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Whether the topic is philosophical or a "thought of the day" on a particular legal issue, we'll explore our views here!!

By the folks at Betters Weinandt, Dec 1 2014 06:23PM

Marital Property:


In Minnesota, the general rule is if you are married and there is property in either spouse's name, than that property is "Marital." Once property is designated as "marital," then that property is presumed to be equal property of both spouses, even if it would appear to belong to only one spouse, such as when a car is titled in the name of only one spouse. From there, the general rule in Minnesota indicates that the marital property will be distributed "equitably" between the spouses, which often (but not necessarily) results in a "50/50" split of the marital property.


Non Marital Property:


Although the general rule in Minnesota is that all property owned by either spouse in a marriage is "marital," there are exceptions. The most common exceptions are: 1) when property was owned before the marriage; 2) when the property was "gifted" specifically to one spouse (even during the marriage); and 3) when property was inherited by just one spouse (even during the marriage). Once property is determined to be "non marital," it is generally awarded solely to the spouse claiming the property to be non marital. In order to successfully claim that property is "non marital," the spouse making such claim has the burden to "prove" the non marital nature of the property. In other words, property is "presumed" marital unless one party can actually prove otherwise. For this reason, it is important that you maintain documentation of property owned before the marriage, or received during the marriage by gift or by inheritance. Without the necessary documentation, a legitimate claim of property being "non marital" may be lost for the inability to prove such property is indeed non marital.


Protecting Non-Marital Property:


One method to reduce property arguments in any future divorce is by entering a contract before getting married that is referred to as a "antenuptial agreement" (often informally referred to as a "pre-nup"). Antenuptial agreements are an extremely important tool to help protect property that is non marital from later being subject to a claim that the property should be considered "marital" when the spouses go through a divorce. These agreements are governed by statute and must be carefully drafted in order to be actually enforceable. Among other things, the agreement: 1) must be in writing; 2) must be based upon a full disclosure of each party's financial circumstances; and 3) must only be entered into after each party has had the opportunity to consult with legal counsel of their own choosing (the same attorney cannot advise both parties). These agreements can be complicated and anyone desiring to learn more about an Antenuptial Agreement must do so far in advance of a "wedding day."


Obtaining Retirement Funds Awarded in a Divorce:


Once divorced, it is quite common for one party to be awarded a portion of the other party's retirement funds. This is often a very technical process that may require a separate court order referred to as a Domestic Relations Order. It is not uncommon for family law attorneys to include in a retainer agreement that all drafting and handling of any needed Domestic Relations Order must be done through a separate third party. Whatever the case may be, it is important to note that your right to get funds from the other party's retirement account may not be complete until you have not only secured a Domestic Relations Order, but also had that Domestic Relations Order properly served upon the plan administrator for the applicable retirement account. There are legendary examples of one party being awarded large sums from the other party's retirement, only to lose out on those funds due to a failure to properly and timely obtain and serve a Domestic Relations Order.


Peace!

By the folks at Betters Weinandt, Nov 24 2014 03:34PM

An attorney walks into a bar... Sounds like a joke! Yes, we attorneys are used to being the subject of countless puns - some more tasteful than others to be sure. And while it behooves us to not take ourselves too seriously, there are some relatively personal concepts about being an attorney that you might even find interesting - or perhaps you could care less. Here are 3 things that you might want to know about us.


1) THAT BOTTLE OF BOOZE IN THE CABINET ISN'T JUST IN THE MOVIES.


So... an attorney walks into a bar and says, "give me the usual." Seriously, that's no joke. Alcoholism runs so rampant in the field of law that nearly all state bar associations, as well as the American Bar Association, have special referral programs to which an attorney can "self refer" or refer a fellow attorney for assistance with alcohol abuse, among other things. The occurrence of depression among attorneys also far outweighs the general population. The question is, "why?" When speaking with non-attorney folks, I often get the impression that the general belief is that alcoholism in attorneys can be explained by the fact that we are mean, worthless people who deep down know how bad we are, therefore we escape this reality by drinking. As you might expect, I've got a different explanation, but that will be described below in Number 3.


2) DEBT, DEBT, DEBT.


Most attorneys quickly find out two things upon graduating law school: 1) There's no high paying job waiting for them; and 2) it is often difficult to make enough money to pay law school debts (as well as undergraduate school debts) on the money they make after graduating law school.


In fact, it is quite common to graduate law school and indeed never practice law because a job that pays enough to cover student loans simply never becomes available. Most law school graduates find that their first job pays somewhere between $30K - $40K, while they have between $60K - $100K in student loan debt. While having a job at all is a blessing, this compensation is too often a rude awakening for the law school student who thought they would graduate and automatically need a personalized golf cart, or AT LEAST have access to a caddy (see Judge Elihu Smails from the movie "Caddyshack").


3) THOSE "DISCLAIMERS" AREN'T BECAUSE WE WON'T COMMIT.


Generally speaking, we attorneys avoid language that creates an absolute black or white result. We usually avoid words like "never" and "always." When an attorney is constantly inserting the words "generally," "commonly," or "usually," into his or her language, I call this "disclaiming language." I often hear non-attorneys tease that this "disclaiming language" indicates that attorneys are just "slippery snakes" - never quite willing to commit. Here's the truth: Most attorneys are fully willing to commit to their views - but it just so happens to be that our views generally consist of massive amounts of gray. In other words, we truly see the world as rarely, if ever, having absolutes. Therefore, our "disclaiming language" IS our commitment to the fact that what a non-attorney may see as an "absolute" is not at all so certain to an attorney.


Your truth may not be my truth. Eye witnesses are horribly unreliable (although heavily influential). A false statement isn't necessarily a lie. Killing isn't necessarily murder. Good people do bad things, but BAD people do GOOD things, too. The media is not a source of fact - rather it is a source of entertainment and marketing for various advertisers. And so on and so forth...


All of these concepts collide everyday in the life an attorney. The result is that the mental stability that many people possess based upon the security of "KNOWING wrong from right" is usually viewed by attorneys as being a false sense of security because we believe the world simply doesn't have such absolutes (or at least not to the extent you would suspect from reading many Facebook posts). THIS is the root of much of the depression and alcoholism in attorneys. After all, if all your non-attorney friends CLEARLY KNOW the "answer," while you find yourself wondering what the "question" is, life can become alienating and depressing rather quickly.


Alright - that concludes the "human" part of being an attorney. Commence the puns. Peace!

By the folks at Betters Weinandt, Nov 20 2014 04:36AM

Here in the United States of America, fewer topics are more commonly debated than the constitutional rights enjoyed in our country. If you partake in the ritual of Facebook, than you know that having just a few "friends" can quickly gum up your newsfeed with articles and posts about various rights and theories about how the government should tighten or loosen restrictions on such rights.


What constitutional right to you lean upon? Are you adamant that when the Founding Fathers wrote about the necessity of a well regulated milita within the 2nd Amendment that they wanted you to have unfettered access to your own personal FN SCAR-H Mk. 17 automatic rifle, chambered for full-power 7.62x51 NATO ammunition? Or if you have ever felt coerced by law enforcement, than you no doubt cherish your 5th Amendment right to remain silent. Or better yet, you value your ability to declare your 6th Amendment right to an attorney only to watch law enforcement officers suddenly stop and leave you alone.


Go ahead. Get on your consitiutional high horse and boldly proclaim the right that you most cherish (after all, you have the 1st Amendment right to free speech!). But while you proclaim your favorite right, remember that if you hold tightly to any one of your constitutional rights, than you must come to terms with the fact that you cannot pick and choose the rights that apply. It is at that time that you must give somber deliberation to the recent determinations that the constitutional rights of 700+ Minnesotan civilians (not "inmates") have systematically and continuously been ignored and violated. 700+ sex offenders, that is. Honestly, does it immediately alter the degree to which you hold constitutional rights to be sacred when the phrase "sex offender" is added to the debate?


Know this: a panel of four federally court-appointed experts filed a 108-page report on November 17, 2014, in which they unanimously (yes - unanimously - rare for four experts on the same case) joined in describing the illegality of how sex offenders are locked up "civilly" in Minnesota (thus not having the due process rights associated with a "criminal" case). In the lengthy report, one notable statement was that, "[t]he panel recommends recognition that the [sex offender program] includes many clients who may no longer or never did clinically or legally meet the criteria for civil commitment." Also keep in mind - these court-appointed experts were not attorneys applying an uber-technical legal analysis. These were four psychologists with expertise in the field of sex offenses, including the trauma inflicted by sex offenders.


So, enjoy your constitutional rights as you claim to be someone who respects and holds dear our constitutional rights. But if your reverence of the Constitution is altered when applied to the least respected individuals in our society, take a moment to consider the complexity of respecting our constitutional rights, as compared to respecting your constitutional rights.


Here's to the glorious challenges of living free. Peace.

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