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Jaspers, Moriarty & Wetherille, P.A.
Seasoned Legal Judgment For The South Metro Area

Shakopee Legal Blog

Deciding where you are going to live after the divorce

When you are in a divorce, there are many major decisions to make. As a CBS MoneyWatch article notes, one of the more fundamental ones is the decision of where to live moving forward.

There are generally two main choices for a post-divorce living situation. You could either keep living at the home you were in during the marriage, or you could move to a new place. Each of these routes has a set of additional decisions connected to it. If you decide to pursue staying in the marital home, there are decisions to make on what sort of arrangements to try to reach with one’s ex regarding things such as the ownership of the home and who will cover mortgage payments moving forward. If you decide instead to move to a new place, there are decisions such as whether to buy a new home or instead to rent a place.

Why You Need a Lawyer for Contract Management

Lots of small businesses forego counsel at their peril – not always because of conscious choice, but frequently out of naïveté. Owners and managers of businesses of all stripes often overestimate their personal talents in contracting by conflating their strong skills in negotiation and fostering business relationships, which they are often strong at, with strength in contract drafting – the process of reducing an agreement to an enforceable writing.One “cardinal rule” of negotiation is don’t give your number first, that way you make the other side set the ceiling on the negotiations. However, a cardinal rule in contract making is the drafter starts at a position of dominance – there is a first strike advantage.

Minnesota's "New" Cohabitation Law

Minnesota’s spousal maintenance statute has just changed adding a potential new set of elements to allow a former spouse to modify a previously ordered spousal maintenance (alimony) award. The idea for the new language and changes derives from a 1979 Minnesota Supreme Court decision, and addresses a common issue arises in spousal maintenance calculation: Many recipients of spousal maintenance cohabitate with significant others and avoid marriage, effectively keeping their household income at a lower rate in order to receive a higher amount in maintenance from an ex-spouse after dissolution. For over 37 years, Minnesota case law has adopted the idea that “a meretricious relationship between a divorced spouse and another may be grounds for reducing or terminating alimony ‘in so far as it might improve an ex-spouse’s economic well-being.’” Abbott v. Abbott 282 N.W.2d 561, 564 (Minn. 1979). What does that mean? Basically if you are living together like a married couple, with the exception of actually being married, that could be grounds to modify the spousal support award.

Prince's Estate - Intestate Inheritance

By: Jim Conway, Shareholder Estate planning, including writing a will, is important to accurately describe who you wish to inherit your property and to avoid infighting among heirs, particularly where a person has no living children. In Minnesota, a person that dies without making a will passes their estate in accordance with Minnesota's intestate succession laws. These laws spell out who gets what property, and which relations have priority over other ones. For Prince's estate this will be a little messy because Prince apparently has no children, has a full-blood sibling, and a number of half-siblings, some of whom may not be known to the others. Sorting out who is even related to Prince is going to be a primary issue. But once that happens, the question many people are asking is whether Prince's full-blood sibling will get all or the estate, or a greater share, than any half-siblings or more distant relations.

Tennessee to make Bible Official State Book

Legislators in Tennessee have recently passed a bill to make the Holy Bible the official state book. News reports indicate that the bill is now headed to the governor's desk, but a similar measure was rejected in a prior year. An overarching concern raised by some citizens and watchdog groups like the ACLU is that a law enshrining a particular religious text as a state's official text is unconstitutional. Is that true even if a super majority of the legislature approves of the measure?

JMW is a #OneStopLawShop

The practice of law has seen a movement towards single-area practices for solo and small firms over the last 30 years.  Many lawyers make the choice to focus on a single area of practice to market themselves as “specialists” (though the law and legal ethics do not allow lawyers to claim specialist status unless formally approved by the Minnesota Bar Association).  The choice may be based upon a marketing strategy, a genuine interest in a certain area of practice, or simple economics.  There are very good reasons for lawyers and law firms to choose to focus on a specific practice areas.  That being said, there are also very good reasons to have a broad scope of experience in your law firm.

At JMW, we consciously choose to offer a #onestoplawshop practice model.  Why?  Here are some of the reasons:

  •   Our firm was founded in the 1970’s.  To sustain itself, a law firm at that time had to be able to handle virtually any issue encountered locally with stellar client service.  This was a founding principle of our practice, and one that continues to shape our practice today.
  • This is perhaps the most significant consideration when a law firm is deciding what services it will provide.  In a large city, where lawyers are plentiful, there is a good reason to limit the practice areas.  In a smaller city, with fewer lawyers, the local market needs professionals that can tackle a wide-range of issues.  Though a growing city, Shakopee still has a small town feel and many folks want to keep their business local.  With the Scott County Courthouse just two blocks away from our office, offering a #onestoplawshop provides the best service for our clients.
  • Full-Service Advice. This is the number one benefit to choosing a law firm with a broad base of knowledge.  We find that a client’s needs often overlap from one area of the law to another.  For example, we may represent a client in their divorce, and the divorce may have issues related to a past or potential bankruptcy proceeding.  The client may need estate planning, but also owns a small business that must be considered in the estate plan so the client’s wishes are carried out effectively.  The client may need assistance with real estate work in conjunction with a divorce, a business deal, or in a probate or an estate planning matter.  A client may also have a child with special needs that requires a court-appointed guardian or conservator following a family law matter.

Almost every client we serve has needs that span multiple practice areas.  By having attorneys with experience in most practice areas, JMW is able to bring a team approach to handling client matters that provides the BEST advice possible for the client, and reasonable rates.

If you’ve ever wondered whether we handle a certain type of case, search for #onestoplawshop on Twitter or Facebook to see our firm updates on things we’ve worked on.  You might be surprised.  If you have a legal matter that you’d like to discuss, call our #onestoplawshop at (952) 445-2817 for a free consultation.

Getting on TV if You're an Underdog Candidate - The FCC Equal Time Rule

Saavy political campaigns saw Donald Trump's November 7 "SNL" appearance as a golden opportunity to get their candidates front and center before American TV audiences at no charge. Under the 1934 Communications Act, TV and radio stations originating their own programming and permitting a legally qualified political candidate to use their station must "afford equal opportunities to all other such candidates for that office in the use of such broadcasting station..."  The station affording the "equal time" rights cannot censor the equal use, so it cannot limit the ideas presented, or prevent advertisement in contrast to entertainment content. There are four exceptions to the equal time rule, namely use as a part of a newscast, news interview, documentary or on-the-spot coverage, like a presidential address or campaign debate. The other part of the law states the affording of time must be at the same rate charged for comparable use. This provision will likely allow campaigns to either get free time or discounted advertising time with the station.

Jacob Wetterling Case - Statute of Limitations

Recent developments in the Jacob Wetterling abduction case, and what is now perceived to be a murder investigation, has created renewed buzz about unsolved cases and the law that surrounds them. One question on many minds is how a case believed to involve a child abduction and sexual assault could go unpunished if a certain period of time passes in an unsolved case. That is a question front and center to what appears to be a criminal investigation of Daniel James Heinrich related to the Wetterling case. Law enforcement announced the execution of a search warrant at Heinrich's home resulting in the discovery of child pornography and possible evidence tied to the Wetterling case. But absent evidence directly tying him to Wetterling's abduction, a murder charge (which would be the only surviving claim) is unlikely.

Criminal cases, with the exception of murder or other crimes resulting in the death of the victim and a few other excepted situations, have a statute of limitations. After the limitations period expires, usually three to six years after the commission of the crime, the defendant has a nonexculpatory defense to criminal prosecution based upon the passage of time. That means they can be relieved of criminal liability even if they are guilty of committing the crime. As a result, sex crimes involving children often expire nine years after their commission in the absence of DNA evidence linking the victim and the defendant.

Limitations periods are usually established to force law enforcement to timely act on evidence and investigate and bring charges quickly so the best evidence is available. From a practical standpoint, evidence and witnesses tend to disappear over time, so this makes sense. Opponents of limitations periods frequently indicate that for some crimes, society’s interest in retribution and justice will exceed the time period provided in the statute of limitations. This is perhaps most acute in the case of sex crimes and crimes involving children. But even if damning evidence was found linking Heinrich to a sex crime with Wetterling 25+ years ago, but not also Wetterling's murder, the statute of limitations periods will have run. This would likely lead commentors to push for the legislature to extend the limitations period to allow the prosecution to move forward. However, it is not constitutionally permissible to extend a statute of limitations period after that period has run - the constitution prohibits ex post facto laws, i.e. laws which punish an act after the act has already been committed.

Many Minnesotans and others across the country will be closely monitoring this investigation as Wetterling's 1989 abduction, and the ensuing public reaction, reshaped how Americans raised their children including the concept of "stranger danger" and the creation of the AMBER alert system. 

Law 101: Guardianships & Conservatorships

Why does someone need to be under a guardianship? Most commonly, it is method for which a person is appointed by the court to provide for the needs of an incapacitated person. Under the Minnesota Statutes, “incapacitated person” means an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance. Minn. Stat. 524.5-102.

Once a child turns eighteen, a parent no longer has the right to make decisions on the child’s behalf and will lose the ability to contact medical providers. If you have a child with special needs who meets the definition of an incapacitated person, then you need to speak to an attorney to start a guardianship proceeding on your child’s behalf.

There are various powers under the statute, and your attorney will advise you that the least restrictive alternative is necessary and the court will require a guardian only receive powers and duties that are necessary. It is best to meet with your attorney prior to your child turning eighteen, so that the petition and accompanying paperwork can be filed with the court prior to your child’s eighteenth birthday, so that there is little, or no, gap between your child’s birthday and your appointment.

The steps to petition for guardianship are simple; we suggest contacting your attorney three months prior to your child’s birthday. The county in which you reside may cover all fees in the guardianship proceeding if you file the proper paperwork on your child’s behalf. After being appointed as guardian, you must file yearly paperwork updating the court your child’s condition. The court wants assurance that the guardianship is still necessary and appropriate.

Minor guardianships are necessary if child’s parent passes away or is unable to take care of the child’s needs, such as shelter, education, food and medical care. In some circumstances, temporary guardianship may be appropriate. Guardianship also becomes necessary when a person becomes incapacitated because of an injury like a TBI, or when a person has dementia or Alzheimer’s. Your medical provider should be able to advise you when someone is no longer of capacity to make decisions on their own behalf. At that time, your attorney can assist you with pursuing a guardianship. In the case of an accident or the abuse of an incapacitated person, an emergency guardianship can be obtained within days of the request.

A conservatorship is necessary if the proposed protected person has money or real property that needs to be protected, and there is no less restrictive way to assist that person. A person who is getting Social Security or SSI does not have to have a conservator of the estate, because the Social Security Administration can appoint a representative payee for someone who cannot manage those funds.

Trump Wants to End Birthright Citizenship - What Does That Mean?

In the CNN GOP Presidential debate this week Donald Trump expressed his view that birthright citizenship should end and that the children of illegal immigrants should be deported.

Birthright citizenship is a concept embedded in our constitution through the 14th Amendment, which states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside." As a result, as long as you are born in the United States, you are automatically an American citizen. The 14th Amendment was ratified in 1868, with the original intent to ensure that the children of slaves born in the U.S. would be deemed citizens, repudiating the decision from Dred Scott. Trump seems to think that there is some way around this concept. Perhaps Trump or pundits are focusing on the exception "subject to the jurisdiction thereof" thinking that could exclude the children of illegal immigrants from the automatic grant of citizenship- but that is not what that section means. There is actually already a U.S. Supreme Court case, U.S. v. Wong Kim Ark, which says that particular exception is for the children of diplomats and similarly situated foreign agents. Relatedly, and on point with Trump's plan to deport all children born to illegal immigrants in the U.S., there is also already a U.S. Supreme Court case saying that if citizenship is held, that citizenship cannot be revoked by the federal government unless the citizenship was conferred by naturalization rather than birth. As a result, natural born citizen children of illegal immigrants are constitutionally protected from deportation.I think the Donald is fired on this one.

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