Frequently Asked Questions

CRIMINAL LAW

If I am called by a police officer or other law enforcement officer and asked to meet to discuss something that is being investigated but for which I have not been charged, do I have to talk to the officer?

No. Even after a person has been charged with a crime, that person has no legal obligation to talk to a police officer or investigator about the alleged crime and should be very cautious in doing so because statements voluntarily made can be used against a person in court. If you believe you are under suspicion for having committed a crime or having helped commit or conceal a crime, consult an attorney immediately.

If I am stopped in my vehicle by a law enforcement officer, do I have to answer the officer's questions?

No. As with non-traffic offenses, statements voluntarily made (i.e., made when a person has not actually been arrested) can be used against that person in court.

If I have been stopped and arrested for driving under the influence of alcohol or drugs, do I have to take a breath (urine, blood) test?

Yes and no. Because driver's licenses are considered a "privilege" and not a "right," states are generally free to create legal requirements for obtaining and retaining a driver's license. Minnesota, as well as most states, have laws which result in termination of a driver's license for varying periods of time for refusal to take a test designed to determine whether the driver has illegal levels of alcohol or non-prescription drugs in him/her. In Minnesota, the license loss period is one year for refusal to take such a test so the decision to take or not to take such a test is a grave decision. Most attorneys advise taking the test, however, in light of the serious consequences for refusal and in light of various defenses which may exist to a test result which appears to violate the law.

I was arrested a few years ago and pled guilty to a charge of assault. Since then I have been denied a job and also denied a lease for an apartment. Is there anything I can do?

You may be able to have the arrest and conviction removed from all public records through judicial expungement. To qualify for expungement of a criminal conviction you must be able to show that the benefit to you from removal of the conviction is at least equal to the disadvantages to the public from the elimination of the records and the burden of issuing, enforcing, and monitoring the expungement order. Please call us if you would like us to represent you in an expungement proceeding.

FAMILY LAW

Does a person have to be legally separated before obtaining a divorce?

No, a person does not have to be legally separated before obtaining a divorce. In fact, a legal separation action is a separate legal action, very similar to a divorce action. The only difference is that at the end of the proceeding a person would have a decree of legal separation rather than a decree of divorce. Minnesota law does not require any type of separation prior to starting a divorce action.

Does mediation replace divorce?

Mediation does not replace divorce. However, it can be an important part of a divorce proceeding. Mediation is a process in which the two parties meet with a neutral third party mediator, who does not represent either party. The mediator's job is to assist the parties in reaching agreement on some or all issues in their divorce. Once an agreement is reached in mediation, normally the mediator will put the agreement into a written document, which both parties would then review with their respective attorneys. If both parties go into mediation with an open mind, and understanding that they may have to compromise on certain issues, mediation can be very successful. However, if one or both parties do not intend to compromise, or if the parties go into the proceeding on "uneven ground", such as where one party has more "power" over the other party, such as where there has been domestic abuse between the parties, mediation will probably be less successful. Even when the parties reach a mediated agreement settling all issues in the divorce, they still need to have that agreement memorialized through the appropriate dissolution documents and submitted to the court.

How does the court decide who is awarded custody of the children?

If the parties cannot agree on who will have custody of the children, the parties may be referred to the county Court Services department, or to an individual evaluator, for custody mediation and/or a custody evaluation. In that case, the evaluator and the court will be evaluating a set of 13 factors to determine what is in the best interests of the minor children. The factors which the court looks at include: The wishes of the parents; the reasonable preference of the child, if the court feels the child is of sufficient age to express a preference; who has been the primary caretaker; the intimacy of the relationship between each parent and the child; the interaction of the child with other family members or persons who may significantly affect the child's best interests; the child's adjustment to home, school, and community; the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining the continuity; the permanence, as a family unit, of the existing or proposed custodial home; the mental and physical health of the individuals involved; the capacity and disposition of each party to give the child love, affection, and guidance and to continue educating and raising the child in the child's culture and religion or creed; the child's cultural background; the effect on the child of the actions of an abuser, if domestic abuse has occurred between the parents or between a parent and another individual; and the disposition of each party to encourage and permit frequent and continuing contact by the other parent with the child. Based upon a review of all of these facts, the evaluator will make a recommendation to the judge. The judge, however, makes the final determination after considering these factors and the recommendations of the evaluator.

What is joint custody?

First, it is important to understand that there are two kinds of custody -- legal custody and physical custody. Legal custody has to do with who makes the major decisions in the children's lives, normally dealing with health care, education, and religion. Minnesota law presumes that joint legal custody is appropriate, unless there are special circumstances which would dictate a different result. Physical custody is the determination of which party the children will live with. Physical custody can be awarded solely to one party, or can be awarded jointly to both parties. If joint physical custody is awarded, it could mean a 50/50 splitting of time between the parties' homes, or a more uneven division of time, such as 60% with one party and 40% with the other, or even a division where the children would reside with one party during the school months and the other party during the summer months, with scheduled parenting time with the other party.

Why do I need an attorney to represent me in my divorce action? Can't I just use a paralegal service?

While some cases may be suitable for "do-it-yourself" divorces, there are often issues in a divorce that make it more complex than simply filling in some forms. Often it is very important for the parties to have legal advice regarding issues such as custody, child support, division of assets and debts, etc. There may also be important tax ramifications related to how certain issues are decided. What the parties need to keep in mind is that a paralegal service cannot provide you with any legal advice, they can only provide you with the forms to fill in yourself. Also, it is very important to know that once a divorce decree is entered, it is very difficult, if not impossible, to make any modifications in it. This is particularly true in regard to division of assets and debts. The court will not change the decree later, simply because a party did not understand the impact of what they were signing. Even in those cases when something can be changed or corrected later, it is often more expensive to do so than it would have been to have an attorney representing you in the first place.

How much will a divorce cost me?

The cost of a divorce varies greatly, depending upon how the matter proceeds. In other words, the more time that an attorney has to spend on the case, the more it will cost. Thus, the longer the parties choose to argue about the issues, the more it will cost them. An attorney charges the client for whatever time they spend working on the case. Hourly rates do, however, vary, based primarily on the attorney's experience. The amount of time that an attorney needs to spend on a case also depends upon the issues in the case, and can even depend upon who the other attorney and/or judge are! A very simple divorce with no children and no property might cost as little as $1,200.00, up to a complicated divorce that goes to trial, costing tens of thousands of dollars. Thus, it is very difficult for an attorney to provide a client with an estimate of what the proceeding will cost, at the beginning of the case, at least until the issues and parties' respective positions are known.

CORPORATE LAW

Should I use the sample Articles of Incorporation or Organization that the Secretary of State supplies to start my corporation or LLC?

The forms supplied by the Secretary of State contain only the minimal information and decisions about your business organization that are required by the statutes. There are several important issues regarding stock, voting, and power issues that you should discuss with a lawyer before you organize your business that aren't included in the form Articles you can get from the Secretary of State. There are also several protective provisions that can and should be included in a good set of Articles of Incorporation or Organization that are not included in the Secretary of State's minimal form of Articles.

Are there a lot of complicated requirements like keeping minutes that I would have to comply with if I incorporated my business or organized it as an LLC?

There are some record keeping practices that you should complete and keep current in order to protect your corporate or LLC status. These included keeping of minutes and the filing of an annual report with the Secretary of State. You will also have to file a separate tax return for your business in addition to your normal 1040 and state returns. The record keeping requirement can be done in a very informal manner and are records you should probably keep for any type of business, even a sole proprietorship. As part of the business organization process, we will provide you with sample minutes, teach when and how to keep minutes and provide all of the minutes for the organizational meeting you should hold when you incorporate or organize an LLC.