Brainerd, MN Attorney at Law

Family Law Mediation: Bring on the Negotiator

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Mediation is where family law meets the ‘negotiator.’

In almost all divorce and custody cases the court will require mediation.  A mediator who does not work for either side tries to persuade both sides to reach an agreement.  It seems easy, but getting a fair agreement that works for you is not easy.  Mediation works best when the attorney and client work together on a negotiating strategy to get the client what they need.  A good strategy usually involves not disclosing your bottom line right away as the other side will probably try to get you to go to less than what your bottom line is.  When the stakes are high in mediation you need a good negotiator on your side.


Bankruptcy: How important is your credit score?

Having good credit helps, besides allowing you to borrow money, you will usually save on your insurance.  If you can, keep your credit score up.  But, if you are over your head in debt, do not avoid taking action because you are worried about your credit.  If you are behind in payments, have judgments against your, are in collection or have had a repossession, your credit score has already gone down.
Filing bankruptcy to eliminate your debt will have little or no impact on your credit score once it has already dropped.  Filing will allow you to rebuild credit sooner than if you struggle for years to pay back the debt.  You can qualify for mortgages 3 years after filing, car and other loans sooner.  If you are putting food and gas on credit cards, getting money from family, not getting needed medical care for yourself or you family, getting calls from debt collectors, or otherwise not making ends meet due to debt payments do not avoid taking action because you are worried about your credit score.  At that point you have little to lose and much to gain by considering bankruptcy to eliminate your debt.  


What is the first question you ask an attorney?

Are you an attorney?

Sounds like a silly question.  It is not, because some people offering legal services are not licensed attorneys.  Being an attorney, like being a doctor, plumber or accountant requires a license.  Licensing means you have the required education and follow the rules of the profession.  Licensed attorneys are accountable, if they do wrong they can have their license suspended or revoked.  Some individuals who are not licensed attorneys offer legal services, often at a discount.  Using a non-attorney for legal work means that they do not have the required education or training, and if they mishandle your case they are not accountable to anyone.  

For the same reason that getting medical help from someone who is not a doctor, or having someone who is not a plumber fix your pipes, using a non-attorney for legal work is a bad move.  


Divorce or Cabin?

‘Don’t get a divorce, buy a cabin’ says a local realtors billboard.  I have never heard of a marriage being saved by buying stuff people do not need.  In the hundreds of divorces I have handled I have seen many marriages which failed due to financial stresses caused by overspending.  Spending money is easy, keeping a marriage going is hard work.  By the way, I heard through the grapevine that the realtor with the billboard got divorced anyway.  


What is custody?

What is custody?
Seems like an obvious question, but many people do not know that there are two different types of custody.

Joint legal custody happens in almost every case.  Joint legal custody means that both parents have equal rights to school and medical records, and the right to participate in making major decisions, ie major medical decisions, where a child goes to school, what religion a child is raised in.

Physical custody refers to where a child lives most of the time.  If one parent has physical custody that means the child lives with that parent for the majority of the time.  Joint physical custody means that the child spends about equal time with both parents.  There are some cases where the label joint physical custody is used but the child lives most of the time with one parent, these types of arrangements are becoming more common.
If the parents have joint legal custody, and one parent has sole physical custody, which is what happens in a majority of cases, the parent where the child does not live most of the time (legally called the non-custodial parent) is an important part of the child’s life, but the parent where the child lives most of the time will make most of the day to day decisions.  Joint physical custody when the parents have roughly equal time puts the parents on a roughly equal playing field in both major and day to day decisions.
What you do with custody has huge impacts on how your children will be raised for years to come.  Make sure you know all of the legal issues before you make the decision.

Attorney Fees

Fees are always a sensitive topic with many people asking why attorneys are expensive.  The main reason fees are high in the legal field is that it takes 7 years of post-secondary schooling to be an attorney.  College and law school are not cheap, take it from me.  There are ways you can save money on attorney fees.  Most important, do not fall for the fancy office and the tailored suits – if you wonder who is paying for them look in the mirror!  Contact your attorney when you need to as calling every day for updates will run your bill up.  

When I get calls and emails, I carefully think over every answer because the stakes are high.  Bad advice or a bad decision could cost one of my clients custody of their children, their freedom in a criminal case, or tens of thousands of dollars in a civil suit.  I take every case seriously because you would not be hiring me if the stakes were not high.  


The Weak Link

Courts place a lot of weight on the reports of Guardian Ad Litems, court appointed advocates for children who investigate and report on what is best for children.  A guardian is usually the only neutral person who is not working for one of the parents that the judge will hear from.  For this reason judge’s usually make a decision based on the guardian report.  The problem with this system in Minnesota is that very little training is required to be a guardian, and there are almost no protections in place against guardians who are not doing a good job.  Guardians receive 40 hours of training which is supposed to cover all aspects of the job, including the laws on custody and visitation, interview techniques, and evaluating physical and sexual abuse claims.  1 week is not enough to learn how to be a good child advocate.  We need to either invest more resources in the guardian program and hold it to higher standards, or not use it as the basis for decisions about custody and parental rights.  


Child Support

Two words that have generated a lot of controversy.  Clients tell me that they do not get enough support, or that they pay too much.  Bottom line, kids cost money to raise, as a parent I have learned that.  If your children are not living with you be prepared to pay money towards their support.  Calculating the correct amount is important and can be more complex than you might think.  If you have left a job and are making less money the court may do what is called impute income, meaning base support on your old job, not your new job.  Imputing income is a complex issue, if you leave a job you do not like or that you cannot work without harming your family life be prepared for an imputed income argument.  I have even seen judges order that a soldier who left military service at the end of their enlistment period and has a lower paying civilian job should pay support based on their military pay, even if they have a family and could be deployed to a combat zone if the re-enlist.  I do not agree at all with that decision.

If you need help in dealing with a child support issue, please call Edward R. Shaw, P.A. at 218-825-7030 for a free consultation!


If I do not like what the judge did do I get a do over?

You have the right to appeal, which is not a do over, meaning there will not be another trial.  The Court of Appeals will look at what the trial judge, the judge who heard your case at the county courthouse did and decide if the trial judge made a mistake, and if that mistake harmed your case.  The Court of Appeals can order that you have a new trial, reverse the decision of the trial judge, or tell the trial judge to make a new ruling based on instructions from the Court of Appeals.  Just because you do not like the result is not enough to win at the Court of Appeals.  
If you are thinking about an appeal there are strict time limits, if you do not appeal on time and follow the rules your case will not be heard no matter how strong it might be.  If you are considering an appeal get legal advice now.


Bankruptcy Filing Benefits

Bankruptcy gets rid of all your debt, except for house or car loans if you keep the house or car, and student loans in most cases.  All other debt, credit cards, medical bills, and personal loans are called unsecured and are wiped out (discharged) when you file for bankruptcy.  When you file for bankruptcy, creditors are required to stop trying to collect the money from you – they cannot call, send letters, sue you, or take money out of your paycheck and bank account.  If a creditor has already gone to court and gotten a judgment against you, the judgment stays on the books until you remove it, a separate step from the bankruptcy.  Until recently, judgment removal was one of the few bargains left in the court system, it could be done for a filing fee of $5.00.  Like most bargains, it did not last, now the court requires an additional filing fee of $322.00 to remove a judgment.  If creditors are hounding you and you file before they get a judgment, you will save $322.00 per judgment in court costs.  Every dollar counts, file soon and save a few.