The firm provides a broad spectrum of legal services. Our goal is to provide the highest quality advocacy and counsel for our clients in a cost effective manner.
Family law is a broad phrase describing several areas of the law pertaining to matters of any family in order to retain peace and civility with respect to domestic relations, especially in matters involving minor children. Within our firm, that means not only issues involving marriage, divorce, separation, and marital dissolution, but also matters involving guardianships, conservatorships, wills and trusts. Family law matters can involve addressing spousal abuse, paternity, adoption, child protection, and child abuse.
It can also deal with custody jurisdiction (known as the Uniform Child Custody Jurisdiction and Enforcement Act, or “UCCJEA”; this is the body of law that addresses which court should have jurisdiction over matters pertaining to a child’s custody). The most common areas that are associated with the term “family law” include divorce, annulment, property settlements, alimony/spousal maintenance, premarital agreements (also known as antenuptial or prenuptial agreements) mediation, arbitration, nonmarital claims, pre-marital claims, early neutral evaluation, collaborative law, and other alternative dispute resolution methods.
Divorce (also known as a marital dissolution) involves the process of terminating a marital union, which determines the legal duties and responsibilities of the parties and dissolves the bonds of matrimony. The legal process of divorce may also include issues of custody of minor children, alimony, spousal maintenance, spousal support, child support, marital property, marital debt, visitation, and parenting time.
Divorce law matters also involve post-divorce issues such as modification of custody, modification of alimony, spousal maintenance or spousal support, and modification of child support. Representation can also include premarital agreements (also known as antenuptial and prenuptial agreements) mediation, arbitration, non-marital claims, pre-marital claims, early neutral evaluation, collaborative law, and other alternative dispute resolution methods.
Custody involves the legal and practical relationship between a parent and his or her child. Normally there are issues involving physical custody (meaning which of the parents would primarily care for a child on a day-to-day basis), as well as legal custody (meaning decision-making involving a child, including religious, educational, and medical issues). If the parents are unmarried, the father may need to establish his paternity before asserting his parental rights. Often divorce and custody law are interchangeable with the phrase “family law.”
In adoption, one person is given the legal standing as the parent of another person, usually a child. The adoptive parent takes on the legal responsibilities as though he or she were the biological parent of the child, including the right to inherit, responsibility for the child’s acts, as well as financial responsibility. The adoptive parent also takes on the rights of a biological parent including that of spending time with the child and being entitled to information regarding the child, such as school information and medical information.
The adoptive child takes on the rights as though they were the biological child of the adoptive parent. Not only does the child become a member of that parent’s family, they also have a right to inherit, a right to receive any social security benefits that a child may receive, and a right to financial support from the parent.
An order for adoption is an order granted by a court of competent jurisdiction to do so. An adoption usually requires a home study, criminal background checks, and the involvement of social services both before and after the adoption.
Prior to an adoption, the rights of the biological parent must be terminated if there are already two parents for the adoptive child. In a stepparent adoption, the procedures are less involved but the parental rights of one parent must be terminated in order for the stepparent to become the adoptive parent.
Mediation is a form of alternative dispute resolution (ADR) in which a neutral party, the mediator, works with two or more parties to help the parties come to an agreement on the matter in dispute. Mediation is confidential and a mediated agreement can include terms which a court would not order, but which will satisfy the parties and resolve the dispute.
The greatest benefits in resolving disputes through mediation are that the parties control the outcome, they can eliminate the need for a judicial decision or trial, and it is completely confidential.
A mediated agreement can be entered as a court order in a pending case, or it can be a contract between the parties, binding them to the agreement.
Estate planning is the process of anticipating and arranging for the management and/or disposition of an estate through the use of financial powers of attorney, health care directives (a.k.a. “health care powers of attorney” or a “living will”), wills, trusts, beneficiary designations, property ownership, transfer on death deeds (TODD), and other estate planning tools. It is getting your affairs in order to prepare for the possibility of incapacity and eventual death.
Proper estate planning can narrow down the possibility of uncertainties when it comes to distribution of an estate and can increase the value of the estate by minimizing the risk of certain kinds of taxes and other expenses.
Through the use of wills and trusts, you can designate to whom you wish your assets to go and even when the distribution will be made: whether immediately after death, or spread throughout a period of years.
Some examples of certain properties and assets you may wish to distribute to your beneficiaries include the following:
- Real property (and things attached to it: houses, barns, sheds, garages, etc.)
- Personal property (including furniture, automobiles, boats, etc.)
- Accounts, stocks and bonds, and retirement plan benefits
- Jewelry, art, antiques, and collectibles
- All businesses and business interests
- Life insurance, pension benefits, and pension plans
Estate planning is also a good process for laying out your final wishes or requests. For example, in a health care directive (a.k.a. a “living will”), you may wish to control certain medical matters if you are ill and can no longer express your wishes. You can also appoint a guardian in your will to care for any children or person under your authority who is otherwise incapable of caring for themselves. In a power of attorney, you may appoint someone to handle your financial affairs while you are incapacitated.
Many people wonder when the best time to begin their estate planning. The answer is now, while you are capable of making these difficult decisions. If you become incapacitated or pass away before putting your plans in place, there is no certainty your estate will be distributed in the manner you wish.
Wills, Trusts, & Living Trusts
A will is a set of instructions whereby you direct the distribution of your assets at your death. Without having a will in place, in the event of your death, the court may have the ultimate decision as to where your assets and/or other valuables will go.
In your will, you may name certain persons to inherit certain property you own such as real estate, vehicles, antiques or collectibles, jewelry, etc. You may also name who is to receive the remainder of your estate and in what share they are to receive such assets. Typically, you will name more than one beneficiary to receive your assets in case one or more are not able, deceased, or you simply want to split your assets between more than one person.
A beneficiary is a person who receives benefits from a will or trust. For example, if you leave one of your assets to your child in your will or trust, that child is a beneficiary of that will or trust.
Wills also can contain last wishes of the will holder and may name certain guardians for minor children. You will name who you wish to be the administrator/executor of your estate: in other words, who will be in charge of carrying out your wishes, as stated in your will, upon your death.
Again, without a will in place, the court may have the ultimate decision as to where your assets and/or other valuables go upon your death, who will become the legal guardian of your minor children, and who should be in charge of administering your estate.
A trust is a document which contains certain arrangements whereby the trust holder (the trustee) legally holds title of property “in trust” for the benefit of another person (the beneficiary). If a trust is properly funded and written, it can also be a useful tool to avoid a probate proceeding of your estate upon your death.
You can choose to be your own trustee, which entitles you to complete ownership of all property held in trust. You will name a successor trustee who will have a fiduciary responsibility to administer the trust upon your incapacity or death, solely in the interest of the beneficiary. Your assets will be held by the trustee until such time as the trust directs for their disbursement.
In a trust you will name beneficiaries of your estate, what they will take from your estate, and when you desire their shares to be distributed. If you have minor children or children with special needs, you may establish provisions as to when such a child is to receive his or her share.
Estate & Trust Administration
Estate and trust administration is the management and settling of the estate of a deceased person. Estate and trust administration may or may not involve a probate proceeding. After the death of a family member or friend, there are many obligations to be handled that carry personal liability if you are the administrator (personal representative or executor) or trustee of an estate. The responsibilities can be overwhelming and daunting.
The administrator or trustee is responsible for carrying out the wishes of the decedent as directed in the will or trust. It may involve collecting and protecting assets; valuation of assets; transferring assets to the estate, trust, or a named person or entity; preparing a formal inventory for the beneficiaries/heirs of the will or trust; filing federal and state tax returns; resolving debts of the decedent; preparing a final accounting, distribution, and division of assets, etc.
Every estate is different and can be from large and complex to modest and uncomplicated. Our firm is experienced in the issues that often arise during estate and trust administration and can provide advice and counsel on your situation. Our lawyers can assist you with your duties or we can do the work for you. Our firm also represents those named as beneficiaries or heirs in wills and trusts to protect their rights as well.
Probate is the legal process of transferring and distributing probate assets and resolving all claims against an estate after a person’s death whether there was a will or not.
Probate assets are those assets which the deceased person owned and which are titled in his/her name alone and without beneficiary designations. Non-probate assets are those assets which are held jointly with right of survivorship where other owners survive, or with beneficiary designations, or with transferable on death designations, or with payable on death designations.
If the probate estate exceeds a certain amount of money ($50,000 or more in the State of Minnesota and $50,000 or more in the State of Wisconsin), or real estate is owned by the deceased person alone, then those assets may be subject to probate.
If you are the appointed personal representative or nominated personal representative (or executor) of an estate, we can help you carry out your duties and settle the estate, or we can take on the burden for you. Probate is a complex body of law and can be overwhelming without the help of an experienced attorney on your side.
We also represent beneficiaries or heirs who may want to make sure they are being treated fairly and assets are distributed properly. Unfortunately, the death of a loved one can lead to disagreement even among the closest of families.
Guardianships & Conservatorships
In a guardianship or conservatorship, a person who is usually under a disability, called the ward, is determined by the court to be unable to manage his or her own affairs. On a guardianship, the guardian is responsible for the decision making for the ward regarding medical care, place of residence, and other matters pertaining to the physical needs of the ward.
A conservator is responsible for making decisions about the assets and liabilities of the ward such as managing investments, paying bills, and even making gifts. Conservators and guardians are appointed by the court after the court ascertains that the proposed person is capable of making the decisions and has a background that will withstand scrutiny. Usually a criminal background check is done and fingerprints are taken of proposed conservators and guardians.
The main objective of conservatorships and guardianships is the well-being and best interests of the ward. The appointed conservator or guardian must file an annual report with the court and notify the ward of their right to approach the court toterminate the guardianship or conservatorship.
Elder law focuses on the legal issues that are unique to seniors and vulnerable adults and recognizes that unique issues or needs may arise when attorneys represent these individuals in other practice areas. For example, the Minnesota Vulnerable Adult Act applies to many individuals simply based upon their status or residence. However, when assisting senior, elderly, or vulnerable clients with drafting estate planning documents (such as a will) or entering real estate transactions (such as a life estate), an attorney must also consider the effect of other laws upon those actions, such as medical assistance rules.
One goal of elder law is to prevent elder abuse, which has become a great concern to many people. Sadly, many seniors, elderly adults, and vulnerable adults have fallen victim to financial exploitation by relatives, caregivers, and scam or con artists who prey upon these populations. Mortgage companies and the financial sector have also created several products, such as the reverse mortgage, which may work well for some but not for everyone. Many of the laws which cover these issues create two separate avenues of relief: there may be a private right of action for the victim against the individual abuser (with the victim recovering money damages) as well as a public one (with the local government taking action against the offending business or facility, such as imposing fines or revoking operations permits or licenses).
Another goal of elder law is to assist these individuals as they plan ahead for their future. Depending upon their situation, we counsel clients on ways to insure against the rising cost of long term medical and nursing home care. If you or your spouse is a veteran, veteran’s benefits from the Veterans Administration (VA) may also be available to defray some of these costs. Many clients are also concerned with how to properly “spend down” their property and assets without jeopardizing eligibility for medical assistance. We also help clients weigh their options regarding property or asset transfers (and kinds of property ownership) when making gifts to children and other loved ones, especially if a client may need to rely upon medical assistance at some point in the future.
When one person or entity (a bank, etc.) furnishes services, money, or goods to another person or entity, a debtor-creditor relationship is created. The providing party is the “creditor” and the receiving party is the “debtor.” Such relationships are usually based upon the debtor’s promise to repay the creditor at a later time, often through a payment plan (such as a monthly bill). If the debtor fails to make the agreed-upon payment by the deadline, the creditor may begin a debt collection process to seek repayment. For example, credit card companies often have collections staff to contact customers who fall behind on their bills.
If the creditor cannot get repaid through such efforts, they may hire a debt collection agency or an attorney to begin more formal collection efforts. These third party “debt collectors” must follow strict federal and state laws when communicating with debtors. It is important for creditors to know their responsibilities to avoid penalties and for debtors to know their rights to dispute invalid debts and avoid harassment.
If a creditor/debt collector and debtor cannot settle the debt, the creditor may resort to a lawsuit. A creditor may request a court grant them a “money judgment” for the amount the debtor owes. If the relationship was based upon goods, however, a creditor may request “replevin” for the goods to be returned. Depending upon the nature of the judgment it receives, a creditor has several options to use until the debt is paid in full. For example, they may contact the debtor’s employer to garnish wages from each paycheck or the debtor’s bank to levy funds from his or her accounts. However, a creditor cannot touch certain kinds and amounts of a debtor’s property which federal or state law protects as “exempt” from collection.
Bankruptcy is one option for persons who have debts that they cannot pay. Many people pursue bankruptcy when their creditors begin to repossess, garnish, or otherwise take possession of the debtor’s property. In the United States, bankruptcy is under the jurisdiction of the federal court and is intended to give people with excess debt and insufficient assets a chance to “discharge” the debt and get a fresh start.
Bankruptcy requires the debtor to disclose all debt and all assets on their bankruptcy petition and to permit the bankruptcy trustee, who was appointed by the bankruptcy court, to manage the debt and assets. Most people can keep most of their property, but every situation is different. Most consumers will seek relief in a Chapter 7 bankruptcy, called a liquidation bankruptcy, or a Chapter 13 bankruptcy, which is when the debtor repays all or some of their debts over time through a Chapter 13 bankruptcy trustee, after calculations are made as to how much disposable income is available to repay creditors.
After bankruptcy, most debtors have little or no unsecured debt, but may still have loans or debt for which some of their property was used as collateral, such as a mortgage on a house. However, it is important for debtors to understand that not all debts can be discharged through bankruptcy. For example, debtors typically cannot get out of their child support, spousal support (also known as spousal maintenance or alimony), or student loan obligations through bankruptcy. Those debts typically remain intact after bankruptcy.
Real estate, or real property law, is defined by Black’s Law Dictionary as real property—land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land. Real property law can involve real estate sales, purchase agreements, land contracts (such as easements), contracts for deed, real estate litigation, partition actions, commercial real estate issues, evictions, unlawful detainers, landlord/tenant matters, zoning and land use issues, mechanic’s liens, and residential and commercial leases, including recreational or hunting leases.
Business law, also known as corporate law, covers both business and commercial transactions. Business law embodies setting up corporations, partnerships, and related entities. If you are considering starting a business, an attorney can advise you on which business entity to select—such as a corporation versus a partnership—and limited liability variations. You may also desire assistance in drafting and filing the necessary paperwork, such as certificates, Articles of Incorporation, Bylaws, and Partnership or Operating Agreements.
Business law also involves the buying and selling of businesses. Depending upon the type of the business and each party’s needs, the legal documents required for such transactions may include a Confidentiality Agreement, Letter of Intent, Stock or Asset Purchase Agreement, Bill of Sale, Promissory Note, Non-Competition Agreement, and employment-related documents.
The object of civil law is to redress wrongdoing by seeking compensation or restitution. Unlike criminal matters, the wrongdoer (defendant) is not punished, and only suffers so much harm as is necessary to make good the wrong he or she has done to the victim (plaintiff).
Civil litigation is a broad phrase in the legal system which addresses actions in either state or federal court to seek damages, usually monetary compensation, on behalf of the aggrieved party. Civil litigation can involve family law, divorce, custody, contract matters, real estate matters, probate, juvenile protection, construction litigation, debtor/creditor law, and judgment enforcement. Generally, the legal system refers to anything not pertaining to criminal matters as a civil matter.
Under most circumstances in civil litigation, the victim needs to show (has the burden of proving) that the wrongdoer is 51% or more liable (i.e., responsible) for the damages. This is called the “preponderance of the evidence,” and is a far lower burden of proof than in a criminal case, where the prosecution has to prove a defendant’s guilt “beyond a reasonable doubt.”
The phrase “criminal defense” pertains to prosecution by the state or federal government of either a person or business for an act which has been classified as a crime by statute. This is unlike civil law, which involves lawsuits between two individuals or private entities. An act in violation of a public law is considered a crime. When a matter involves criminal law, the lawsuit is initiated by the state or federal government rather than being initiated by the victim, as is the case in civil law.
The standard in criminal law is much higher than in civil law. The prosecutor in a criminal law case has to prove to a judge or a jury that the individual committed a crime “beyond a reasonable doubt.” Under most circumstances, in a civil case, the victim needs to show, by a preponderance of the evidence, that a defendant is 51% or more liable (i.e., responsible) for the damages. In Minnesota, crimes can be classified as felonies, gross misdemeanors, misdemeanors, or petty misdemeanors.
Contact us in Duluth, MN at 218-722-2144 for a free consultation if you have a case for any of our law practice areas.