etc., that constitutes the linchpin of your argument.

    f. Propose a solution. Do not simply describe the problem and expect the court to fix it. Present a concrete solution in your memorandum of law or oral argument that the court can accept, reject, or modify. For example, if your client is requesting modification of the other party’s maintenance obligation, you should have an actual number, based on documentary evidence and testimony, to propose to the court. If your client wants expanded parenting time, tell the court what the new schedule should be, and why. Judges like to hear or read your proposed solution; it gives them something to work with.

    g. Be courteous to everyone. This includes the judge, his/her staff, opposing counsel, and the opposing party. Do not give in to the temptation to become emotionally involved in any dispute, no matter how big or small. It only serves to undermine your credibility before the court.

9. Do everything you can to avoid requesting ex parte relief.11 It is difficult enough to make decisions on the basis of diametrically opposed testimony with little or no corroborating evidence. It is nearly impossible to make decisions on the basis of one party’s statements alone. Most ex parte requests can be more effectively addressed by a motion and supporting affidavit for an accelerated hearing. If you must seek ex parte relief, make an effort to inform the other party that you are doing so and try to procure their attendance. It is better to have the other party available for the judge to contact than to expect the judge to issue an ex parte order.

10. Be aware of the proper mechanisms for enforcing the court’s Decree. Family court cases are rarely “over” after the Decree is issued. But not all remedies are available for every violation of the Decree. For example, contempt is generally not available to collect money12 or personal property owed to your client by the other party.13 Conversely, nonpayment of child support or maintenance is grounds for contempt14, as is “unwarranted denial of or interference with” court-ordered parenting time.15 Unpaid child support and maintenance obligations are judgments as a matter of law and may be docketed in an expedited fashion.16 Happily (or not, depending on who your client is), unpaid attorney fees are also proper subjects for contempt proceedings.17

Submitted By: Colin Kreuziger 
Colin Kreuziger is a 2006 graduate of the University of Minnesota Law School. He formerly served as law clerk to the Honorable Bruce A. Peterson (Fourth Judicial District). Currently, he serves as law clerk to the Honorable Robert D. Martin (Bankr. W.D. Wis.). His practice interests include bankruptcy law, family law, animal cruelty and farmed animal law, and environmental law.

1 This article reflects the opinions of the author alone. The opinions presented in this article should not be attributed to the Honorable Bruce A. Peterson, the Fourth Judicial District of the State of Minnesota, or any division thereof.
2 By offering these suggestions, I do not mean to denigrate the family law bar, which generally does an excellent job of providing quality legal representation to clients in a state of crisis.
3 See Minn. Stat. § 518.14, subd. 1(3) (2007) (permitting the Court to award “fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding”).
4 See Minn. Gen. R. Prac. 303.03(c).
5 Note that some forms of unsolicited correspondence are permissible. See, e.g., Minn. Gen. R. Prac. 115.11 (permitting two page letter to court for purpose of requesting permission to make a motion to reconsider).
6 See Minn. Gen. R. Prac. 301 (“Rules 301 through 313 and, where applicable, the Minnesota Rules of Civil Procedure shall apply to family law practice except where they are in conflict with applicable statutes or the Expedited Child Support Process Rules, Minn. Gen. R. Prac. 351 through 379.”).
7 See Minn. R. Civ. P. 37.01 (detailing proper procedures for filing motion to compel discovery).
8 See Minn. R. Civ. P. 37.02 (describing available sanctions for failure to comply with court orders related to discovery).
9 See Minn. R. Civ. P. 37.04 (stating that the Court “may make such orders as are just, including any action authorized in Rule 37.02(b)(1), (2), and (3)”) (emphasis supplied).
10 See Minn. Gen. R. Prac. 303.03(a) (setting forth documents that may be filed with the Court in connection with a motion).
11 Minn. Gen. R. Prac. 303.04 governs ex parte relief in Family Court proceedings.
12 See Minn. Stat. § 550.02; Burgardt v. Burgardt, 474 N.W.2d 235, 237 (Minn. Ct. App. 1991).
13 See Behr v. Behr, No. C8-95-428, 1995 WL 497337, at *2 (Minn. Ct. App. Aug. 22, 1995).
14 See Minn. Stat. § 518A.72.
15 Id. § 518.175, subd. 6(e).
16 See id. § 548.091.
17 See Burgardt, 474 N.W.2d at 237.

Understanding CHIPs Cases

On June 5, 2008 the Minnesota Board of Public Defense, announced that Public Defenders outside of Hennepin County would no longer be handling child protection matters. However, custodial parents and sometimes the children and guardians ad litem in child protection matters are still entitled to representation at the public expense. In essence, this means that there will be an increase in court appointed attorneys on child protection matters, and more of a demand for attorneys to volunteer in these matters. This article provides an overview of child protection cases. Due to the complicated nature of these cases, this article is merely an overview of the subject, providing practitioners with a roadmap to the complicated child protection statutes. This article also includes suggestions for attorneys new to this area of practice. While VLN typically does not represent clients in CHIPS proceedings, VLN clients often have had interaction with juvenile court. The following overview will help family law attorneys as they advise clients at clinics or represent their clients in family court.  [More…]

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Understanding CHIPs Cases

Submitted By: Elizabeth Powers