Military Service Members Relief ActMembers of the United States military bravely defend our country domestically and internationally.

They face challenges those of us in the private sector do not have to consider. Recognizing these sacrifices, Congress passed several statutes to provide relief to those who serve in the United States military. The goal of this article is to briefly outline one particular statute relevant to service members. For further discussion, contact a knowledgeable Minnesota attorney for further guidance on these complex laws.

Minnesota Military Service Members Relief Act

Following World War II, Congress passed the Soilders and Sailors Civil Relief Act and subsequently modified the Act in 2003 into the Servicemembers Civil Relief Act (SCRA). 50 U.S.C. App. 501 et. seq. Generally, the statute has been construed to protect United States military personnel while they defend our country. (Mark E. Sullivan, The Military Divorce Handbook 93 (American Bar Assoc. 2006).

One primary section of the statute provides relief to United States Military personnel from civil actions while on active duty. Under this provision, a service member can obtain a temporary stay from a civil action while on active duty if they provide documentation that the lawsuit will materially affect the service members ability to appear in the proceeding and a letter from the service members commanding officer that military duty prevents the service member from appearing in court. 50 U.S.C.A. 521(a)-(b).

Minnesota Case Law

Although the SCRA generally allows an extension of time for a service member to respond to a civil action, courts will intervene. In Minnesota, this has been the case. In Antioch Co. v. Scrapbook Borders, Inc., the District Court reviewed a motion for stay under the SRA in a copyright infringement case. The service member was a director on the company being accused of copyright infringement. Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 647 (D. Ct. Minn. 2002). The service member applied for the stay on actions under the SRA. At the outset, the Court agreed the SRA is always to be liberally construed to protect those . . . [who] drop their own affairs in service of the nation. Id. at 648. However, upon examination of the service members duties, the Court believed he could readily defend the action. The facts indicated that the service member was regularly stationed in the United States and the parties can work together . . . to provide [the servicemember] with enough time and notice to appropriately accommodate his schedule. Id. at 650. Ultimately, the Court concluded that they will summarily [deny] request for a stay in circumstances . . . where the service-person has only related that he is unable [to] defend an action, without any real evidence to support the contention. Id. at 645.

Antioch Co. is certainly the exception, not the rule. As stated above, Congress passed the Servicemembers Civil Relief Act for the benefit for our brave men and women serving our country.

If you are a current active duty or former military member in need of legal assistance, contact a helpful Minnesota family law attorney for advice on how to use your standing as U.S. military personnel to your advantage.

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Domestic Violence in Minnesota Family LawCompetent Family Law Attorneys Must Screen for Domestic Violence

Although we normally think of our lawyers are simply people who can fully explain the laws and court procedures theyre following when critical documents must be drafted and filed for us, they are also officers of the court and have other special responsibilities. We take our responsibility as advocates against domestic violence in Minnesota family law seriously.

Its in light of these additional duties that the Domestic Abuse Committee of the Family Law Section of the Minnesota Bar Association carefully researched and then approved a number of client screening questions in recent years. These are designed to help lawyers more fully meet the needs of clients with all kinds of child custody, divorce, and other family law issues.

Were sharing information about this screening process so youll know that we care enough to fully understand all that youre coping with when you seek out legal help. We will do all we can to help you feel comfortable about discussing any threats currently being made against you by your current or ex-spouse. We always maintain complete confidentiality regarding such matters only disclosing whats necessary to the court.

Types of Inquiries We May Make in Hopes of Fully Helping and Protecting You

  • Stalking and harassment. We need to know if youre currently being harassed or stalked in any manner since this can make your life and that of your children quite dangerous. Once we get this information, we will seek whatever protective orders are required, after discussing your various options with you;
  • Verbal threats can be as painful as physical blows. We will take all threats being made against you seriously. Its also useful if you can tell us what types of intimidating comments are being made to you. Far too often, physical violence follows on the heels of repeated verbal threats. Were here to advocate for you;
  • Specific telephone harassment at work or calls made to childrens schools. Your current or ex-spouse has no right whatsoever to repeatedly call you at your job or make constant demands regarding the children by contacting the administrative or teaching staff at their schools. Please share this type of information with us so we can do all thats possible to help you and your children live normal lives;
  • Refusals to let you as a spouse or the children regularly interact with other relatives. Abusive adults often demand complete control of other family members. They will also even try to isolate you from such people or your closest friends to deny you the type of support system we all need to function in a healthy manner. If youre being told you cannot interact with such people, please know that you can trust us with this information. You have legal rights in this area and well do our best to protect them;
  • Please share information about past physical abuse, choking attempts or shoving or pushing episodes. These are never normal and they clearly indicate that you and your children are in danger;
  • Some abusers will threaten suicide in an effort to control you and anything you try and do through the legal system. We will guard your interactions with us completely, taking care not to contact you in any manner that might put your privacy at risk. If necessary, we can arrange for you to do the majority of the contacting so that your spouse can remain fully unaware that you are in the initial stages of seeking legal help;
  • Finally, please inform us about all past police interventions or responses to your 9-1-1 calls. We are fully aware that your safety and that of your children is most at risk once your abusive spouse learns that youre definitely planning to leave the marriage.

Please know that as your Minnesota family law attorneys, we will never be judgmental in regards to any abusive episodes you choose to share with us. We dont believe any adult has the right to demean or threaten any other adult or child, regardless of what marital status may still exist.

Our goal is to deliver all family law services you need so you can fully pursue and enjoy a healthy and happy future.

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Contact the Flanders Law Firm today. I offerfree consultationsto all potential clients. Call(612) 424-0398.

 

Dakota County Grandparent Visitation - Flanders Law Firm LLCAs most people know, courts rarely want to terminate any adults parental rights regarding their children.

In fact, recent decades have revealed that even when theres strong reason to believe that one (never criminally convicted) parent may have killed the other, it still may be in the childrens best interests to be raised by the one surviving parent.

Although our culture clearly embraces the presumption that most parents are the best caregivers for their dependent children, Minnesota has passed legislation setting forth guidelines for its courts and social service agencies to help them decide when to terminate someones parental rights

You can learn more about the most common situations giving rise to this type of action by reading the 2015 Minnesota Statutes, Public Welfare and Related Activities, Chapter 260C, Section 260C.301. Its entitled Termination of Parental Rights. Heres a summary of the key provisions of this statute.

Acts and Omissions that Commonly Lead to the Termination of MN Parental Rights

Minnesota has assigned the duty to its juvenile courts to decide when parental rights should be terminated either on a voluntary or involuntary basis. In those rare instances when parents want to have their parental rights terminated, they must provide written consent for this action to be taken, usually after clearly explaining why they wish to let go of these rights.

However, the most common way that parental rights are terminated in Minnesota involves a juvenile court or public welfare agency initiating this action by filing a petition seeking this type of order or ruling. A family law attorney should be consulted for this. In general, only very negative circumstances can justify this involuntary type of parental rights termination, including situations when:

  • A parent has abandoned a child to the extent that the childs most basic needs are not being met. Such needs generally include providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the childs physical, mental, or emotional health and development;
  • A parent who is financially capable of doing so and who has been ordered by a court to financially contribute to a childs needs keeps refusing to do so;
  • A parent has been found to be palpably unfit to be a party to the parent and child relationship often based upon a prior, negative ruling related to one or more of the persons other children;
  • Necessary changes have not been met. After a child has been temporarily placed out of his/her home to receive care, one or both of the parents continue to fail to meet minimum standards set by the courts or statutes that would allow the child to return home.

Behaviors or Habits that Can Directly Lead to a Petition to Terminate Parental Rights

  • Chemical dependency on certain types of illegal or harmful drugs. Social service agencies will normally make every effort to helpful an addicted parent obtain the treatment s/he needs in order to maintain a positive, active relationship with a child if the parent keeps working hard to remain clean and sober;
  • Conviction of certain types of crimes. These include crimes set forth in Section 260.012, paragraph (g), clauses (1) to (5);
  • A parent has deserted an infant under two years of age. Also, the specific circumstances must indicate an intent not to return to care for the child;
  • A parent has not had any contact with a child on a regular basis. Agencies tend to look and see if such neglect or lack of demonstrated interest has extended over six months or longer;
  • A child remains in foster care due to the abandonment of the parent;
  • A parent demonstrates abandonment by legally denying paternity;
  • Any behavior that a court clearly finds is directly at odds with the best interests of the parents child.

If your parental rights are now being threatened by a court, a social services agency or the custodial parent, you need to immediately schedule an appointment with your Minnesota family law attorney.

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Contact the Flanders Law Firm today. I offerfree consultationsto all potential clients. Call(612) 424-0398.

 

How is Spousal Support Calculated in MinnesotaKey Factors Affecting Spousal Support

Although both former spouses often keep working full-time after a divorce today, there are times when a court will still make a significant support award to one party. This frequently happens after one spouse has shouldered the majority of the child-rearing duties for a lengthy time period and never had the chance to obtain a college degree or significant job training.

Fortunately, Minnesota statutes are open to providing long-term maintenance payments when circumstances clearly indicate a need for such an approach.

Whether youre the spouse needing support payments or the one who may be asked to pay them, youll want to review the following factors that courts often consider when deciding if an award should be made. Of course, should either partys circumstances change considerably on down the road, courts will often adjust an award.

How is Spousal Support Calculated in Minnesota?

  • The way the couples property was divided in the divorce. Keep in mind that both parties have a duty to wisely invest any sums of money awarded to them;
  • The separate income and assets of each party. Courts will carefully analyze the assets of the party ordered to pay temporary support to see what amount s/he can reasonably pay;
  • How long the parties were married and the existence of a binding pre-nuptial agreement.

Some states will also look to see how long a couple living together prior to marriage in determining an award. Naturally, very short marriages often dont end with any sizeable or lengthy support being awarded to either party;

  • The age and health status of each spouse;
  • The current earning capacity of each party;
  • The existence of any dependent children born to the couple. Also, courts will take into full consideration the needs of a child of any age who is severely disabled and unable to care for himself;
  • Questions will be asked to determine if one spouse left the workforce mainly to care for the childrens needs.

Many other factors may also be considered, including each partys marketable skills (even if they need to be updated). Courts may also inquire whether either party worked full-time to put the other one through college or graduate school and if either party has already received (or expects to soon receive) a sizeable inheritance.

Obtaining Professional Help: Youll Need to Learn About Your Spouses Entire Assets

One of the main reasons youll need the help of your Minnesota family law attorney while going through a divorce is to learn all you can about your spouses total assets. Far too often, one or both spouses may have kept certain assets secret during the course of the marriage, never revealing their existence.

Keep in mind that while your spouses legally separate assets cant be awarded to you they can still influence the courts decision as to how much spousal support the wealthier party can afford to pay the other one. Also, you do have a right to learn their full value.

Your attorney will help you obtain such useful information as:

  • Your ex-spouses current monthly income and expenses. Courts can often quickly glean where a party needing to make support payments can cut back on excessive spending by studying these figures. If all that is set forth does not equal the net income, the party will have to explain where the balance is going even if its going straight into a 401k or other investment accounts;
  • All of the data required to properly evaluate your former spouses retirement and investment accounts. Of course, if you were married for a fairly lengthy period of time, you were probably awarded a percentage of any retirement account or a lump sum payment for your share of any future payments;
  • Information pertaining to your ex-spouses health insurance. It can prove very useful to remain covered under this policy for a lengthy period of time;
  • All data available regarding your ex-spouses work bonuses. These may include the periodic award of company stock, overtime pay, and other less obvious job benefits.

As your lawyer will tell you, all of the key information concerning the award of temporary or permanent maintenance awards in Minnesota is set forth in Chapter 518 of the Minnesota statutes (Section 518. 552). Like many other states, Minnesota has substituted the term spousal maintenance for alimony in its statutes.

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Contact the Flanders Law Firm today. I offer free consultations to all potential clients. Call (612) 424-0398.

Minnesota Child Custody EmergenciesAddressing Minnesota Child Custody Emergencies

Fortunately, Minnesota family law statutes are so well drafted that you can obtain fairly rapid relief or action when a child custody emergency develops. This type of situation often occurs as a result of many unique events.

Perhaps youve just learned that your ex who has primary custody of the kids is: (1) once again abusing illegal drugs; (2) was recently convicted again for DUI — or (3) is planning to take the kids out of the country without telling you. Under all of these circumstances, and many others, your Minnesota family law attorney can contact the family law court on your behalf in order to promptly address all serious concerns.

Your lawyer will usually either petition the family law court for an appropriate temporary order or possibly request an ex parte hearing (one which will not be attended by the other parent or his/her attorney). Heres additional information about these possible remedies.

Family Court Temporary and Restraining Orders

According to 2015 MN Statutes, Domestic Relations, Chapter 518, Section 518.131:

In regards to all child custody or child support matters that arise following the dissolution of a marriage, either party can ask the court for help in handling either routine or emergency issues including the types of events set forth as examples above. The courts are fully aware that childrens physical and emotional well-being can be seriously jeopardized if theyre not prepared to respond to emergency requests for help.

A hypothetical emergency situation requiring court action. Lets assume that youve just learned that your former spouse, who has primary custody of the children during every school week and normally drives them to and from their schools was just convicted of a DUI or DWI for the second time. Deeply concerned about your childrens safety, you want to immediately challenge the current custody arrangements so you can at least gain the right to personally transport the children to school and all major appointments — until your former spouse can demonstrate long-term, successful sobriety to the court.

  1. Your Lawyer Can File a Motion with the Court — Asking to Temporarily Amend the Most Recent Child Custody Agreement.

Once you meet with your Minnesota family law attorney, he can draft a petition asking the appropriate family law court to temporarily amend the original child custody agreement since that would be in the best interests of the childrens safety. (Youll need to provide official proof of the drunk driving conviction to the court). Normally, this type of motion would be filed with the court and a copy served on your ex-spouse and his/her attorney.

A hearing on your motion would normally be scheduled as soon as the court can work

it into its schedule. Should the court rule in your favor, the court can issue a

temporary order amending the child custody arrangement and issue a restraining order

forbidding the recently convicted parent from transporting the children in any manner.

You might also request temporary, full physical custody of the children, too.

  1. Addressing Your Emergency Child Custody Matter by Means of an Ex Parte Motion/Hearing — or Meeting with the Judge

If you or your attorney view your situation as an emergency, you might also proceed

by requesting an ex parte meeting with — or hearing before a family law judge. This

allows you to press forward quickly with your request prior to giving the other parent

time to attend the proceeding. (However, the court will need to serve your ex-spouse with

any new ruling made on your behalf following the ex parte (contact from one party)

proceeding).

When meeting with your attorney, he will fully explain to you all that you can or cannot achieve by obtaining a temporary or restraining order. Heres a quick look at some of the actions that cannot be pursued in this manner.

Forbidden or Impermissible Actions to Be Handled by New Orders

According to Subdivision 2 of Section 518.131 of the MN Domestic Relations Chapter 518, you cannot proceed in the manner referenced above in an effort to:

  • Deny parenting time to a parent unless the court finds that the parenting time is likely to cause physical or emotional harm to the child;
  • Exclude a party from the family home of the parties unless the court finds that physical or emotional harm to one of the parties or to the children of the parties is likely to result, or that the exclusion is reasonable in the circumstances; or
  • Vacate or modify an order granted under section01, subdivision 6, paragraph (a), clause (1), restraining an abusing party from committing acts of domestic abuse, except that (Please review this entire statute by visiting www.revisor.leg.state.mn.us/statutes/?id=518.131)
  • Your lawyer will also need to review the additional limitations imposed in regards to all ex parte requests concerning child custody with you set forth on the same page just referenced).

As this general information indicates, you do have immediate options for addressing nearly any type of emergency child custody issue that may arise. Simply contact your family law attorney without delay so you can begin seeking the necessary changes to all pertinent custody orders.

Free Initial Consultations

Contact the Flanders Law Firmtoday. The firm offersfree consultationsto all potential clients. Call(612) 424-0398.

 

Minnesota Families and the Servicemembers Civil Relief Act (SCRA)

April 27, 2016

All of us are grateful for the many men and women who serve this country both here and abroad. In keeping with that respect and gratitude, our government passed the Minnesota Families and theServicemembers Civil Relief Act (SCRA) to help these individuals fully protect their legal rights while serving on active duty. Obviously, when you […]

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Dakota County Divorce | How is Spousal Support (Maintenance) Calculated?

April 26, 2016

How is Spousal Support is Calculated in Minnesota Do you have questions about how Spousal Support is Calculated in Minnesota? Although both former spouses often keep working full-time after a divorce today, there are times when a court will still make a significant support award to one party. This frequently happens after one spouse has […]

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MN Divorce Law | Child Custody & Support: Clear Statutory Guidance in Minnesota

April 1, 2016

Seeking MN Child Support Guidance? How about child custody? Read on. Although its always sad when any couple with children must file for divorce, at least parents in this state can benefit from our clearly drafted custody and support statutes. Even a quick reading of Chapter 518 of the Domestic Relations statutes reveals that both […]

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