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Minnesota Divorce Retainers

June 23, 2014 by  
Filed under Divorce, Family Law, Retainer

When you’re thinking about divorce expenses or looking to hire a divorce attorney, it’s important that you take into consideration Minnesota divorce retainers and understand retainer fee agreements. If you’ve never hired a lawyer before, you may be wondering, “What’s a Retainer?” This article explains what a retainer is, how a retainer works in Minnesota divorce and family law cases, and what you need to know before signing a retainer fee agreement or representation contract with an attorney.

Minnesota Divorce RetainersLegal Retainer Definition

A retainer (also sometimes referred to as a, retainer fee) is a good-faith, advance payment made to a lawyer for legal services. The retainer can be a single advance payment or reoccurring, depending on your situation. (We’ll talk more about single vs. reoccurring payments later in the article).

Retainer Purpose

In addition to signing an engagement letter (or representation contract), the retainer establishes a client-attorney relationship between the individual and the lawyer. Without the retainer, an attorney will not work on your divorce or family law case, provide legal advice or representation. Thus, the retainer provides the individual with legal services and ensures that the attorney will be paid for such services. 

How Does a Retainer Work?

First, the retainer is typically collected during the intake appointment with the attorney. There are a number of different payment methods available to you. Learn about the different retainer payment options by reading: How to Pay for a Divorce Lawyer. Additionally, in some cases, your spouse can be ordered to pay your attorney fees. To learn more about when you can don’t have to pay attorney fees, read: Attorney Fees

After intake, the lawyer puts the retainer into a separate trust account for the client. The retainer belongs to the client. No money from the retainer can be collected by the attorney unless it has been earned.

Then, as the lawyer works on the divorce or family law case, s/he charges the client for legal services provided. The client pays for such legal services with the retainer (the money in the trust account). As services are rendered, the lawyer withdraws money from the retainer for payment. Once earned, money from the retainer is deposited into the firm’s account and no longer belongs to the client. Any unearned portion of the retainer is returned back to the client. (We’ll talk more about retainer refunds later in the article).

Minnesota Divorce Retainers

Typically, divorce and family law attorneys in Minnesota require an initial retainer somewhere between $3,000 – $5,000 and charge on an hourly rate basis. Minnesota laws, specifically Minnesota’s Rules of Professional Conduct Regarding Fees, guide what attorneys can charge, when they can charge, how they can charge and their responsibilities to the client-attorney relationship. For example, in Minnesota, it’s illegal for an attorney to charge contingency fees in family law matters. However, Minnesota divorce and family law attorneys can legally seek reimbursement from the client for in-house costs and materials, like: paper; printing; coping; telephone charges; postage; etc…

TIP: In-house costs quickly add up and can exceed people’s expectations. Therefore, it’s important that you ask the attorney how additional case costs and expenses are handled. For example, at Majeski Law, we do not charge the client separately for such in-house expenses listed above.

Single (Initial) Retainer vs. Reoccurring (Replenishing) Retainer Fees

The initial retainer is the amount your divorce or family law attorney believes is reasonably necessary to start working on your case. As your case proceeds, you may need to replenish your initial retainer to continue working with the attorney. Thus, the initial retainer may cover all legal services during your divorce or family law case or you may have reoccurring retainer fees. Whether you’ll have a single retainer fee or reoccurring retainer fees will depend mostly on you, your attorney and the specifics of your case. (We’ll talk more about replenishing the retainer later in this article).

Minnesota Divorce Retainers

TIP: Don’t be afraid to bring up money concerns with your divorce or family law attorney. In fact, it’s best to address any financial issues right away with your attorney. Generally, the more you, as the client, do yourself, the more money you can save. Therefore, it can be helpful to identify tasks that you can do yourself, and tasks that you will need an attorney to complete for you.

Retainer versus Additional Costs and Total Expense

Typically, the retainer is only used to pay attorney fees. However, you’ll have additional case expenses, such as court filing fees. Court fees are set by the court, collected by the court, and paid to the court. You pay court fees regardless of whether you have an attorney or not as they are mandatory in the state of Minnesota. For example, it costs about $400 to file for divorce in Minnesota.

In addition, during your divorce or family law case, you may acquire additional services from a third party, such as a mediator, custody evaluator or a property appraiser. Like court fees, your attorney has nothing to do with third party fees, and retainer funds are not used to pay such third party fees. Instead, payment for services from a third party should be arranged between the third party and the client, directly.

NOTE: An attorney may be willing to use money from the retainer to pay a court filing or process server fee on your behalf, but those tend to be the only (and rare) exceptions. If retainer money is used to pay a court or process server fee, the firm can provide you with a court and/or process server receipt. In addition, best practice would also be to have such items and services clearly accounted for on the firm’s invoice.

Thus, the retainer does not cover your divorce or family law case expenses. Instead, the retainer is only for attorney fees. We stress this point, because some individuals mistakenly take the initial retainer fee to be the total cost of their divorce or family law case. Although attorney fees (and thus, the retainer) impact the total cost, they’re not the only expenses in a divorce or family law case. Instead, how much your divorce or family law case will cost, will depend upon your specific situation and several different factors. Therefore, it’s best if you can budget accordingly.

Read: How much a Divorce Costs in Minnesota to estimate your total cost and learn how you can save money.

Minnesota Divorce Retainers

Retainer and Retainer Fee Agreement

The terms of your engagement letter or representation contract with your attorney should include a section regarding the retainer fee agreement. The retainer fee agreement or retainer agreement you make with your lawyer should not only be in writing, but should clearly state the firm’s procedures and policies regarding the following: Retainer amount; Hourly rates; Services provided; Scope of representation; etc…

Retainer and Accounting Practices

In addition, your lawyer should provide you with a regular invoice. A good invoice shows you what services were provided, who completed the work (such as, an attorney or a paralegal), and the amount withdrawn from the retainer. Best practice would be that you receive a monthly invoice, unless no services were provided that month. In that case, depending on the firm, you may or may not receive an invoice that month. The firm’s accounting and invoice practices should also be explained and stated in writing in the retainer agreement.

Retainer Fee, Replenishing the Retainer and Legal Representation

As mentioned earlier, you may need to replenish the retainer. Some divorce and family law attorneys require the retainer to be replenished to the initial amount, while others require a larger or smaller amount. Inability to replenish the retainer usually results in the divorce or family law attorney withdrawing from the case. In that instance, the client would either need to represent him/herself in the divorce or family law matter or seek services from a free legal clinic. Again, the firm’s policy regarding representation and retainer replenishment should be clearly explained and stated in writing in the retainer agreement.

Retainer Refund

Once your case is completed and closed with the firm, you should receive your last invoice. At this time, you may still have money left in your retainer. As previously mentioned, the retainer money belongs to the client, until it’s earned. Therefore, any unearned portion of the retainer belongs to the client and must be returned.

In addition, you, the client, may fire your divorce or family law attorney at any time. Similarly, whatever balance is left in your retainer after closing out your case, would be returned to you. Therefore, whether you end up receiving money back, depends on the remaining balance of your retainer when your case is closed (regardless of whether your case is finished or because you fired your attorney).

Minnesota Divorce Retainers

NOTE: Because the retainer money belongs to the client until earned and the client is not receiving the entire retainer fee, it’s not truly a retainer refund. It’s actually more accurate to call it an unearned retainer return. However, because “unearned retainer return” is not commonly used or searched for by the public, “retainer refund” is used, and refers to the remaining (unearned) portion of the retainer that gets returned back to the client. Again, we emphasize that the client only receives the unearned portion of the retainer at the end of the case.

Minnesota Divorce Retainers Summary:

  • The retainer is money that you designate up front to your lawyer to be used to pay for services provided during your divorce or family law case.
  • The retainer is put into a trust account and belongs to you. No money is collected from the retainer until it’s earned by the attorney.
  • As services are rendered, money from the retainer is paid to the firm. Once collected by the firm, that money no longer belongs to the client.
  • Depending on your case, you may need to replenish the initial retainer. Inability to pay for services, by not replenishing the retainer, dissolves the client-attorney relationship, legal representation and all legal services.
  • At any time in your case, you can decide to represent yourself or fire your current attorney and hire another attorney. At this time, the remaining balance would be returned back to you. Otherwise, any remaining balance is returned back to you at the end of your divorce or family law case.
  • It’s very important that you read the retainer fee agreement carefully to make sure that the firm’s policies and procedures are stated in writing and that you have a complete understanding before signing the contract.

If you still have questions about retainers in Minnesota divorces or family law cases, the consultation is a great time to ask for more details and clarification. Otherwise, ask your retainer questions when you’re scheduling the intake appointment. To learn what else you should be asking when you’re scheduling the intake appointment, read: Scheduling an Intake Appointment with a Divorce Attorney for more details and to get your free checklist. 

NBA Star Dwayne Wade’s ex-wife: “On the Streets” … at $25,000 a month.

July 30, 2013 by  
Filed under Divorce, Family Law

In a divorce case that’s apparently focusing on alimony and property division issues, NBA Star Dwayne Wade’s wife staged a protest, saying she, the mother of his children, is on the streets because he doesn’t want to pay what he owes her. According to her, it’s more than $25,000 a month. The full article can be found here.

A central theme to many alimony decisions is the “Standard of Living of the Marriage”. Obviously a NBA-star and his wife’s standard is going to be higher than most of us, it does make you wonder though how much is enough.

Of interest as well, the length of time from the start of the marriage to the separation was only five years.  Usually shorter marriages are harder to get alimony awards for.

I’m surprised Mr. Wade didn’t insist on a prenuptial agreement as he was already a successful NBA player when they got married, and he could have saved himself a lot of these headaches if post-marital property and spousal maintenance rights had been hammered out before hand.

Also interesting. D-Wade got sole custody of the two joint children of the marriage.  This obviously saves him a significant amount in child support.  I’d be curious how his lawyer’s managed to get this as Wade travels presumably for much of the year and likely hasn’t had a ton of time to be in a primary caretaker role.

Child Support Collection “Remedy”- KDWB

A local radio station, 101.3 KDWB out of Shoreview, Minnesota, has been broadcasting in the Twin Cities for over fifty years.  Dave Ryan, one of the radio personalities on KDWB, hosts the “Dave Ryan in the Morning” show on weekdays.

One of the skits he performs on the show is “When was the last time you paid child support?”  The following description of the skit comes from Wikipedia on April 16th, 2013:

“When was the last time you paid child support: A prank where Dave calls shady, lazy baby-daddies who spend their child support money on binge drinking. Dave invites them to take a short 3-question quiz to win an iPad mini or some other modest electronic give-away. The first two questions are a breeze, but the final one reveals what tools these wankers truly are. The ensuing rage-spewed insults from the baby mamma make this bit an instant classic.”

As a family law attorney, I would not advocate any of my clients participating in this show and airing their family’s dirty laundry in public.  More importantly, creating more hostility between parents is generally detrimental to the best interests of the children.

However, I must say the skit can be enjoyable to listen to when a parent (usually a mother) decides to do it anyway.  Some of the clips seem like they were taken straight out of an old Jerry Springer episode.

Downloadable and streamable sound clips from the show can be found on his podcast here: http://daveryanshow.iheart.com/cc-common/podcast.html

Obviously this isn’t a remedy for not paying child support.  It does illustrate the tension and animosity a couple can have towards each other when children and financial issues come into play following a breakup. 

These difficulties also highlight the benefit of parties who are willing to cooperate and try alternative dispute resolution or negotiation in a family court matter to try to reach a peaceful agreement.  It’s obvious that many of these couples on the air chose to make their situation a difficult fight rather than a cooperative, problem-solving endeavor.

It also raises questions regarding privacy issues in family law matters and child support matters in particular, although I’m not sure how those would resolve.

Divorce: Putting Down the Other Parent

The following was written by Judge Michael Haas after 25 years on the bench in Cass County, Minnesota.  He retired in 2002, however his advice to parents in Minnesota divorce and child custody cases remains as profound as it was years ago.

The Judge’s Letter to Divorcing Parents

“Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is your problem and your fault.

No matter what you think of the other party—or what your family thinks of the other party—these children are one-half of each of your. Remember that, because every time you tell your child what an “idiot” his father is, or what a “fool” his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of him is bad.

That is an unforgivable thing to do to a child. That is not love. That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.

I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer.”

To Parents Involved in Divorce and Child Custody Situations

I hope that putting the best interests of your children first is what drives anyone in a child custody or divorce proceeding.  If that’s not enough, there are also practical reasons in the context of a divorce case to be as honorable as you can. 

The inability to get along with the other parent can reflect badly on your character in the eyes of the judicial officer and make him or her question your ability to be a mature and positive role model for your children. 

In addition, putting down the other parent can indicate to the judicial officer that you are not willing and/or able to put the interests of your child ahead of your own feelings towards the other parent.

Judges have a great deal of experience with family law situations and are well able to get to the bottom of situations if one parent is truly bad for the child.  Bad mouthing them, particularly in front of the children, will only reflect badly on you.

You Want to Divorce Your Husband, But He Gave Birth

Divorcing a Husband who gave birth to your children

This is the situation facing an Arizona couple.  Thomas and Nancy Beatie have been married for nine years.  They have three children together. They both want a divorce now.  However, they’re running into a snag.

The Marriage

It turns out Mr. Beatie was born a woman and had undergone a sex-change operation.  Despite the change, Mr. Beatie retained his ability to give birth to children and had three children during the marriage.

The couple married in Hawaii in 2003.  Mrs. Beatie is unable to have children, so Mr. Beatie conceived with donated sperm on all three occasions.

The couple are now together seeking a divorce.  If not for the transgender issue it would be a fairly routine dissolution.

The Legal Status of the Marriage

Arizona has a ban on same-sex marriages.  So now the judge has a quandary as he contemplates this divorce.  On one hand, he can’t recognize a same-sex marriage as valid by the laws of his state.  On the other, it’s not quite clear whether the couple is same-sex or a man and woman.

The judge will have to decide whether on which side a marriage involving a transgendered person falls.

Impact in Minnesota: What Marriage Validity Means

If this case were in Minnesota, the implications of whether or not the marriage was valid from the start are significant.  It could influence custody rights, child support, alimony, and property division.

In Minnesota, marriage can grant certain rights and privileges, some of which may continue in the case of a divorce.  If there never is a legal marriage, those rights could vanish.

 

Happy Holidays to Your Family from Majeski Law

December 22, 2012 by  
Filed under Divorce, Family Law

Majeski Law wishes you Happy Holidays

I hope everyone is enjoying this holiday season and is fortunate to not have any family law issues during this happy time of year.

I’ll post some more Family Law and Divorce articles in the new year.  I’m also looking to add some more family law oriented guides in the next few months.

Happy holidays to you and your family!

Can I Get an Annulment in Minnesota?

November 17, 2012 by  
Filed under Divorce, Family Law

The short answer, is probably “no”.  There seem to be a lot of popular misconceptions about annulments.  In particular, some believe that annulment is simply a convenient alternative to divorce and preferably a low-cost one.  This is simply not the case.

Divorce vs. Annulment

A divorce is different from an annulment.  A divorce is the legalized end of a valid marriage.  An annulment is a legal recognition that the marriage had some deficiency from the start and therefore will not be recognized as a marriage from the start. 

The reality is, in Minnesota there are only a few narrow circumstances in which you may be entitled to an annulment.  In Minnesota, there are two types of situation in which an annulment may apply.  There are “void” marriages and “voidable” marriages.

Void vs. Voidable Marriages

Void marriages refer to marriages that were never and can never be valid as a matter of law.  These fall into three types:

  • Same-sex marriages
  • Marriages with close blood relatives
  • Marriages when one party was still previously married

Most frequently I see this question pop up for the last situation.  Specifically, a later spouse discovers that their partner was married previously and had never been legally divorced.  In this situation, the latter marriage is automatically invalid in Minnesota.  The solution is to have the married party legally divorce and then remarry their second spouse.

Voidable marriages are those that will be allowed to continue, despite their deficiency, unless one party or the other challenges the marriage in a timely manner based on the deficiency.  Voidable marriages in Minnesota include:

  • At least one party was underage (less than 18)
  • At least one party was not able to consummate the marriage and the other party did not know of this at the time of marriage or
  • At least one party lacked capacity due to any of:

Incapacity due to being under the influence of drugs or alcohol

Mental incapacity

One party committed fraud or used force to compel the marriage

Annulment Conditions Usually Don’t Apply to Divorce Situations

The bulk of reasons for dissolving a marriage, like financial struggles, infidelity, disagreements regarding child care, or abuse don’t generally trigger the conditions needed for an annulment.  This is why divorce, not annulment, is almost always the proper course of action if one party wants to get out of a marriage.

Parents: How to Help Children Through a Divorce

Obviously a divorce is a significant loss to many of the husbands and wives who have to go through with it.  But even more so, divorces can affect the wellbeing, psychological health, and emotional development of children of a marriage.  The following are some ways in which parents can help minimize the negative effect divorce can have on their children.

Distinguish the Parent/Parent and Parent/Child Relationships

Remind the child that it’s not their fault.  Highlight the difference between the relationship between both parents and the relationship each parent has with the child. 

On a related note, continue to maintain an active and positive parent/child relationship after the divorce.  A child still needs this from both parents, even after a divorce. Emphasize that both parents will continue to love and care for the child.

Keep Divorce and Post-Divorce Conflict to a Minimum 

This may be the most important predictor of eventual outcome for the children.  Yes in many cases there are bitter, unresolved feelings between the parents.  These feelings often make it easy to fall into the trap of lashing out at the other parent or speaking badly of the other parent.  This is particularly harmful if it’s done in front of the child.  Generally, follow the age-old adage: “If you can’t say anything nice, don’t say anything at all.”

Often, a divorce resolved through alternative dispute resolution, like mediation, and coupled with a parenting plan agreement made by both parents can help reduce the sense of anger and “loss” associated with a full-blown divorce trial.  This can help the parents avoid much of the anger and resentment and make it easier to be at least civil with the other parent.   These alternative methods to trial are highly recommended in most cases.

Stand United, If Possible

Remember, parenting doesn’t end with the divorce.  In many children’s eyes their mother and father are a cohesive unit who they refer to as “my parents”, not necessarily “my mom” and “my dad”. 

Imagine the difficult choices a child may face if placed in a situation in which the child is keenly aware of the anger between both parents.  The child may often be worried about showing preference for one parent by showing affection to one first or more often.  Children should never have to make those choices.

Communicate Openly and Directly with the Other Parent

Parents should negotiate with each other regarding how they will resolve any parental disputes in the future.  This may involve some form of direct negotiation or alternative dispute resolution.  Generally, unless a child is endangered, going back to court should be a last resort of the parties.

In addition, communication should be direct between the parents whenever possible (situations with domestic abuse would be the notable exception).  Children should not be used as shuttle messengers between the parents.

You Don’t Divorce Your Children

Remember, you never stop being a parent.  A child deserves the best efforts of both parents to help them develop into an emotionally health and happy adult.

 

 

“You’re Ugly, I want a Divorce”

The Love Story turns “Ugly”

Man falls for woman.  Man and woman get married in China.  The happy couple conceive their first baby and enjoy nine months of marital bliss.  

Then the baby comes and there’s a problem.  The father finds the baby hideously ugly.  So ugly, in fact, that he can’t believe it came from him.  

Prelude to Divorce: Adultery or Something Else?

He’s immediately suspicious and begins investigating to figure out what happened.  It turns out, his wife was completely loyal and faithful to him during the marriage.  

However when they got married there was one thing she had kept from him.  She had previously received extensive facial plastic surgery, reportedly to the tune of over $100,000.

“What?  You aren’t really attractive?” –  Divorce Time

So, the husband filed for divorce on the grounds of “false pretenses”.  Interestingly, the false pretense in this case was that  the wife was genetically not as attractive as she appeared to be.  This led to the unexpected result for the husband of the “ugly” baby.

Now here’s the weird part.  The man not only got his divorce, but he successfully sued his wife for $120,000 in damages.  

Here’s one link to the story divorce story here, however it’s all over the internet if you’re interested in searching for more.

Don’t Worry, Divorce in Minnesota is not the Same

And for those of you out there like me who weren’t blessed to look like Brad Pitt or Angelina Jolie, don’t worry, looks are not grounds for divorce in Minnesota.  You only have to show there’s been an “irretrievable breakdown of the marriage.”

All joking aside, the take away message here: It’s a good idea to be open and honest about your marital relationship to avoid these kind of unpleasant surprises later.  Minnesota is a “no fault” divorce state, so the standard is effectively very low to get the actual divorce.

Divorces and Facebook Do Not Mix

October 14, 2012 by  
Filed under Divorce, Family Law

Divorce Drama and Social Media

Social Media, and Facebook in particular, has changed the way we communicate.  The term “Facebook Drama” has entered our modern language and become synonymous with contentious presentation of information over the Facebook website.

The implications of a simple relationship status change from “in a relationship” or “married” to “single” can send digital shockwaves across a social group.

A divorce can be the most contentious and dramatic event that someone may experience.  It may seem natural to talk about, complain, vent, or bad mouth the other side through what’s become a normal communication channel in our society.  This is never a good idea.

Interesting Article on the Use of Social Media in Divorce Cases

This article on Social Times does a great job laying out how social media can be used in divorce cases: Social Media and Divorce

The article identifies four major areas that social media information has been used in family law and divorce cases:

  • A person’s state of mind
  • Evidence of communication
  • Evidence of time and place
  • Evidence of actions

You can imagine how differently some people would talk or behave in these situations if they knew that what they’re posting could be evaluated in the above way.

Some may be thinking: “They can’t do that.”  Oh yes, they can.  There is no “reasonable expectation of privacy” on social media, like there is with other activities in your home.  In other words, a judge may order you to produce passwords and anything else needed to access your accounts and what you’ve written.  The information on your social media pages is treated the same as other, more traditional forms of evidence.

What to Remember with Social Media and Family Cases

The take away message: Anything placed on any social media, whether it be Facebook, Twitter, or any other outlet is easily accessible.  This includes people who may work against your interests.  Social media information is admissible evidence in court.

Never say anything related to a family case or an anticipated case, divorce or otherwise on any social media outlet.  You can only potentially be giving the other side information which could be used as evidence against you.

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