Do Hutchinson Criminal Lawyers Defend Protective Order Claims?

Posted on by BThurman

Domestic violence is still a serious problem in Minnesota. So, alleged victims have a number of legal options, if they feel like they need protection. Moreover, there is a strong presumption that the alleged victim has suffered abuse and needs protection. That’s especially true with regard to temporary ex parte protective orders. In these proceedings, the judge only hears the alleged victim’s side of the story. Indeed, many defendants do not know anything about atemporaryr protective order until they receive formal notice.

But a full Order of Protection is much different. Before a McLeod County judge extends the temporary OFP, the judge hears from both sides. In other words, an assertive Hutchinson criminal lawyer has a chance to advocate for you. In our system, this kind of aggressive advocacy is the way the truth comes out. Without help from a Hutchinson criminal defense attorney, the defendant is at the mercy of the court. That’s a bad position to be in.

The stakes are also much higher in full OFP proceedings. For one thing, the judge can extend the protective order for up to two years. Moreover, full OFPS are usually much broader than temporary orders. Full OFPs routinely order defendants to surrender firearms, attend burdensome classes, and pay financial support. Additionally, a full OFP goes on your record forever. Future family law disputes are much harder to resolve favorably with that kind of stain on your background.

Hutchinson Criminal Lawyers, OFPs, and Procedural Issues

At the hearing, the state has the burden of proof as to both aforementioned protective order elements. Lack of evidence on either or both could cause the judge to throw out the extension request and allow the temporary order to expire. To recap, the basic elements of an OFP are:

  • Prior Abuse: Contrary to popular myth, causing physical injury is not a component of a domestic battery case. Any harmful or offensive touching will suffice. However, if there is some physical evidence, like pictures or a doctor’s bill, physical abuse is easier to prove. Abuse can also be verbal, emotional, financial, or pretty much anything else. In non-physical cases, the state must normally establish a pattern of abusive conduct, like repeated stalking, as opposed to just one incident.
  • Need for Protection: Many times, alleged victims change jobs and relocate. If that happens, there may be little need for protection. The same conclusion applies if the alleged abuse was non-physical (verbal, emotional, or whatever). It is possible to suffer physical symptoms, like Post Traumatic Stress Disorder, in these cases, but such injuries are difficult to prove in court.

In a few cases, the alleged victim may not be legally entitled to protection. Some instances involve two people who were dating partners at one point. Under the Minnesota Domestic Abuse Act, these individuals may not be legally entitled to protection.

Procedural issues like these usually only matter at the permanent OFP stage and if the defendant has a good Hutchinson criminal lawyer. Otherwise, the judge will probably grant whatever relief the alleged victim requests.

Substantive Protective Order Defenses

It is rare, but alleged victims sometimes do fabricate abuse allegations. That’s especially true if there is a parallel proceeding in family court, like a child custody dispute. At the height of the Brad Pitt-Angelina Jolie divorce, there were allegations that Ms. Jolie coached her children into making abuse allegations against her estranged husband. Indeed, the FBI eventually cleared him or wrongdoing and the couple agreed on a joint custody order.

The Brangelina thing is not just an isolated incident. In many states, most notably Florida, criminal courts rarely issue protective orders if there is an ongoing civil proceeding elsewhere.

More commonly, many alleged victims are confused about the details. From a scientific perspective, extreme stress inhibits recall ability. So, there may be gaps in the alleged victim’s memory, and people often fill in these gaps with invented memories. Moreover, memory does not fade slowly over time. Most people forget almost all new information in less than forty-eight hours.

Therefore, if significant time passed between the alleged events and the application for protective order, there is a very good chance that the alleged victim’s recollections are shaky at best.

Reach Out to Assertive Attorneys

At a protective order hearing, you need an aggressive Hutchinson criminal lawyer, because the deck may be stacked against you. Even if you need an after-hours appointment, call Carlson & Jones, P.A. for a free consultation.

Can a Hutchinson Family Law Lawyer Make My Ex Help with College Costs?

Posted on by BThurman

Nationwide, college tuition has increased fivefold since 1985, to an average of $22,432 per year for tuition, fees, room, and board. Put another way, the four years of college cost more than the eighteen years of child-rearing which preceded college admission. Additionally, the $22,432 does not represent the total cost of a college education. That figure does not include living expenses and the dreaded “incidentals” category.

In Minnesota, child support always ends at 18 or upon graduation from high school. There is no way, even via a hidden loophole, to force a parent to pay for college expenses. However, voluntary college tuition agreements are enforceable in the Gopher State. Many times, if the children are young at the time of divorce, a Hutchinson family law lawyer will include a reserve clause in the decree. The parties agree to table college tuition reimbursement for the time being and take up the issues when the children are older.

Only support provisions in the decree or other court paperwork are enforceable, according to Minnesota family law. Side agreements, even if they are in writing, are never enforceable in a McLeod County family court. These agreements may not meet the legal definition of a contract, so they may not be enforceable elsewhere either.

Defining Key Terms

Items like tuition, living expenses, and transportation, which are the three major components of a college tuition reimbursement plan, seem straightforward. However, upon closer inspection, they are quite subjective. So, a Hutchinson family law lawyer must aggressively stand up for your financial rights in these matters.

There is a significant difference between community college tuition, in-state public school tuition, out-of-state public school tuition, and private school tuition. Tuition usually includes a number of semi-optional fees as well, such as a meal plan or athletic use fees.

Additionally, most students can work and/or borrow money to pay for college. How much they should work, and how much they should borrow, affects the amount of tuition the parents must pay. Scholarships affect the amount due as well.

In terms of living expenses, there is a cost difference between a dormitory room and a private, off-campus apartment. There is also a difference between a regular dorm and a private dorm, or a one-bedroom apartment and a two-bedroom apartment with three other roommates.

Finally on this point, what constitutes “transportation” expenses? Does that mean a private vehicle along with money for gas and other expenses, two round-trip bus tickets home every semester, or something in between?

Factors a Hutchinson Family Law Lawyer Uses

A number of states, including nearby Illinois, do require both parents to help pay for their children’s college expenses. Some common factors include:

  • Each Parent’s Financial Situation: Total household income after remarriage is generally irrelevant in child support situations. But it is relevant when determining the ability to help pay for college.
  • Child’s Financial Resources: This factor was discussed above. Once they turn 18, people can borrow money, get jobs, and otherwise participate in the economy.
  • Child’s Academic Performance: Both pre-college and college performance may be relevant. A four-year university is not for everyone. Moreover, if the student’s grades fall below a certain level, it’s reasonable to ask if college was the right choice.

These factors are nonbinding, but they do matter a lot. As mentioned, many parents insert reserve clauses into their divorce decrees. Later, Hutchinson family law lawyers often resolve these matters in mediation. The three mentioned factors are a good road map to follow during such a proceeding.

Some Practical Concerns

Many parents begin paying for college when their children are small. They put money into a 529 savings plan or a prepaid tuition plan with a public university. When the time comes to divide educational costs, these parents should receive credit for those expenditures. Arguably, they should receive more than dollar-for-dollar credit. Their forethought and previous sacrifices should mean something.

The payee may be a concern as well. The residential parent is no longer automatically qualified to receive college cost reimbursement funds as trustee. The money could go to the institution directly or to the child.

Finally, one child’s college attendance often affects the other children in the family. If the child attends school locally or comes home frequently, downsizing to a smaller dwelling may not be a realistic option. Under Minnesota law, the non-residential parent is entitled to a child support reduction. But the college tuition reimbursement agreement could also include provisions with regard to regular child support. The judge will almost certainly approve any such agreement, as long as it is in the best interests of the children.

Reach Out to Aggressive Attorneys

College tuition reimbursement is not part of child support in Minnesota, but many parents make it that way. For a free consultation with an experienced Hutchinson family law lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

A Hutchinson Criminal Lawyer Explains the Five Types of MN Assault Cases

Posted on by BThurman

Most assault cases occur when the temperature is between 80 and about 90 degrees. That sounds like a Minnesota summer to me. Heat increases testosterone production, which increases aggression. When the temperature gets much higher than 90, people stay inside, so the assault rate goes down.

In all these cases, the prosecutor must establish guilt beyond a reasonable doubt. Lack of evidence is usually one of the best defenses a Hutchinson criminal lawyer can use. However, sometimes it’s better to settle these cases out of court. Trails are very risky affairs, even if the prosecutor’s evidence is not very good.

Child Abuse

Pretty much all child abuse and neglect issues are very subjective. For example, assume Cindy’s dad consistently lets her stay up late. So, she often falls asleep in school. In some contexts, especially a family law proceeding, Dad’s actions could be considered child endangerment.

That subjectivity extends to Minnesota Statute Section 609.377, which is the state’s main child abuse law. It applies if a parent, guardian, or legal caretaker:

  • Uses cruel discipline or unreasonable force
  • Which is excessive given all the circumstances.

That subjective definition could include just about anything. Corporal punishment is a good example, and as a Hutchinson criminal lawyer as well as a parent, I address this issue a lot. Some parents consider paddling or spanking cruel and excessive; other parents have no problem with it at all.

The alleged infraction, child’s age, and amount of force often control the outcome. There’s a difference between spanking Ben because he ran out into the street and spanking him because he forgot to wash behind his ears. Ben’s age makes a difference as well. A ten-year-old is usually held to a higher standard than a four-year-old. Finally, the number of force matters. Did Ben’s dad leave a red mark or cause a deep bruise?

If all three of these areas favor the defendant, it’s nearly impossible to prove guilt beyond a reasonable doubt. In borderline cases, Hutchinson criminal lawyers often try to plead these cases down to reckless conduct or another lesser-included offense.

Simple Assault

Fifth-degree assault is the most commonly-charged assault case in McLeod County. First time assault is a misdemeanor, subsequent assault is usually a gross misdemeanor, and subsequent assault against the same alleged victim is usually a felony. The elements are:

  • Committing an act with intent to cause fear in another of immediate bodily harm or death; or
  • Intentionally inflicting or attempting to inflict bodily harm upon another.

Note that injury, no matter how slight, is not an element of this offense. Note also that physical contact, no matter how slight, is not an element either. Hutchinson criminal lawyers have an easier time defending non-injury and/or non-contact cases. But prosecutors can and do still obtain convictions in these instances.

Assault and a few other cases, like theft, require lay witness testimony from an alleged victim. Unlike police officers, assault victims are not professional witnesses. Also unlike police officers, alleged victims are not always cooperative. In other cases, alleged victims relocate beyond the court’s jurisdiction, and prosecutors cannot subpoena or locate them.

Some states have lesser assault statutes which are essentially like traffic tickets. Minnesota really has no such law, so a Hutchinson criminal lawyer’s plea bargaining options are a little more limited. However, the aforementioned reckless conduct charge may be available if the prosecutor’s evidence is quite weak.

Domestic Assault

Facially, this charge is pretty much the same as fifth-degree assault. However, domestic violence assault has a number of collateral consequences. For example, persons with domestic assault convictions have a very hard time getting a fair shake in family court, even if the incident occurred years ago and involved a different family. Additionally, many domestic violence victims obtain restraining orders, and these proceedings are quite complex.

An alleged victim cannot “drop” the charges under any circumstances. A person can say s/he does not want to pursue charges, but the prosecutor has the final call. If the prosecutor wants to go forward, the judge could issue a subpoena and force the victim to testify.

The domestic assault law only applies in certain situations, and some of them are very difficult to prove. The protected categories are:

  • Persons related by blood or marriage,
  • Current or former roommates, and
  • People who are involved in a significant romantic relationship.

Common-law marriage usually does not count. Furthermore, a single one night stand does not mean that two people are roommates or involved in a significant romantic relationship.

Especially if the victim is uncooperative, prosecutors are often willing to reduce charges to simple assault. That conviction does not have nearly as many collateral consequences. However, many prosecutors do not reduce charges under any circumstances. They’d rather die with their boots on.

Aggravated Assault

Second-degree assault is also known as assault with a weapon or assault with a deadly weapon. The elements are:

  • Dangerous Weapon: Under Minnesota law, pretty much anything other than a hand is a dangerous weapon. Increasingly, Hutchinson criminal lawyers see cases in which the hand is a dangerous weapon. That’s true in some really bad medical malpractice cases.
  • Substantial Bodily Harm: Essentially, SBH means that you put someone in the hospital and keep them there for at least a day.

607.222 is not quite as serious if only one of the aggravating factors (dangerous weapon or SBH) is present. Again, some prosecutors will plead down aggravated assault cases to simple assault.

Vehicular Assault

Prosecutors can press these charges if the defendant was grossly negligent and caused SBH, or if the defendant was negligent while under the influence of alcohol or another substance and caused SBH.

These cases are sometimes difficult to prove. A witness must place the defendant behind the wheel at the time of the crash. By the time emergency responders arrive, the defendant has usually exited the vehicle. But all bets are off if the defendant admitted driving the car. These statements are usually admissible.

Work with an Experienced Attorney

All five types of assault cases have some valid defenses. For a free consultation with an experienced Hutchinson criminal lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.

How Do Hutchinson Family Law Attorneys Resolve Custody Disputes?

Posted on by BThurman

Custody, visitation, and parenting time issues touch almost every McLeod County household at one time or another. Over half of Minnesota children either live in a single parent household, with a biological parent and a stepparent, or in some other non-traditional arrangement.

Furthermore, most people relocate about eleven times in their adult lifetimes. Any relocation usually upsets the delicate parenting time balance set forth in the divorce decree.

Because of this combination, Hutchinson family law attorneys handle numerous custody and visitation modification actions. Typically, these matters are agreed. After an expensive and protracted divorce action, many parents do not want to go back to court again over modification actions. If the parties at least have an agreement in principle, a Hutchinson family law attorney can hammer out the details and submit the agreement for judicial approval.

But not all modification matters are agreed. If they are contested, they usually go through the following three stages.

Step One: Best Interests of the Children

Any parenting time modification must be in the best interests of the children. There is a presumption that children benefit from consistent and meaningful contact with both parents. If the parenting time division strays significantly from 50-50 to the 80-20 area, a McLeod County family law judge will probably not approve it straightaway.

The plan could still pass judicial muster if the parent requesting modification can overcome the equal division presumption. For example, one parent may develop a substance abuse problem or marry someone with a history of domestic violence.

Additionally, the judge must consider a number of factors. Note that all these factors relate to the best interests of the children, as opposed to the best interests of the parents:

  • Needs of the child,
  • Preference of a child,
  • Any history of domestic abuse,
  • Preference and ability of each parent, and
  • Ability to co-parent.

At the Step One phase, the judge’s conclusions are preliminary. If there is any way that the modification might be in the best interests of the children, the court usually allows the action to go forward into the evidence-gathering and resolution phases. The alternative is to throw the matter out of court, and most judges hesitate to take such drastic action.

Step Two: Social Services Investigation

Assuming the action has some legal merit, most judges order social services investigations. The selection process varies by court and jurisdiction. Some judges just assign a social worker at random, and other judges give a Hutchinson family law attorney some input into the selection process.

That input could be important. For example, many modification actions include Parental Alienation Syndrome allegations. Some parents do things like change schedules at the last minute or say derogatory things about the other parent. These actions are designed to drive an emotional wedge between the children and the other parent.

Most people in the family services area know what PAS is and appreciate its dangers. But that’s not true of all social workers.

During the investigation, the social worker typically interviews the parents and children, examines school report cards and other documentary evidence, and talks to doctors, neighbors, and other people who know about the situation. Then, the social worker submits a report to the judge.

A Hutchinson family law attorney can help you put your best foot forward during this process. Additionally, a lawyer can advocate for you when the judge decides what to do in light of the social services investigation report.

Step Three: Mediation

At this point, if the social worker makes clear recommendations, many modification actions settle out of court. But sometimes, the recommendations are rather murky and could be interpreted in several ways. If that’s the case, the matter often goes to mediation.

A third-party mediation, who is often a retired Hutchinson family law attorney, listens to both sides then tries to engineer a settlement. Since the parties stay in separate rooms for most of the session, there is little emotional drama. As a result, the parties focus on the issues. So, mediation works about 75 percent of the time. If it does not work, the case usually goes to a trial before the judge.

Sometimes, Step Three is actually Step One. As mentioned, many times, the parties agree about relocation or other general issues but disagree on the specifics. Sometimes, a neutral Hutchinson family law attorney-mediator can bring the parties together on the details, so there’s no need to go to court.

Contact Savvy Lawyers

Divorce decrees are never meant to be set in stone, so legal modification is pretty much inevitable. For a free consultation with an experienced Hutchinson family law attorney, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

How Do Hutchinson Criminal Defense Lawyers Deal with Restraining Orders?

Posted on by BThurman

Every year, more than ten million Americans are the victims of domestic violence. The abuse could be physical or non-physical. Moreover, the abuse could also be a sudden explosion of violence or a long series of smaller events. Many of these incidents result in serious or even fatal injuries. Since so much is at stake, it’s important that people who need help get it straightaway.

Generally, McLeod County judges cannot take action without according all sides due process of law. Domestic protective orders are one of the few exceptions. If you need immediate protection, a Hutchinson criminal defense lawyer can make sure you get it.

However, the due process waiver is only temporary. Before a judge takes stronger action, it is important to hear both sides of the story. That’s especially true if there is a parallel family law or divorce proceeding. Very few victims manufacture or inflate domestic violence charges to gain an edge in civil court. But it has happened before, and it will happen again.

Who is Entitled to Protection

Over the last fifty years, the definition of “family” has changed significantly in Minnesota. Most Hutchinson children live in non-traditional households. Minnesota’s domestic violence law recognizes these shifts, so many different individuals are entitled to protection.

  • Common Child: Some people have children together but never marry. In fact, some of these couples never had much of a relationship at all. Nevertheless, violence still sometimes happens in these situations, so protection is available.
  • Current or Former Dating Partners: The above categories are objective. People are either married or they are not. But this category is a bit subjective. Two people need not be engaged to be “dating partners,” but they probably must have gone out more than once or twice.
  • Persons Related by Marriage: Most domestic violence claimants are current spouses, estranged spouses, or former spouses of the alleged abuser. This definition may also encompass in-laws and other non-marital relationships. Common-law marriages have not been legal in Minnesota since 1941, unless the couple was common-law married in another state.
  • Current or Former Roommates: This category is vague as well. One night on a sofa does not make one a roommate. However, there’s no requirement for a written roommate agreement or that a person is listed on a lease.

A number of individuals know they are entitled to protection and they know they need protection. Nevertheless, they do not contact Hutchinson criminal defense lawyers about a possible restraining order. Many of these people assume that the order is just a piece of paper which is almost meaningless.

But that’s not true. If a person obtains a restraining order, the alleged victim can distribute copies of that order to schools, daycares, churches, and other places their children frequent. If these organizations receive notice, they have a legal duty to honor the protective order. Furthermore, the ex parte restraining order is a springboard. Once the alleged victim obtains one, it’s much easier to secure broader and longer-lasting protection in a subsequent hearing.

Types of Restraining Orders

Alleged victims in McLeod County may obtain either an HRO (Harassment Restraining Order) or an OFP (Order For Protection). In general, victims who fear for their physical safety, or the safety of their children, should apply for OFPs. As the name implies, HROs usually prevent stalking and other non-physical forms of abuse.

Minnesota judges are about the only ones in the country who can issue long-term protective orders based on one side’s testimony. The judge will issue a protective order if there is an imminent threat of domestic violence and the applicant needs immediate protection. The judge will either grant a protective order that’s good for up to two years or deny protection and set a hearing. Once the alleged abuser receives notice, that person can also request a hearing.

If the alleged abuser previously violated a protective order, the OFP can be valid for up to fifty years. The alleged abuser can ask the judge to modify or vacate the order later. Normally, a five-year waiting period applies.

At the subsequent hearing, which either party can request, the judge may enter additional orders, such as:

  • Forfeiture of firearms,
  • Payment of support, and
  • Attending parenting, anger management, or other classes.

Generally, HROs offer the same protections. But there are some procedural differences. If the alleged victim cites only one harassment, stalking, or other incident, the alleged victim must also swear that there is an immediate threat of physical violence.

A Hutchinson criminal defense lawyer may also go to civil court and obtain roughly the same protection. The parties have more control over the matter in civil court, and criminal protective orders have more teeth. Many times, at Carlson & Jones, we suggest that alleged victims seek both types of protection.

We are dedicated to the rights of victims, and we also believe that there are usually two sides to every story. A protective order can have dire consequences, both professionally and personally. So, we sometimes represent alleged abusers and make sure they get their day in court.

Work with Assertive Attorneys

Whether you are faced with domestic violence or feel you have been unfairly charged, help is available. For a free consultation with an experienced Hutchinson criminal defense lawyer, contact Carlson & Jones, P.A. AFter-hours visits are available.

 

How Do Hutchinson Family Law Attorneys Modify Divorce Decrees?

Posted on by BThurman

In most civil cases, the final order puts the matter to bed. For example, almost all personal injury settlements include legal waivers. As one of my law professors said, victims only get one trip to the salad bar of justice.

But marriage dissolution resolutions are different. These orders almost always contain ongoing provisions, such as DSOs (Domestic Support Obligations, such as alimony) and child visitation provisions. So, a divorce decree is more a beginning point than an endpoint.

Families change frequently, and orders quickly become outdated. Therefore, most people should modify their divorce decrees at least once every three years. A legal modification with a Hutchinson family law attorney is the best way, and often the only way, to keep the peace. Informal side agreements, no matter how well-intentioned they might be, are always unenforceable.

When Can Hutchinson Family Law Attorneys Modify Divorce Orders?

Frequent modifications are the best way to keep up with constant changes. Even a slight increase or decrease in income can affect DSOs. Similarly, if a family moves just a few miles, the delicate pickup/drop-off balance may be hopelessly thrown off kilter. So, a judge can modify a decree if:

  • Changed circumstances affect
  • The best interests of the children.

Hutchinson family law attorneys must establish both these prongs. Assume Sue wants to move her family closer to her job. The proposed move is definitely in Sue’s best interests, but it may or may not be in the children’s best interest.

Generally, a McLeod County judge can entertain a modification action when the parents agree one is necessary, if the children are in emotional or physical danger, or if at least two years have passed since the most recent order was entered.

Why Should the Judge Modify a Divorce Order?

As mentioned, Hutchinson family law attorneys can use pretty much anything to establish changed circumstances. Many times, the impact on the children is mixed. For example, a promotion at work usually means higher compensation and fewer hours at home. The best interests of the children usually involve a written presumption (children benefit from consistent and meaningful contact with both parents) and an unwritten one (children need consistency and stability).

Most DSO modifications rely on changed circumstances. It’s now easier to win these modification actions. A few years ago, Minnesota’s modification law changed and dropped the substantial change in circumstances requirement. At a minimum, the change must be:

  • Meaningful (any income change under 5 percent is usually not meaningful),
  • Permanent,
  • Unanticipated at the time the prior order was entered, and
  • Voluntary.

A voluntary financial change means that people cannot quit high-paying jobs to reduce their child or spousal support obligations.

Visitation and custod changes usually hing on the best interests of the children. Some factors to consider include:

  • Childrens’ needs,
  • Parental and child preferences,
  • Ability to co-parent, and
  • Parental emotional and physical health.

In 2015, lawmakers added the following presumption to this part of the Revised Code: “The court shall consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child’s needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures.”

How Do Judges Resolve Motions to Modify?

If the parents agree on the modification, and a Hutchinson family law attorney formalizes it, most judges will approve the agreement after only a cursory hearing. Minnesota law has a strong presumption in favor of agreed resolutions. Generally, it’s always best for parents to work these things out between themselves.

If the parents do not agree, the matter will probably go to mediation. A third party, who is usually an unaffiliated Hutchinson family law attorney, works to facilitate a settlement between the parties. Mediated settlements are the next best thing to agreed settlements. Mediation decreases legal expenses, gives the parties more control over the outcome, and increases civility.

If both informal settlement negotiations and mediation fail, which is extremely rare, the final trial usually takes place before a judge without a jury.

Rely on Experienced Lawyers

Most divorce cases never “close.” They just lie dormant for a few years, and then a motion to modify revives them. For a free consultation with an experienced Hutchinson family law attorney, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

Can Hutchinson Criminal Law Attorneys Disprove Intoxication?

Posted on by BThurman

We hear this question a lot. Many people assume that if they fail the field tests and/or have a Blood Alcohol Content above the legal limit, there is no way to beat DUI charges. But that’s imply not true.

As a preliminary matter, criminal defendants need not “disprove” anything. The prosecutor has the burden of proof in criminal cases, and that burden is very high. To prevail at trial, Hutchinson criminal law attorneys need only create reasonable doubt. Minnesota law does not define this term. But generally, proof is beyond a reasonable doubt if it is so overwhelming that the defendant must be guilty.

An attorney can leverage these defenses during trial or during plea bargaining negotiations.

Procedural Questions

Minnesota courts have precise requirements for things like arrests, searches, and the preservation of evidence. If police or prosecutors violate these procedures, a McLeod County judge can throw the case out of court. So, Hutchinson criminal law attorneys pay close attention to the details.

In general, Hutchinson officers must have reasonable suspicion for the stop. The evidentiary standard is very low, and the United States Supreme Court has watered it down even further. But the rule is still in place, and it’s sometimes an issue in DUI cases. 

Many times, especially around the holidays, police departments use Selective Traffic Enforcement Programs to increase arrests. In STEP campaigns, officers sometimes take shortcuts, and they may pull over a motorist even if they only have a hunch that the driver is intoxicated.

DUI checkpoints are the main exception to the reasonable suspicion rule, and these roadblocks are legal in Minnesota. However, these checkpoints must meet specific standards. For example:

  • A supervisor must make all the decisions,
  • The department must publicize the checkpoint,
  • Motorist delay cannot be more than two or three minutes, and
  • Officers must respect individual rights at the checkpoint.

Any violation of these rules, however slight, may invalidate the stop, and therefore invalidate the arrest.

Field Sobriety Tests

If an officer sees signs of intoxication, like erratic driving or bloodshot eyes, the officer next asks the defendant to perfrom FSTs. There are a number of informal tests, like the finger-to-nose test. But these results are usually either inadmissible or only admissible for limited purposes. There are only three approved field sobriety tests, and they are all very subjective.

  • Walk and Turn: This test is also known as the walking-a-straight-line test or the heel-to-toe walk test. The defendant must walk a straight line heel to toe back and forth in each direction. Hutchinson criminal law attorneys often focus on the test conditions. For example, it’s almost impossible to walk an imaginary line heel to toe whether the person is drunk or sober.
  • One-Leg Stand: Like the WAT, and OLS is a divided attention test which measures both physical dexterity and mental acuity. The defendant must stand on one leg without swaying or losing balance. This test has some flaws as well. For example, it’s very difficult for anyone with any mobility impairment to pass this test.
  • Horizontal Gaze Nystagmus: Unlike the previous two, the HGN test is a medical test. If the pupil moves involuntarily at certain angles, the subject probably has nystagmus. This condition is also known as lazy eye. Alcohol does indeed cause nystagmus, but it’s not the only cause. In fact, it’s not even the leading cause. Childhood brain injuries and genetic conditions cause most nystagmus cases.

If the prosecutor only needs the FST results to establish probable cause, the prosecutor is usually okay. But if the state must rely on the FSTs to provide proof beyond a reasonable doubt, Hutchinson criminal law attorneys may be able to beat the DUI charges.

Chemical Tests

Admittedly, it’s very difficult to challenge chemical test results. In some jurisdictions, the conviction rate in these cases is over 85 percent. But nothing is impossible for an aggressive Hutchinson criminal law attorney. ANd that includes challenging chemical test results.

Today’s Breathalyzer has many bells and whistles. But fundamentally, it’s the same thing as the 1950s drunk-o-meter. So, Breathalyzers often have flaws, such as:

  • Mouth Alcohol: If the defendant burped, vomited, or belched in the half hour before taking the test, the mouth alcohol particles may skew the test results. Minnesota has a very lax waiting period law. So, Hutchinson criminal law attorneys can argue that the defendant might have burped and no one saw it.
  • Acetone Levels: Everyone has some acetone particles in their bodies, and the Breathalyzer registers these particles as ethanol. Normally, that’s not a big deal. But diabetics, smokers, and some other people all have abnormally high acetone levels.
  • Unabsorbed Alcohol: The body absorbs most alcohol through the liver instead of the stomach, and that’s a much slower process. So, if the defendant had been drinking in the previous hour or so, that alcohol has not yet entered the bloodstream. So, the Breathalyzer’s BAC estimate will be artificially high.

To drive home these flaws with the jury, many Hutchinson criminal law attorneys partner with chemists, chemistry graduate students, or other expert witnesses.

In blood test cases, the prosecutor must produce the sample in court. Sometimes, there are chain of custody issues. This sample must travel from the defendant’s body to a lab to a holding area and to the courthouse. If any period is unaccounted for, the evidence could be tainted.

Additionally, Hutchinson criminal law attorneys may order retests from independent labs. Many times, these independent results are different from the one obtained in a police lab.

Rely on Experienced Lawyers

There are several different ways to beat a DUI case. For a free consultation with experienced Hutchinson criminal law attorneys, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

Hutchinson Family Law Attorneys and Property Classification

Posted on by BThurman

Minnesota family law mandates a property division which is not an unfair financial burden on either party. Divorce almost always constitutes a serious financial burden, but neither the husband nor the wife can carry too much of the load. Unless the parties have a premarital agreement, the classification and division process can be rather long and cumbersome.

A relatively even distribution of marital assets and debts is complex enough. Many assets, such as retirement accounts and houses, have emotional values in addition to their financial values. If the parties have been married for more than a few years, the division is even more intricate. In fact, Hutchinson family law attorneys must address a threshold issue before they even begin splitting up the marital estate.

Is the Property Distribution Always 50-50?

There is a strong presumption in favor of a 50-50 division. However, it’s only a presumption. To overcome it, the challenging party must normally present substantial evidence of inequity.

Unequal property distribution questions are ripe for mediation. Indeed, many McLeod County judges order parties to complete mediation before they set the case for trial. At mediation, the parties exchange settlement offers and counter-offers until they reach an agreed resolution.

Classifying Marital Property in a Minnesota Divorce

Equitable divisions are quite challenging in many cases. Long marriages often involve ownership issues, specifically with regard to commingled property. Assume Wife bought a new car the day before her wedding. Over the course of the marriage, she pays a total of $45,000 on the vehicle note ($750 a month for sixty months). She uses money from her paycheck, which is marital property, to pay the car loan, which is a non-marital debt.

If she and her husband divorce, Husband may be entitled to $22,500. That sum represents his share of the marital funds Wife spent in satisfaction of her non-marital debt. The actual division may vary based on a number of factors. Some of these factors are outlined below.

Resolving commingled property issues with regard to debts is often a fairly straightforward process. It may just be a matter of doing the math. However, if the comingling involved a revenue-producing asset, things are much more complex.

Now assume Wife purchased a rental house while she was single. Husband received a wedding gift from his parents, and he uses the gift to find improvements at the rent house. If the couple divorces, one of two things could happen:

  • If the gift was a small one which funded things like new carpet or new landscaping, Husband’s gift might have little or no effect on property ownership. The house, and all income it produced, would still belong exclusively to Wife.
  • On the other hand, if Husband’s large cash infusion funded major improvements, like foundation work, a McLeod County family law judge could declare that Husband’s gift transmuted the property from Wife’s nonmarital asset to a marital asset. If that’s the case, Husband would be entitled to half the house and also half the income from the house, beginning at the transmutation date. Husband’s argument for transmutation is stronger if the house was uninhabitable prior to the improvements.

In these situations, Hutchinson family law attorneys often partner with financial professionals who trace payments and perform a forensic accounting.

Hutchinson Family Law Attorneys and the Property Division Process

After clarifying ownership interests, the real work begins. The property division process usually involves the factors set forth in Minnesota law. Technically, all these factors have roughly equal weight. But pragmatically, some are more important than others.

  • Agreements Between the Parties: Minnesota family law judges almost always approve premarital agreements if they were voluntary and not entirely one-sided. So, especially with regards to complex issues like the aforementioned rent house, a premarital agreement can be the stitch in time that saves nine.
  • Noneconomic Contributions to the Marriage: Some relationships feature a “caregiver” spouse and a “breadwinner” spouse. If the caregiver spouse forsook carrer advancement to look after multiple children, the caregiver spouse may be entitled to a disproportionate share of marital property. In the alternative, the caregiver might receive additional alimony payments.
  • Future Economic Prospects: In general, young and healthy people can earn more money than old and sickly people. Therefore, if there is a significant age and health discrepancy between the spouses, this factor might be a consideration.

Almost all property divisions are subject to modification later. For example, if Husband remarried and began receiving substantial financial support from his new wife, a Hutchinson family law attorney could convince a court to reconsider the rent house ownership question.

Count on Experienced Lawyers

Property classification and division is often the most time-consuming portion of a divorce case. For a freeconsultationn with an experienced Hutchinson family law attorney, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

Love, Divorce, Baseball, and Hutchinson Family Law Attorneys

Posted on by BThurman

Over the last six seasons, the Los Angeles Dodgers have won six division titles and two National League pennants. This recent success comes on the heels of almost two decades of futility. Between 1989 and 2007, the team only had three division titles and only won one playoff game. In the midst of all this losing, things got even worse.

After about ten years of losing, fan interest began to wane and the Dodgers fell on hard financial times. Supposedly, when the team filed bankruptcy in 2002, co-owners Frank and Jamie McCourt were unable to make payroll.

What does all this have to do with Hutchinson family law attorneys? We’re just getting to that. While the team was in bankruptcy court, its owners were in divorce court. As part of their divorce, they signed a voluntary property division agreement, which is similar to a premarital agreement. Since the team was essentially worthless at the time, Jamie gave up her half of the team in exchange for about $180 million in cash and property. Jamie was very unhappy a few years later when her ex-husband sold the team for over $2 billion.

Before we see what the court decided, let’s break down premarital agreements in both Minnesota and California. The law is roughly the same in both jurisdictions.

What Can Premarital Agreements Cover?

Premarital agreements are a little like insurance policies. No one wants or expects the house to burn down, but most owners get property insurance anyway. Similarly, no couple wants or expects to get divorced, but a premarital agreement is usually a good idea, especially if one spouse has been married before.

Many premarital agreements cover financial matters. That can include both classification and division matters. Assume Wife uses a wedding gift from her parents to fix up a rental house that Husband owned before the marriage. A McLeod County judge could declare that the house was marital property. In that case, Wife could be entitled to half the gift and half all prior and future rents. These pacts may also limit, or even eliminate, spousal support payments.

Financially, premarital agreements can cover pretty much anything except child support matters. This area depends on the best interests of the children and not on the best interests of the parents.

Many spouses who have been married before want to make provisions for children from prior marriages. That’s especially true if the spouse has a family business or significant estate. That person may not want these children to be left out of succession and inheritance matters. But unless a valid premarital agreement is in place, that’s probably what will happen.

How Can Hutchinson Family Law Attorneys Break Premarital Agreements?

Minnesota family law strongly favors spousal agreements. Divorces are a good example. If the parties agree on all matters, most McLeod County judges will approve the settlement after only a cursory hearing. So, it’s very difficult for Hutchinson family law attorneys to break premarital agreements. However, these pacts are not set in stone. In Minnesota, the grounds for overturning a premarital agreement are:

  • Lack of Representation: Voluntary divorce settlements are usually valid even if only one spouse had a lawyer. But the same is not true of premarital agreements. These pacts are invalid as a matter of law if each spouse did not have separate representation.
  • Complete Disclosure: All spouses must put all their cards on the table. If a spouse withholds important information, the agreement is probably no good. Challenging spouses who use this ground must normally also establish that the information was unavailable elsewhere.
  • Unconscionable: There is a difference between “uneven” and “unconscionable.” A 60-40 split, and maybe even a 70-30 split, is uneven but not grossly one-sided. Significantly for the Jamie McCourts of the world, the agreement must have been unconscionable when it was made. This issue comes up quite often with regard to stock options. These items may be worthless one day and incredibly valuable the next day.

Note that the challenging spouse need not establish fruadulent or malicious intent. But the presumption in favor of premarital agreements is quite strong. So, these challenges are much easier to win if a spouse has such evidence.

A Happy Ending(?) for Frank and Jamie

Jamie argued that the property agreement was unconscionable. After all, a resolution that leaves a person about $900 million short of a 50-50 split is blatantly one-sided. But the agreement was not unconscionable when it was made. “Jamie simply chose the security of a guaranteed $131 million payment, plus more than $50 million in real and personal property, over the uncertainty and risk presented by the valuation and sale of the Dodger assets,” the court stated.

So, Jamie lost her appeal and even had to pay her ex-husband’s attorneys’ fees. However, the prominent Republican fundraiser later became the U.S. Ambassador to Monaco and France. That’s not an extra $700 million and change in the bank, but it is a rather nice consolation prize.

Work with Experienced Lawyers

People who are tying the knot again should seriously consider premarital agreements. For a free consultation with an experienced Hutchinson family law attorney, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

 

Hutchinson Family Law and Alimony Payments

Posted on by BThurman

Spousal support is one of the most controversial parts of a Hutchinson divorce. There are strong feelings on both sides. Many people feel that alimony is basically a financial penalty. Others counter that most divorced women would perpetually live in poverty without these payments.

Many states have substantially overhauled their spousal support laws. Nearby Illinois redid its family laws in 2016. About that same time, Minnesota lawmakers tinkered with reform. A bill making it easier to modify spousal support passed 112-9 in the House and 45-12 in the Senate.

Advocates hoped that this change would create momentum for further change. But for better or for worse, that did not happen. So, Hutchinson family law cases still involve subjective spousal support laws, as outlined below.

Duration of Spousal Support Payments

In a nutshell, McLeod County judges may award temporary alimony and/or long-term alimony.

Typically, about two weeks after a spouse files a divorce petition, a Hutchinson family law judge will hold a temporary hearing. Temporary alimony is usually an issue at this hearing. These payments help the oblige spouse meet immediate expenses like:

  • Attorneys’ fees,
  • Rental/Utility deposits, and
  • Daycare expenses.

If the requesting spouse is the respondent, the judge just needs proof of financial need, and the judge usually enters a support order. If the requesting spouse is the petitioner, the inquiry could be a bit more complex. If there is evidence that the requesting spouse contacted an attorney several months before filing the petition, a Hutchinson family law attorney could argue that s/he should have been saving money. Therefore, it is unfair to make the other spouse financially subsidize the failure to plan.

Temporary alimony terminates when the case ends. Many divorce orders include provisions for short-term alimony. These payments are designed to help the requesting spouse become economically self-sufficient. The money could be for things like:

  • School tuition, or
  • An additional income stream to bridge the gap between married and single life.

Short-term alimony rarely lasts for more than three or five years. The length is usually based on the amount of time the requesting spouse needs to obtain economic self-sufficiency.

Occasionally, a Hutchinson family law judge will order long-term alimony. These payments are appropriate if the marriage lasted at least ten years or the requesting spouse cannot achieve economic self-sufficiency. For example, the spouse might have a physical, mental, or other disability. Or, the spouse may have custody of a severely disabled child.

Hutchinson Family Law and Amount of Alimony Payments

Determining the amount of payments is also a rather subjective process. In child support cases, there are set guidelines which are presumed reasonable and based on a limited number of factors. But with regard to spousal support, Hutchinson family law judges may set almost any amount after considering a number of factors, including:

  • Requesting Spouse’s Financial Need: As mentioned, some spouses need help paying the bills for a while after a divorce. For example, Wife may need to work at a low-paying job until she re-establishes herself in the workforce.
  • Paying Spouse’s Financial Resources: Ability to pay is a factor. Under Minnesota law, the divorce cannot be an unfair financial burden for either party.
  • Agreements Between the Parties: Many spouses have premarital agreements that set caps on spousal support payments. As long as the contract is not blatantly one-sided and both spouses had an equal voice in the agreement, a Hutchinson family law judge will almost always uphold it.
  • Tax Consequences: This factor will change significantly in January 2019. The IRS will end the tax deduction for alimony payments and no longer require recipient spouses to report the income. No one is sure whether this change will help divorced women, help divorced men, or not help anyone.
  • Standard of Living During the Marriage: Divorce almost always reduces a family’s standard of living. Statistically, this reduction is more pronounced among divorced women. So, this factor weighs in favor of higher spousal support payments.
  • Current and Future Economic Status: People who get higher marital property shares need less alimony. The same thing goes for people with large awards of nonmarital property. In terms of future income, no Hutchinson family law judge has a crystal ball. However, as a general rule, young, healthy, and/or well-educated people usually earn more than older, sickly, and/or poorly-educated people.
  • Noneconomic Contributions to the Marriage: If the requesting spouse put a career on hold to become the primary caregiver, the “homemaker factor” may be quite significant. In other cases, not so much.

Both the amount and duration of payments may be modified later based on changed financial circumstances. Income and status changes are the two big ones. Retirement may be a basis for modification, unless the paying spouse retired to avoid making alimony payments. The aforementioned 2016 change made it easier to modify payments based on cohabitation.

Reach Out to a Dedicated Lawyer

Spousal support is an important part of most divorce cases. For a free consultation with an experienced Hutchinson family law attorney, contact Carlson & Jones, P.A. After-hours visits are available.

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