Linnan & Associates Law Blog

Bankruptcy Basics Videos

2011-11-18T12:10:00.001-06:00

These videos come directly from the Federal Court website. They are a helpful resource when it comes to understanding the basics about bankruptcy.

Bankruptcy Basics

Child Support Basics - Calculating and Modifying Child Support

2011-11-07T16:50:00.001-06:00

Calculating and Modifying Child Support
What does the child support include?
--A monetary amount for the care, support, and education of the child, commonly referred to as “child support” or “basic support”
-- Medical support
-- Work- or education-related child care costs of the obligee, commonly referred to as “child care support”
-- Support arrears or reimbursement of public assistance payments already made on behalf of the child

What is medical support?
Medical support means providing appropriate health care coverage for the child, a cash contribution to reimburse for the cost of health care coverage or public coverage, or payment of the child’s uninsured and unreimbursed health care expenses. The court must determine whether a parent has appropriate health care coverage for the child. In making this determination, the court must consider the following factors:
(1) Is the coverage accessible?
(2) Is the coverage comprehensive?
(3) Is the coverage affordable?
(4) Does the child have any special medical needs?

If a parent has the child enrolled in health care coverage, the court must order that parent to continue coverage unless the parents request a change and the court finds that other coverage is more appropriate. If neither parent has appropriate health care coverage, the court must order the parents to contribute to the actual health care costs of the child on a pro rata basis. If the child is receiving any form of medical assistance, the parent with whom the child does not reside must pay a monthly amount toward the cost of medical assistance. Minn. Stat. § 518A.41, subd. 4.

How are child care costs handled?
The court must allocate work- and education-related child care costs to each parent in proportion to the parent’s combined parental income for child support (PICS). The costs will be adjusted by the estimated federal and state child care credits. If the obligor meets the income eligibility requirements for basic sliding fee child care, the court will order the obligor to pay the basic sliding fee monthly co-payment amount if this is less than the obligor’s proportionate share based on the combined PICS.

The amount allocated for child care is not subject to the automatic cost-of-living adjustment and can be modified if costs substantially increase or decrease. When the public authority provides child support enforcement services, the public authority must suspend collection of child care support when a party notifies the agency that the costs are not being incurred, and the agency has verified the information. The collection of child care support will resume when the agency is informed that the costs have resumed. A court may allow the obligor to care for the child while the parent with whom the child resides is working or attending school. This is not a reason to deviate from the guidelines.

How is the basic child support amount calculated?
Basic child support is calculated based on the combined gross income of both parents and is allocated based on each parent’s proportionate share of the combined parental income for child support. Minn. Stat. § 518A.34. The parents must provide documentation of earnings and income at the time they file their initial pleadings or motion documents.

A parent’s gross monthly income includes any form of periodic payment including wages, worker’s compensation benefits, unemployment benefits, military payments, pensions, disability benefits, self-employment income, and Social Security benefits for the parent and for the child if based on the parent’s eligibility. Gross income is calculated before any deductions for taxes, employment benefits, or retirement plans. Gross income does not include child support received, public assistance received, or the parent’s current spouse’s income. Court-ordered spousal maintenance obligations are deducted from monthly gross income.

The obligor is allowed a parenting expense adjustment based on the percentage of parenting time established by court order. If parenting time for the obligor and obligee is equal and parental incomes for child support are equal, no basic support will be ordered unless the court finds the expenses for the child are not equally shared. If the parenting times are equal, but the parents have different incomes, the parent with the greater income will pay basic support to the other parent.

The parents’ monthly incomes after adjustments are then added together to determine the combined parental income for child support (PICS). A combined basic support amount is determined by applying the combined PICS amount and the number of joint children to the guideline child support chart in the statutes. The chart provides the presumptive amount of combined basic support the parents should pay.

The guideline amount is then split proportionately between the parents based on their proportionate share of the combined PICS. The obligor’s proportionate share of the combined basic support amount is the amount of basic support the obligor will be ordered to pay.
After determining the support amount under the statutory guidelines, the court may look at several statutory criteria that allow a departure from that amount. These criteria, commonly known as “deviation factors,” include:
(1) the earnings, income, and resources of both parents,
(2) the extraordinary financial needs and resources and the physical and emotional
condition of the child,
(3) the child’s living standard if the parents were living together, but recognizing the new
existence of two households,
(4) whether the child has resided in a foreign country for more than one year that has a
substantially higher or lower cost of living than this country,
(5) who gets the dependent income tax exemption,
(6) the parents’ debts, and
(7) the obligor’s total payments for court-ordered child support.

Can the support amount change?
A child support order amount may change through a cost-of-living adjustment (COLA) or a
modification. Arrearages may also affect the monthly support payment.

Modifications. The state must notify parents to IV-D cases every three years of the right to request a review of their cases to see if a modification is appropriate. In addition to the right to request a review every three years, any party in IV-D and non-IV-D cases, including the county, may request a review to see if a modification is appropriate.
Modification of support can be obtained based on:
(1) substantially increased or decreased gross income of an obligee or obligor;
(2) substantially increased or decreased needs of an obligee, obligor, or child;
(3) receipt of public assistance;
(4) change in the cost of living for either parent;
(5) extraordinary medical expenses of a child;
(6) a change in the availability of appropriate health care coverage or a substantial
increase or decrease in health care coverage costs;
(7) addition of or substantial increase or decrease in child care costs; or
(8) emancipation of a child.

Calculation and Modification of child support are complicated issues. Having an experienced attorney to help you navigate the process will ensure you get the outcome that is right for you.

Don't overpay...Call 651-312-1201 to speak with an experienced attorney about establishing child support or modifying a support order TODAY.

Bankruptcy and Taxes: What you need to know.

2011-11-07T16:40:00.000-06:00

It's not even Thanksgiving yet, but tax time is just around the corner. With many families struggling to pay the bills this holiday season, it is especially important to protect the assets you already have and are expecting to receive. If you have unpaid bills and creditors are harassing you, it is important to know how to protect your 2011 State, Federal and Property Tax Refunds.

Call our office at 651-312-1201 for a FREE consultation to find out how you can best protect this asset.

Child Support Basics - Direct from the Minnesota Legislature

2011-10-25T17:13:00.000-05:00

This article is an excerpt from the Minnesota House Research Department's research brief, update September 2011:

The Players, Their Roles, and Getting Started

Federal Government
Minnesota Statutes have long provided for child support orders in cases where parents separate, divorce, or have never married. In 1975, the federal government also became involved in this issue. Congress enacted laws aimed at establishing uniformity and setting minimum standards in state child support enforcement systems. The goal was to reduce the demand for public assistance by more effectively enforcing child support orders. The federal government began providing funding to states with child support systems that met federal requirements. Currently, the federal government contributes about 74 percent of the state’s total child support enforcement funding. Most of that contribution is funded through Federal Financial Participation
(FFP), provided at a flat rate of 66 percent of state and county spending. The rest comes from financial incentives paid to the state and distributed to counties for paternity adjudication, establishment of support, child support enforcement, collections for both current support and arrears, and cost effectiveness. The state bears about 8 percent of the total cost and Minnesota’s counties shoulder the remaining 18 percent. Over the years, to qualify for federal child support enforcement funding, as well as public assistance funding (Temporary Assistance for Needy Families), Congress has required states to enact various kinds of legislation on child support. States also must comply with a variety of federal regulations related to funding.

State Government
Legislature. The legislature sets child support policy in Minnesota. State policy is greatly influenced by the federal requirements that are prerequisites to receiving federal welfare and child support funds. However, the federal requirements are often general in nature, leaving the details up to the legislature.

Department of Human Services. The Department of Human Services (DHS) is the primary executive branch agency responsible for overseeing Minnesota’s child support system, which is administered by county child support offices. The state agency:
 runs the statewide computer system and maintains statewide data on child support;
 provides training and assistance to the counties;
 operates Minnesota’s centralized child support payment center;
 manages and disburses federal and state child support funding;
 maintains and manages administrative enforcement tools; and
 provides overall guidance for Minnesota’s child support system.

Counties. Counties do a lot of the hands-on work in Minnesota’s child support system. Counties deal directly with the families involved. Child support services are typically located within the county human or social services department. The caseworkers are called child support officers or child support workers. They work closely with the county attorney, who provides legal advice and represents the county (not the child or parents) in child support actions.

Public Authority. Minnesota’s child support statutes refer to the “public authority.” The public authority means the local unit of government, acting on behalf of the state, that is responsible for child support enforcement. The public authority can be either DHS or the county child support office.

Judicial Branch. The judicial branch interprets and applies the child support laws in individual cases. There are a few different types of decision makers who preside over child support matters. The first is a district court judge—a regular judge having authority over all matters in district court. Second, Hennepin and Ramsey counties utilize family court referees—similar to district court judges, but with jurisdiction limited to family law. And third, there are child support magistrates who hear only child support matters. Minn. Stat. §§ 484.64; 484.65; 484.702.

Obligor and Obligee
“Obligor” is the legal term for the person ordered to pay maintenance or support. “Obligee” is the person to whom maintenance or support is owed. Usually the obligee is the parent with whom the child lives and the obligor is the other parent. But sometimes parents have joint physical custody or equal parenting time, each parent has physical custody of one or more of the couple’s children, or the child is not in either parent’s custody. For accuracy and clarity, this information brief uses the terms obligor and obligee. Minn. Stat. § 518A.26, subds. 13 and 14.

When is child support ordered?
If a married couple with minor children is divorced or obtains a legal separation, a court must enter a support order against one or both parents. If a married couple with minor children lives apart, one parent or the public authority may go to court to seek a support order against the other parent. Minn. Stat. § 518A.38, subd. 1.
If a child is born to parents who are not married to each other, paternity must be established before a court will order child support. Paternity can be established by court order or by the parents voluntarily executing a document called the Recognition of Parentage. Minn. Stat. §§ 257.66 and 257.75. In most cases where paternity is uncontested, establishing paternity is relatively simple. However, if paternity is contested or involves multiple parties, establishing paternity can be complex. A court may order an alleged father to pay temporary child support if genetic tests indicate a likelihood of paternity of 92 percent or greater. Minn. Stat. § 257.62, subd. 5. If a child is in the custody of an entity or an individual other than a parent, either by court order or parental consent, a support order can be entered against the parents in favor of the individual
or entity who has custody. Minn. Stat. § 256.87, subd. 5.

When does the county become involved?
The county is not a party in all child support cases. Many child support obligations are set and paid without county involvement. There are two ways the county gets involved. First, an obligee who receives public assistance must assign to the county the right to receive child support. Public assistance recipients, as a condition of continued eligibility for public assistance, must cooperate in establishing paternity and enforcing child support. Recipients may be exempted from this requirement if they can show good cause, such as a likelihood of physical or emotional harm. Minn. Stat. § 256.741.
The second way the county gets involved is if the obligor or obligee applies for child support enforcement services. Any obligee or obligor who does not receive public assistance can obtain the county’s services in establishing parentage, locating parents, and establishing and enforcing child support orders by completing an application and paying the application fee.

What fees are charged for child support collection?
Each applicant pays a $25 application fee when requesting child support services from the county agency. If the applicant receives public assistance, the fee is not required. If the county provides full child support services to an obligee, the obligee will be charged a cost recovery fee of 2 percent of the amount of child support and spousal maintenance collected. If the county provides child support enforcement services to an obligor, the obligor will be charged a cost recovery fee of 2 percent of the monthly court-ordered child support and spousal maintenance obligation. This cost recovery fee does not apply to persons receiving public
assistance or who received some forms of public assistance within the 24 months prior to getting support enforcement services. Applicants for child support services who are receiving some forms of public assistance will not be charged a cost recovery fee for up to 24 months after leaving the assistance program. Minn. Stat. § 518A.51. If an applicant for full child support services does not wish to pay the 2 percent fee, that person may apply for income withholding-only services. Minn. Stat. § 518A.53, subd. 4.

If an obligee or obligor prefers to have only income withholding services, instead of full child support services, that person may apply for income withholding-only services. A monthly fee of $15 is charged to the obligor for this service. Minn. Stat.§ 518A.53, subd. 4. In addition, in cases where neither the obligee or obligor has ever received public assistance, the county must assess an annual $25 fee when at least $500 of support has been collected. Minn. Stat. § 518A.51.

What is IV-D?
Because the original federal legislation on child support added a “Title IV-D” to the Social Security Act, county child support offices, which are subsidized by the federal program, are sometimes called “IV-D agencies.” Child support enforcement services provided by IV-D agencies are often referred to as “IV-D services.” Cases in which the county is a party are called “IV-D cases.” IV-D cases are divided into public assistance cases (PA) and those where the obligor or obligee simply applies for support enforcement (NPA, or nonpublic assistance). IV-D cases include spousal maintenance if the child for whom child support is ordered is or was living with the obligee, and spousal maintenance-only cases when the only service needed is income withholding. A case that is for income withholding-only services is referred to as a “non-IV-D
case.” Minn. Stat. §§ 256.741; 256.87; 518A.26, subds. 10 and 21; and various other provisions of chapters 518 and 518A.

How is child support ordered?
As previously stated, child support is ordered by a district court judge, district court referee, or child support magistrate. Child support magistrates preside over IV-D cases only (again, cases where the county is involved because the obligee receives public assistance or the obligor or obligee asks the county for child support enforcement services). Non-IV-D cases or IV-D cases where additional contested issues are involved (such as custody or parenting time), are heard by a judge or referee in district court. Minn. Stat. §§ 484.702 and 518A.46. Child support cases heard by child support magistrates are governed by a set of rules aimed to
expedite and simplify the process. Accordingly, the procedures are called the “expedited process” or the “expedited child support hearing process.” The rules for the expedited process are promulgated by the Minnesota Supreme Court. Minn. Gen. R. Prac. 351 to 379.

Magistrates, judges, and referees all have the power to establish, modify, or enforce child support orders. In every case, the orders can be appealed to the Minnesota Court of Appeals. In cases heard by magistrates, orders can be appealed to district court or directly to the Minnesota Court of Appeals. In Hennepin County, referee orders and decrees can be appealed directly to the Minnesota Court of Appeals. Minn. Stat. § 484.65, subd. 9. For simplicity, this information brief uses the term “court” when referring to both the district court and the expedited process. A person seeking to obtain, modify, or enforce a child support order should contact his or her county child support office or a private attorney for direction on how to proceed.

Don't go it alone! Call Linnan and Associates at 651-312-1201 for a free consultation with an experienced and knowledgeable attorney who can make sure you are treated fairly.

Should I File an Individual or a Joint Bankruptcy?

2011-10-04T12:48:00.003-05:00

Money problems often accompany divorce. The question for most couples becomes, should you file bankruptcy first, or wait until the divorce is filed or concluded?

The answer is: it depends.

Married couples, even if they are not living together, can file for bankruptcy together. This often saves money, because only one fee is charged. After a divorce, the couple can no longer file bankruptcy together, and must each file a petition as single. Thus, you can save a filing fee if you file before the divorce.

But, there are a number of issues that can arise with regard to property and debt division in a divorce decree. Often in divorce decrees there is language that states that one spouse will hold the other spouse harmless for debts that are being divided in the divorce. In a chapter 7 bankruptcy, a debtor cannot discharge the "hold harmless" obligation to an ex-spouse established in a divorce or legal separation decree. However, the debtor can discharge any personal liability to any joint creditor. Think of the obligation to hold harmless and the personal liability on the debt as two distinct things. The obligation to hold harmless cannot be discharged in a chapter 7 bankruptcy, but the personal liability on the debt can be discharged in a chapter 7 bankruptcy.

A chapter 13 bankruptcy allows a debtor to discharge a hold harmless obligation created by a divorce decree, so this only applies when the debtor is already divorced. A chapter 13 allows the debtor to discharge both the hold harmless obligation and the personal liability on the debt.

If your marriage is breaking up, it might be nice to clean up your debts too and to get a true fresh start. Call Linnan and Associates for a FREE assessment: 651-312-1201

Bankruptcy Information

2011-08-24T15:00:00.001-05:00

Discharge of Debts

This is the final stage of bankruptcy where the bankruptcy is complete and all debts are discharged (forgiven).

Under Chapter 7, a debtor normally receives a discharge of all qualified debts a few months after the bankruptcy petition is filed – after the liquidation of assets, if there were any.
Under Chapter 13, the debtor receives a discharge of debts after his or her repayment plan has been completed.

Handling Assets and Debts

This stage of the bankruptcy process will differ based upon whether you are filing for Chapter 7 or Chapter 13 debt relief.

Liquidating Assets Under Chapter 7: In Chapter 7 bankruptcy, the debtor is required to turn over to the trustee all assets identified as “non-exempt”. Bankruptcy law allows for non-exempt assets to be sold (after an appraisal) and the proceeds of that sale to be given to creditors according to priorities set by bankruptcy law. If there are no non-exempt assets (and there often are not), creditors will receive nothing. If a debtor in Chapter 7 wants to retain secured property (keep some property for which he or she has a loan), the debtor can sign a written “reaffirmation agreement” agreeing to repay the debt. Another option to retain non-exempt property is to redeem it for the fair market value.
Discharge of Debt Under Chapter 13: Under Chapter 13 debtors retain their property and make payments to the bankruptcy trustee, who will make payments to creditors. The debtor is protected from lawsuits, garnishments, and other creditor actions while the Chapter 13 repayment plan is in place.

Meeting of Creditors

A person filing for bankruptcy should expect to attend at least one bankruptcy hearing. This hearing is referred to as the “meeting of creditors” and is held approximately 30 days after the bankruptcy petition is filed with the court.
At that meeting of creditors, your creditors will have an opportunity to question the details of financial documents, debts and assets. They may ask the court to deny the bankruptcy petition. They will certainly seek to have their debt paid as fully and favorably as possible.
In the case of Chapter 13, a confirmation hearing will be held in which the court approves or disapproves the debtor’s proposed repayment plan. This hearing takes place before the bankruptcy judge.

Role of the Trustee

While a bankruptcy judge may decide issues such as eligibility to file, the duties (rights) of the debtor, and whether a debtor should receive a discharge of debts, in most cases people will have limited contact with the bankruptcy judge.

In Chapter 7, you will not see a judge unless the bankruptcy is contested by your creditors
In Chapter 13, you will appear before the bankruptcy judge at a plan confirmation hearing

After the bankruptcy petition is filed, the court will appoint a trustee who will oversee the case, ensuring that the bankruptcy plan is followed and creditors are paid. It is very important to be cooperative in all matters related to the bankruptcy, especially when dealings with the trustee.

Order of Relief

When your bankruptcy petition is filed it will initiate an order for relief, which includes an “automatic stay.” An automatic stay prevents your creditors from taking any further collection actions against you. While the stay is in place, creditors must stop harassing phone calls, stop any legal proceedings to repossess your car or other property, stop any foreclosure proceedings, and stop wage garnishment.
The automatic stay is not permanent, and it does not prevent every debt collection action against you in every situation. Talk with your bankruptcy lawyer about your specific situation.

Filing for Bankruptcy

The first step in the bankruptcy process is preparing and filing a bankruptcy petition with the clerk of the U.S. Bankruptcy Court. In the petition, you are asking for protection under Chapter 7 or Chapter 13 of the U.S. Bankruptcy Code. Along with the bankruptcy petition, you must include all required schedules and statements and pay the filing fee. These statements provide information about:

Your debts (liabilities), such as mortgages and car loans, credit card debt, medical bills, student loans, tax debts, personal loans, retirement fund loans, loans against life insurance policies, etc.
Monthly living expenses, including alimony and child support payments
Assets and income from every source

Credit Counseling

Under the 2005 bankruptcy law, there are two credit counseling steps for a debtor to fulfill before they can file for bankruptcy: a) an “individual or group briefing” from a nonprofit budget and credit counseling agency, and b) an instructional course in personal financial management.

Minnesota Bankruptcy Exemptions

The Minnesota bankruptcy exemptions chart details the property you can exempt or protect from creditors. You may exempt any property that falls into one of the exemptions categories below, up to the dollar amount listed. You will be able to kept this exempted property after you file bankruptcy. Please note that there are certain debts which you will not be able to erase in bankruptcy.
In Minnesota, you also have the choice of using the federal exemption statutes instead of your Minnesota exemptions.

An exemption limit applies to any equity you have in the property. Equity is the difference between the value of the property and what is owed on the property. For example, a car valued at $5000 with a loan of $4500 has an equity value of only $500.

If the property is secured by a loan, such as a car or home, and you are current on the payments, the equity is covered by your exemptions, and you elect to keep making payments on the loan you generally can keep this property through the bankruptcy. If all the equity is not covered by your exemptions the trustee may elect to liquidate this asset and distribute the assets. Generally, in this case, you would be entitled to the value of your exemption in the asset as a cash payment.

Bankruptcy law allows married couples filing jointly to each claim a full set of exemptions, unless otherwise noted.

To keep non-exempt property, a debtor must generally pay the trustee the value of the non-exempt property.

You also may use certain federal exemptions in addition to your Minnesota exemptions.

Criminal Law Freqently Asked Questions

2011-08-24T14:50:00.002-05:00

From DUI’s to felony charges, Linnan and Associates will represent you with passion and expertise. We strive to provide exceptional advocacy for a price that won’t break the bank. Call today for a free consultation.

Frequently Asked Questions

A Petty Misdemeanor is a non-criminal offense punishable by a maximum $300 fine. You
cannot go to jail for a petty misdemeanor.

A Misdemeanor is punishable by up to 90 days in jail, and/or a $1000 fine.

A Gross Misdemeanor is punishable by up to one year in jail and/or a $3000 fine.

A Felony is punishable by over one year in prison and/or more than a $3000 fine.

Linnan & Associates attorneys are experienced in defending people charged with all levels of offenses.

I have been charged with a crime. What are my rights?
You have an absolute right to have an attorney represent you.

You do not have to talk to police about the crime you have been charged with. If you choose to talk to police you have a right to have an attorney with you when you do so.
Linnan & Associates attorneys can assist you in making that decision.

You have a right to a trial by either a judge or a jury depending on the charges.

At the trial, the State would have to prove your guilt beyond a reasonable doubt. If you choose to have a jury trial, all members of the jury would have to agree that you are guilty.

The State must bring their witnesses against you into court and you have a right to question those witnesses.
You have the right to subpoena witnesses to come into court and testify on your behalf.

You have the right to either testify at your trial or remain silent. If you choose to remain silent, neither the prosecuting attorney nor the judge may comment to the jury on your decision.

You have a right to a pre-trial hearing where you can contest the evidence that the State wants to use against you at the trial.

These are very important decisions that the attorneys at Linnan & Associates can assist you with.

What will happen if I am convicted?If you are convicted of a crime the court will impose a sentence that may include any of the following:

Jail or prison time
Fines
Community Service
Electronic Home Monitoring
Probation conditions, such as:
- No-contact orders
- Education requirements (Anger Management, DWI Education, Victim Impact Panel Attendance, etc.)
- Abstinence from chemical use (alcohol and drugs)

In addition to jail time and fines, there are other possible consequences (collateral consequences) if you plead guilty or are found guilty at a trial.

Traffic offenses and DWI offenses may result in your driver’s license being suspended or revoked.
If you are convicted of a felony, you will not be allowed to possess a firearm under state and federal law.

Conviction of certain offenses can require you to register with the State as a predatory offender.
Conviction of certain offenses may result in suspension or revocation of certain professional licenses.

If your decision is ultimately to plead guilty, Linnan & Associates attorneys can negotiate the best possible outcome for you and can help you understand or avoid the collateral consequences of a conviction.

What can a criminal defense attorney do for me?
The legal system is complicated and confusing. A criminal defense attorney, such as the attorneys at Linnan & Associates can:

Represent you while your case is being investigated and try to prevent criminal charges
Challenge evidence against you and make sure illegally obtained evidence or inadmissible evidence is not used at your trial.
Determine whether you have any legal defenses to the crime you have been charged with that could result in the charges being dismissed or an acquittal at trial.
Negotiate with the prosecutor to get you the best outcome possible if you decide to plead guilty to the charges.

What type of crime have I been charged with?

There are four different levels of offenses in Minnesota: the Petty Misdemeanor, Misdemeanor, Gross Misdemeanor, and Felony. They are defined by the possible sentence you could receive if you were convicted of the offense.

DWI and DUI Terms and Definitions

2011-08-24T14:42:00.000-05:00

DUI-DWI Terms & Definitions

Absorption Rate: The rate at which consumed alcohol finds its way into the blood stream. While alcohol sits in the stomach, its absorption is delayed. Absorption rate will be affected by how much was eaten, individual biologic differences, and what type of beverage was consumed. When drinking continues over a course of hours, both absorption and “burnoff” (metabolizing of alcohol) will be happening simultaneously.

Administrative License Suspension: A law that allows the prompt suspension of the license of drivers charged with Driving While Intoxicated (DWI) when a driver has a BAC above the prescribed limit, or sometimes if a driver refuses to take a roadside blood or breath test. Thus the license may be suspended before adjudication of the DWI charge.

BAC: Short for “blood alcohol concentration.” BAC refers to the amount of alcohol in your bloodstream and is measured in percentages. BAC can be measured either by breath, blood or urine testing and is often used by law enforcement to determine whether or not a motorist is “legally drunk.” All 50 states have adopted BAC laws that make it illegal to drive with a BAC at or above a set amount. As of May of 2007, all 50 states have adopted 0.08% as the BAC limit.

Blood Test: A laboratory test that directly measures the percentage of alcohol content of the blood drawn from a DWI suspect.

Breath Test: A test of blood alcohol level that is derived from measuring the alcohol level of the suspect’s breath. It depends for its accuracy on the machine’s receiving air from deep in the lungs, and a mathematical formula is used to extrapolate the blood alcohol level from the lung-air alcohol level.

Breathalyzer: A portable machine used by law enforcement to measure the BAC of suspected drunk drivers.

Burnoff Rate: The rate at which alcohol in the body is metabolized. During burnoff, the blood alcohol level drops, giving rise to the “falling curve” term to describe the graph of the decrease in BA.

Chemical Test: As it relates to DUI, a test of the alcohol or drug concentration in a person’s blood. A Breathalyzer, blood analysis, or urinalysis can be used as chemical tests for alcohol. If other drugs are suspected, a blood test or urine test is used.

Commercial Vehicle: A vehicle driven for business purposes. In the DUI context, these are the consequences for driving a commercial vehicle while drunk.

Community Service: Depending on the offense, your state may offer community service as a way to work off fines or jail time, which means you are living at home and reporting during the day to pick up trash, sweep public buildings, assist community charitable or public oriented organizations, or perform other services to the community. Community service may also be a mandatory part of your sentencing.

Conditional License: A conditional license is a license granted “on condition” of something, such as completing a DUI course or alcohol treatment program. Once that “condition” has been met, a standard license is generally issued or reinstated.

Diversion: A court program that can suspend the prosecution of a criminal DWI charge in exchange for performing certain tasks, such as attending a drinking driver program. At the end of the period of successful diversion the charges are dismissed. This is less frequently used in DWI cases these days, but still exists in some states.

Driver Responsibility Tax: Some states charge those convicted of a DUI with an extra tax on top of fines and court costs. This usually consists of a tax that is payable to the state for three years after the incident occurred (e.g.: $250 per year for three years). In most cases, failure to pay the yearly assessment on time results in license suspension.

DUI School: DUI schools are typically drug and alcohol education programs designed to help you realize how dangerous drinking and driving is and to hopefully ensure you are not a repeat offender. Your state will likely have a list of approved schools for you to choose from.

DUI: Driving While Under the Influence. Just a different way of stating DWI.

DWI: Driving While Intoxicated. Just a different way of stating DUI.

Felony: A serious crime, such as murder, rape or burglary, for which there is a stricter sentence given than for a misdemeanor. Felonies are usually categorized by degrees. 1st degree felonies are the most serious class (with the highest fines and penalties), 2nd degree felonies are less serious, and so on. Many states treat DUIs that cause serious bodily injury as a 3rd degree felony. If there has been a death as a result of the DUI, it might be classified as a 1st or 2nd degree felony, depending upon the prosecutor and the situation. Some states elevate DWI to felony status even without an injury or death, if the suspect has a given number of prior DWI convictions. A felony can result in a sentence to state prison instead of county jail.

FST: Field Sobriety Test. A series of physical and mental coordination tests designed to help an officer decide if a driver is DWI. These may include walking the straight line, reciting the alphabet, standing still with feet together and arms extended, standing on one foot, etc. These are highly subjective, but if the officer concludes the driver was DWI, he will require a BA test. States seldom have statutes that penalize refusing to perform FST’s, but most will penalize refusal to take a Blood Alcohol Test with license suspension or other penalties.

High BAC: Threshold blood alcohol content for which maximum penalties and fines may apply, even on a first offense.

Ignition Interlock Device: An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit of .02 (i.e., 20 mg of alcohol per 100 ml of blood). The device is located inside the vehicle, near the driver’s seat, and is connected to the engine’s ignition system. Many states require that the device be used by those convicted of DUI.

Implied Consent Laws: Some states have implied consent laws. If you have a driver’s license in one of these states, you have, by implication, consented to have your blood alcohol concentration measured. In many states, you may refuse to take the test, but fines and license suspensions may be the result. In some states, an officer may not pull over drivers randomly to test them, but must have “probable cause” to believe the driver is DWI before pulling them over (such as observing “weaving”).

Intoxilyzer: A brand name for a blood alcohol breath testing machine.
License Revocation: A license revocation means your driving privileges have been cancelled. You will likely need to reapply for a driver’s license after a designated length of time.

License Suspension: A license suspension means you may not drive for the period of your suspension. Driving privileges are typically administered by a state agency other than the court system. It could be the Secretary of State, the Department of Motor Vehicles or another agency. If your license is suspended, the suspension will likely take effect immediately upon arrest, and not upon conviction. Check your state’s laws. You, or your lawyer on your behalf, may be able to negotiate a limited suspension, meaning you may drive to and from work, but nowhere else.

Miranda Rights: The formal advisement that you have the right to remain silent and to have a lawyer present before answering questions, which police must recite prior to questioning someone who is in custody. Seldom relevant to DWI cases, because the police never arrest anyone until after questioning (Have you been drinking?), after the FSTs, and maybe even after the Blood Alcohol Testing. Of course, one does have the right not to answer questions like that one, or “How much have you had to drink? When?”, but no officer will advise you of that.

Misdemeanor: A crime less serious than a felony. Misdemeanors are sometimes categorized by degrees. 1st degree misdemeanors are the most serious class (with the highest fines and penalties), 2nd degree misdemeanors are less serious, and so on. Many states treat a first DUI conviction as a misdemeanor.
Open Container Laws: In some states, it is illegal to have an open container of alcohol in your vehicle. Many states have laws that make it illegal for drivers and passengers to have open containers in the vehicle.

Probation: When all or part of the required jail time is suspended in exchange for good behavior, as determined by checking in with a probation officer. Jail time may be reinstated if it is found the terms of probation are being violated. Some grants of probation are unsupervised, but a violation may be found after a new arrest.

Provisional (or Restricted) License: AA provisional license typically withholds certain license privileges. In a DUI context, a provisional license might be granted to someone to drive to and from work only, or to and from the court ordered drinking driver program.

Regurgitation: Ejecting some stomach contents up into the throat or mouth. With alcohol in the stomach, this can fool a Breathalyzer into thinking that the blood alcohol level is much higher than it is. Officers administering a breath test are supposed to watch the suspect to see he does not burp or regurgitate prior to the test. A cloud of alcohol burped up into the mouth will invalidate the breath test results.

Rising Curve Defense: A defense to DWI based upon the claim that the driver was not under the influence and did not have .08% blood alcohol when he or she was driving, but that it rose to that level after arrest due to the fact that alcohol was still being absorbed. Consequently, a long delay between being pulled over and having a BA test helps the suspect in many cases.

Sobriety Checkpoints: A system where law enforcement agencies select a particular location for a particular time period and systematically stop vehicles (for example, every third car) to investigate drivers for possible DWI. If any evidence of intoxication is noted, a detailed investigation ensues.

Urine Test: A laboratory chemical test of the suspect’s urine to determine the suspect’s blood alcohol level. Can be inaccurate because of the mixing of higher alcohol level urine from earlier with lower alcohol level urine closer to the driver’s being pulled over. Can give an artificially high reading for that reason.

Vehicle Impound/Immobilization: Vehicle impound is an option used by some states when there has been more than one DUI conviction. The vehicle may be seized, or an ignition interlock device may be installed on the steering wheel of the car, requiring the driver to pass a breath test using the device before he or she can start the vehicle and drive away.

Zero Tolerance BAC: Allowable blood alcohol content for minors (as defined by the state). This percentage can be as low as 0% (meaning no alcohol content may be detected-hence the term “zero tolerance.”) or as high as 0.02%.

Hennepin County Family Court: Initial Case Management and Early Neutral Evaluation

2011-08-24T12:15:00.000-05:00

Hennepin County Family Court: Initial Case Management Conference and Early Neutral Evaluation

Parties to Hennepin County divorce and custody proceedings have to appear before the judge assigned to their case as early as three to four weeks after the filing of the initial papers.
The first appearance in Hennepin County Family Court is called an Initial Case Management Conference (ICMC). Below is an article written by the Honorable Lucy Wieland, Chief Judge of the Fourth Judicial District:

Reducing the Pain of Divorce
Lucy Wieland, Chief Judge of Fourth Judicial District – February 13, 2007

Divorce is never easy. The pain and loss to family members are immeasurable Over the last three years, the HENNEPIN COUNTY FAMILY COURT has focused on reducing the trauma of divorce by undergoing a quiet but dramatic transformation in how divorces are handled. Today, families can go through Family Court quickly, economically, and with less acrimony by agreeing to use up to three innovative programs and by negotiating in good faith.

It starts with the Initial Case Management Conference (ICMC), which occurs about three weeks after the parties’ DISSOLUTION or PATERNITY case has been filed. Here, the parties and their attorneys meet with their assigned judge in an informal setting, everyone speaks freely and an attempt is made to resolve as many issues as possible. To help resolve any remaining issues, the parties may select from a menu of specifically designed settlement programs.

If the parties need help resolving financial issues, such as spousal maintenance or dividing marital assets, they can choose the FINANCIAL ISSUE EARLY NEUTRAL EVALUATION (FENE) PROGRAM. A neutral expert compiles all the necessary financial information, listens carefully to the parties’ respective positions, studies the material, offers candid assessments regarding the strengths and weaknesses of each issue and helps the parties negotiate a resolution. The expert’s fees are determined on a sliding scale basis at a fraction of the normal rate. To date, 70 percent of the cases have settled entirely, averaging 59 days to resolution, and costing less than $1,000 for neutral expert fees. While the parties may incur additional charges for their lawyers, overall they end up paying a fraction of the costs associated with traditional divorce litigation and the whole process is completed in less than three months.

Hennepin County also offers a SOCIAL ISSUE EARLY NEUTRAL EVALUATION (SENE) designed to resolve custody and parenting time issues. Because it is extremely important to keep children out of the middle of messy divorce proceedings, the SENE is designed to happen even faster than the FENE. Parents selecting the SENE process are matched with two custody experts, always one male and one female, who meet with the parties, listen carefully to their respective positions, gather any necessary additional information, consult with each other to determine whether they view the issues the same way, and then provide the parties with their candid assessments and negotiate a settlement, all within thirty days after the initial case management conference. So far, 60-65 percent of all SENE referrals result in total settlements, while another 20 percent result in partial settlements.

Families opting for the SENE program often save a college education worth of costs and expenses, minimize emotional harm to their children, and discover that they can co-parent in a civilized, respectful way despite their divorce Even when the entire case does not settle, partial settlements result in far less expensive proceedings, with less potential harm to the children.

Occasionally, parents return to court because one wants to modify the existing custody arrangements. The Ready Response Program directs the parents and child to a custody evaluator serving as the Ready Response officer of the day. The Ready Response officer meets with the parents and child on an emergency basis and reports back to the court and the parents on the same day.

For example, a mature teenage girl may be telling her mother that she wants to move in with her; and telling her father that she wants to remain living with him. Both parents come to court believing that they are following the child’s wishes. Rather than go through long drawn out litigation to determine the child’s true preference, the Ready Response Program may be utilized. The Ready Response officers are skilled interviewers and can help determine what the child really wants. It is often much easier for a child to be candid in a setting that does not require the child to say something in the presence of a parent that might hurt that parent’s feelings. On many occasions the Ready Response interview provides enough valuable information that the parents are able to negotiate a resolution and avoid a protracted court battle.

The Impact of Domestic Violence on Your Divorce and Child Custody Cases

2011-08-24T12:14:00.000-05:00

The Impact of Domestic Violence on Your Divorce and Child Custody Cases

Domestic violence is a serious issue in divorce and custody cases, not only in terms of the civil and criminal effect, but the direct impact it will have on your chances for custody. To put it simply, a finding of domestic violence (an Order for Protection in civil court or a criminal conviction of domestic violence) can ruin a party’s chance for custody.

Do not put yourself in a situation where it is likely an argument with your spouse will ensue. A finding of domestic abuse by one spouse against the other makes any custody battle very difficult since there is a presumption under Minnesota law that an abuser should not have custody. The specific language of the statute states: (d) whether domestic abuse, as defined in section 518B.01, has occurred between the parents. The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents. (Go to Minn. Statute § 518.17 for the full text of the statute.) Copyright © 2007 by the Office of the Revisor of Statutes, State of Minnesota. All rights reserved.
Do not yell, grab, hit, or throw anything in the presence of your spouse or, even more significantly, in the presence of the children. If your spouse tries to incite you, walk away. Something as simple as blocking someone’s exit from a room may be considered abusive.
If you are being abused or are in fear for your safety or for the safety of your children, call 911 right away.
If you are accused of being physically abusive, do not make any statements – to anyone! Call an attorney right away. Remember, statements you make to the police (and to others) can be used against you in a later proceeding. Assert your right to remain silent.

In civil court, a finding of domestic abuse will result in the issuance of an Order for Protection. An Order for Protection is a civil order (not a criminal conviction) directing the abusing party (Respondent) to, among other things, stay away from the abused (Petitioner) party’s residence or employment. When there are children involved, a temporary custody award will be made. An Order for Protection is usually put into effect for one (1) year, and may be extended beyond one year for good cause. Below are some excerpts from an actual order:

NOTICE ABOUT ARREST AND JAIL: A violation of this Order may be a misdemeanor, gross misdemeanor, or felony. A misdemeanor violation may result in up to 90 days in jail, or $1,000.00 fine, or both. A repeat violation may be a gross misdemeanor, and may result in up to one year in jail, or $3,000.00 fine, or both. A police office must arrest and take into custody a person whom the officer believes has violated this Order.
NOTICE ABOUT DEPORTATION AND ENFORCEMENT: A violation of this Order for Protection is a deportable offense. If you are not a United States citizen, a violation of this Order could result in your deportation. This Order for Protection is enforceable in all 50 states, the District of Columbia, tribal lands, and the United States territories. Violation of this Order for Protection may subject the Respondent to federal charges and punishment.
NOTICE ABOUT FIREARMS: The Respondent must not possess, ship, transport, or receive any firearm or ammunition while this Order is in effect.
NOTICE ABOUT OTHER CASES: Both parties are notified that in any other case involving parenting time (visitation), the Court will consider this Order for Protection if the Petitioner so requests.

If you and your spouse/partner are still living in the same house, be sure to discuss with your attorney early on any concerns you may have about your spouse’s temper or abusive tendencies. Do you believe your spouse is violent or could be violent? Do you believe your spouse would lie about what happened during an argument? Do you believe he or she would say you hit, grabbed or pushed him or her? If you answered YES to any of the above, you should call your attorney immediately. Disputes “behind closed doors” are very difficult to defend, and not all domestic disputes involve the police or any written report for that matter. Sometimes I advise parties to physically separate themselves early on in the proceedings to eliminate even the chance of a spouse making a claim of domestic abuse.

Will I Have To Pay My Spouse's Attorney Fees?

2011-08-24T12:13:00.001-05:00

Will I Have To Pay My Spouse’s Attorney Fees?

A very serious question — as the divorce process can take a significant financial toll on you and your spouse. Unless you are representing yourself, you and your spouse will likely be paying an attorney for representation. I am often asked the question: Will I have to pay for my spouse’s attorney? There is no easy or simple answer. The answer will depend on the specifics of each case.
Attorney’s fees in divorce proceedings can be awarded in two situations:

First, attorney fees can be awarded when there is financial need on the part of one spouse and there is an ability to pay on the part of the other spouse. Need-based attorney’s fees, as they are called, are often awarded when there is a significant income disparity between the parties. A request can be made early on in the proceedings or at the very end. The court must make particular findings on the issue of need before attorney fees can be awarded.
Conduct-based attorney fees can also be awarded by the court in those situations where the court finds that the conduct of one party has needlessly increased the length or cost of the proceedings. These fees are awarded as a “punishment” for one party’s unreasonable conduct. Again, the court must make specific findings regarding the conduct of the other party before attorney fees can be awarded.

See below for the full text of the attorney’s fees statute in Minnesota.

518.14 COSTS AND DISBURSEMENTS; ATTORNEY FEES; COLLECTION COSTS.
Subdivision 1. General. Except as provided in section 518A.735, in a proceeding under this chapter or chapter 518A, the court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and (3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Nothing in this section or section 518A.735 precludes the court from awarding, in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding. Fees, costs, and disbursements provided for in this section and section 518A.735 may be awarded at any point in the proceeding, including a modification proceeding under sections 518.18 and 518A.39. The court may adjudge costs and disbursements against either party. The court may authorize the collection of money awarded by execution, or out of property sequestered, or in any other manner within the power of the court. An award of attorney’s fees made by the court during the pendency of the proceeding or in the final judgment survives the proceeding and if not paid by the party directed to pay the same may be enforced as above provided or by a separate civil action brought in the attorney’s own name. If the proceeding is dismissed or abandoned prior to determination and award of attorney’s fees, the court may nevertheless award attorney’s fees upon the attorney’s motion. The award shall also survive the proceeding and may be enforced in the same manner as last above provided. Copyright © 2007 by the Office of the Revisor of Statutes, State of Minnesota. All rights reserved.

Uncontested Divorce in Minnesota

2011-08-24T12:12:00.001-05:00

Uncontested Divorce in Minnesota

If you and your spouse agree to the terms of your divorce, the divorce process can be quite simple and quick. Here are some points to consider if your divorce proceeding is uncontested.

Time frame can be significantly shortened. An uncontested divorce can be finalized in a month or so, depending on your county and court scheduling.
Costs can be minimized. Depending on the issues, attorneys’ fees can be minimized, as much of the work would be dedicated to drafting legal documents. The current filing fee is approximately $330.00. This varies by county, but generally is in this range, give or take a few dollars.

Divorce Paperwork

2011-08-24T12:10:00.000-05:00

Divorce Paperwork

There is often a tremendous amount of paperwork involved in getting divorced, and there are rules and deadlines to follow in preparing the papers. The attorneys at Linnan and Associates have drafted and filed these documents countless times. Our attorneys can walk you through the steps and make sure things are done correctly and on time. Documents often seen in a divorce case are:

1) Summons and Petition
In Minnesota, one spouse must start the divorce by writing a Summons and Petition and “serving” it on the other spouse.

2) Answer
The spouse who received the Summons and Petition must read the documents and decide how to respond. If that spouse disagrees, they write and serve an Answer. If the couple can reach an agreement, a Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree is prepared by one or both of the parties.

3) Motions and Court Orders
A Motion is a paper asking the Judge or Referee to decide an issue in a case. In a divorce matter, a Motion for Temporary Relief allows you to ask the court to issue a temporary order for certain issues usually involving child custody, support or visitation. The temporary order will expire when the final divorce decree is signed by the Judge and “entered” by court administration.

4) Final Divorce Document
The official name of your divorce document is Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree. Once this document has been signed by a Judge and is “entered” by court administration, your divorce is considered final.

Don't go through the process alone. Call Linnan & Associates at (651) 312-1201 to set up a FREE consultation with one of our experienced divorce attorneys.

Linnan & Associates can help you through your family law case

2011-08-24T12:05:00.000-05:00

Family Law deals with the tough stuff. You take care of your family, let Linnan & Associates take care of the legal details. We passionately represent our family law clients who need competent advice regarding divorce, child custody, child and spousal support, and adoption.

Sean Linnan and the staff at Linnan and Associates have handled hundreds of family law cases in Minnesota and would love to help you through yours.

Being involved in a family law case is a trying time for everyone. Having a staff of attorneys and paralegals who can guide you through the process will make the transition easier on you and your family.

Welcome to the Linnan & Associates Minnesota Divorce Blog!

2011-08-24T09:31:00.000-05:00

Welcome to our new and improved blog site! We have revamped our website and have added this blog to keep you in the know about Minnesota law related not only to family law matters, but also to bankruptcy and criminal law. Take a look around our site. If you don't find the answer to your question, feel free to call the firm at 651-312-1201 or check out our firm website at http://www.linnanlaw.com/. We're available to talk to you and let you know if your situation needs an experienced attorney.