Minneapolis Divorce Attorney & Lawyer : Minnesota Family Law Firm : Brown Law Offices : St. Paul, Twin Cities MN

Minnesota divorce statutes distinguish between marital and non-marital property. Marital property involves property acquired during the marriage, while non-marital property involves an asset that was brought into the marriage or received as an inheritance or gift to one spouse but not the other during the marriage. I'm often asked how Minnesota law treats a personal injury settlement. The answer rests in the nature of the recovery.

In Minnesota, an injury survivor can recover damages for a host of "losses," including past and future wage loss, past and future medical expenses and pain and suffering.

Because wages are considered marital property, the past wage loss portion of an injury settlement is deemed marital in nature. The same is true of proceeds received to pay for past medical expenses: a marital liability. As a result, this portion of the personal injury or worker's compensation award is subject to division among the parties.

However, an award for future wage loss and payment received for future medical care is non-marital. Earnings realized following a dissolution of a marriage remains the exclusive property of the earning spouse. Similarly, a debt incurred by a spouse following divorce must be paid by the person who incurs the obligation. Therefore, these portions of an injury settlement are non-marital in nature and are not subject to division.

Similarly, payments made for pain, suffering and loss of enjoyment of life are not subject to division. In a literal sense, your body is non-marital in nature. You brought, for example, your hand into your marriage. Your hand is not subject to division if the marriage dissolves. If you lose your hand in an accident, you have lost a non-marital asset. Compensation for the lost non-marital asset is non-marital as well.

Difficulty rests in the fact that most personal injury cases are settled before trial. The parties will sign a release form. However, that release form does not typically break down the award into neat categories, leaving room for argument on both sides. A jury verdict form, however, will break down the portion of the award given for wage loss, medical bills and pain and suffering.

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Thanks to Mark Wortman, a top Kansas City divorce lawyer, for his recent post surrounding the "dance" between bankruptcy and divorce. In his Missouri Divorce and Family Law Blog, Wartman writes that it may be better to file bankruptcy before the divorce, in light of the following:

• Federal bankruptcy law will allow married couples to file jointly, eliminating the need for two separate bankruptcy filings and two separate attorney fees after the divorce;
• The parties can exempt (protect) double the amount of property if they file jointly;
• Most married couples have joint debt. Even though the divorce court can divide the debt, it cannot alter the contract with the creditor, meaning that if the spouse ordered to pay doesn’t, creditors are going to come after whoever’s name is on the account. Then the only remedy is a contempt of court proceeding, which is time consuming (up to a year) and costly. All the while, the other spouse has to make the payment or suffer the credit consequences. Joint bankruptcy can eliminate the debt all together and avoid the problem of who pays who;
• Joint filing before the divorce will eliminate the need to litigate issue of debt in the divorce, which reduces the time and expense of the divorce, and avoids the result described above. Remember, a divorce decree is just a piece of paper, enforcing it is a whole different matter;
• Although the bankruptcy law will not allow a divorcee to discharge debts ordered in the divorce, the problem of collection and contempt may cause greater credit problems than the bankruptcy itself;
• Joint filing before divorce will allow for a higher income threshold for Chapter 7 qualification (means test avoidance);
• It most likely (almost guaranteed) that you can rebuild and re-establish your credit much faster than you could ever have paid off the debt, while at the same time getting the past problems behind you and truly getting a “fresh start”; and
• Bankruptcy is not the end of the world. It can be an effective solution to a real problem that real people have during these times.

Well thought advice. Of course, you should speak with a bankruptcy lawyer about these issues if you are really serious about filing in the midst of divorce. Bankruptcy is a niche practice and few divorce attorneys (including, admittedly, this one) have a strong command of the nuances of bankruptcy law and procedure.

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Many people change their name as part of a divorce. As long as you are not doing to so avoid creditors and have no prior felony convictions, you can basically change your name to anything you like. The Minnesota Supreme Court site has an overview of the relevant legal standard.

Communicating the change can be a tedious process. Here are the most important people to provide with your new name:

1. Driver's License Bureau; 
2. Vehicle Registration Department;
3. Credit Card Companies;
4. Insurance Companies;
5. Local Post Office;
6. Utility Companies;
7. Mortgage Lender;
8. Retirement Plan Administrators;
9. State Department (Passport);
10. Voter Registration;
11. Social Security Administration; 
12. Employer's Human Resource Department;
13. Accountant; and 
14. Friends and Family.

Of course, you don't necessarily have to change your name as part of a divorce. However, you can avoid additional drafting, fees, court costs and hearings if you do so in conjunction with the dissolution itself. The change is simply included in the final judgment and decree of the court.

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Hats off to Chicago Divorce Lawyer Marie Fahnert. She recently posted an article entitled 10 Signs of a Bad Divorce Lawyer on her Divorce Blog. What should you avoid in a Minnesota Divorce Lawyer? According to Fahnert, you should avoid a family lawyer who:

1. Empathizes too much with your pain. If you have a stomach ache, you don’t want the doctor seeing you identifying with your pain. You want the doctor to be objective and fix your ailment. Same thing goes for lawyers.
2. Doesn't listen to you. A good lawyer should have a good understanding of your personality, desires and wishes. This can only be achieved through empathetic listening.
3. Promises to avenge. Laws are set up to help both divorcing parties establish themselves after a divorce. There is no place in a divorce courtroom for vengeance. Your lawyer should tell you this.
4. Calls your spouse names. It is common - although not recommended - for divorcing couples to call each other names. It is unacceptable, however, for a lawyer to engage in this kind of conduct. Your lawyer should be seeking to help you view your situation objectively. Name-calling is never objective.
5. Uses inflammatory language. Over the top language does not help resolve conflict. It won’t help you reach a fair outcome in your case. It only makes things worse. When used by a lawyer, inflammatory language also shows a lack of professionalism.
6. Excessively criticizes other lawyers. In ideal divorces there is a lot of collaboration and trust between the opposing lawyers. A lawyer who cannot get along with other lawyers could wreak havoc on this balance. Also, these things are usually reciprocal - why don’t other lawyers like your lawyer?
7. Tells you he’ll “take care” of the divorce for you. There is no divorce lawyer who can “take care” of your case while you sip a martini. Divorce is hard work for everyone involved. There are documents to produce, depositions to attend and court documents to review. Anyone who claims otherwise is not being honest.
8. Predicts the future. Some parts of a case can be somewhat accurately predicted (child support, for example). Most outcomes are not so clear. In truth, outcomes are often a gamble. A lawyer who tells you they have all the answers may be full of hot air.
9. Buys your blatant lies. Nobody likes a liar or a cheater. If your divorce lawyer overlooks your bad behavior it is not because they like you. They’ll drop you like a hot potato when you run out of cash.
10. Does not express his views. It is a lawyer’s job to encourage clients to make the best decisions for their case. This is often in conflict with the path a client feels is best. A lawyer who does not make his views known might be doing you a great disservice. 

Great suggestions. I would add an additional criteria: Focuses on trial from the onset. As I share with each potential client, we are fully prepared to try their case if necessary. But, our initial focus remains on positioning the case for settlement. The best lawyers don't need their cases to go to trial; they have enough work to approach a conflict in a manner most favorable to their client's (not the firm's) bottom line.

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We've posted a number of entries concerning the benefits of settling a divorce as opposed to litigation. Even if you need to litigate, more than 95% of cases will settle before trial.

The following settlement checklist will come in handy as you attempt to figure out if you've got all of your bases covered:

1. Legal Custody: Joint or sole legal custody?
2. Physical Custody: Joint or sole physical custody?
3. Routine Access Schedule: Where will the children be on a given day?
4. Vacation Access Schedule: How many weeks of uninterrupted vacation time with the children?
5. Holiday Access Schedule: Who do the children celebrate with in a given year?
6. School-Year Breaks: Where will the children spend spring break or President's Day, for example?
7. Telephone Contact: What are the rules concerning communication with the children by phone?
8. Transportation: Who will transport the children for parenting time exchanges?
9. Basic Child Support: What is the amount of guideline support to be paid?
10. Medical/Dental Child Support: Who will insure the children and how will uninsured costs be allocated?
11. Child Care Support: How much will each parent pay for daycare?
12. Security for Support: Should one or both parents secure life insurance, naming the other as beneficiary for the benefit of the children?
13. Income Tax Exemptions: Who claims the children on their income taxes?
14. Spousal Maintenance/Alimony: How much and for how long?
15. Medical Insurance: Will each party cover their own?
16. Marital Property: What is a fair and equitable way to value and divide marital property?
17. Non-Marital Property: Does the holder of a non-marital interest retain that interest?
18. Pre-Separation Debts: How is the marital debt divided?
19. Post-Separation Debts: How are debts accrued after separation divided?
20. Fees and Costs: Will one party pay, or each responsible for their own attorney fees and costs?
21. Name Change: Does either spouse wish to change their name?
22. Ongoing Conflicts: Will the parties agree to mediate or use a parenting time consultant if future problems arise?
23. Documents: Do each agree to execute all paperwork necessary to transfer property interests?
24. Non-Disclosure: Does the court retain the ability to re-open the case if it is revealed that one party has hidden assets from the other?

Naturally, there are many other issues that will need to be addressed, but the 24 items listed above will give you a general framework for discussion.

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