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Should I Record My Phone Calls During My Divorce or Custody Case?

Written By: GHL Law Firm | Published On: 29th December 2009 | Category: Uncategorized | RSS Feed

Minnesota law says it is legal for a person to record a wire, oral or electronic communication if that person is a party to the communication, or if one of the parties has consented to the recording — so long as no criminal or tortious intent accompanies the recording. So, even though it is “technically” legal does recording a conversation help your divorce or custody case? Should a lawyer advise a person to record a telephone call? The following article may shed some light on the subject:

Directing the Tape-Recording of Phone Conversations

by
Candice M. Hojan, Senior Assistant Director
Minnesota Office of Lawyers Professional Responsibility

Reprinted from Minnesota Lawyer (October 2, 2000)

In 1996, the Minnesota Lawyers Professional Responsibility Board (LPRB) adopted Opinion 18, which prohibits an attorney’s tape-recording of telephone conversations without the knowledge of the other party to the conversation. LPRB Opinion 18 provided exceptions to the broadly stated rule, and left many questions, which often fall to the Office of Lawyers Professional Responsibility advisory opinion service to answer.

One question that has been asked about Opinion 18 is whether an attorney can advise a divorce client to tape-record a child’s phone conversations with the adverse party. Perhaps the mother has temporary custody, but suspects that the father is trying to undermine her authority with the child.

Perhaps the noncustodial parent makes disclosures to the child and tells the child not to tell the custodial parent. Perhaps the safety and security of the child truly is at stake. Many arguments are made in support of surreptitious taping. However, more often than not, one party is attempting to gain an advantage by catching the other side unaware and in a compromised position.

Arizona has recently provided an answer to the question of whether an attorney may recommend that the client record telephone conversations between a minor child and the other parent and has opined that the attorney should not advise the divorce client to tape-record the child’s phone calls with the other party. (Arizona State Bar Comm. on the Rules of Professional Conduct, Op. 2000-04, 3/00.) Would the Minnesota disciplinary system give the same answer? LPRB Opinion 18 reads as follows:

It is professional misconduct for a lawyer, in connection with the lawyer’s professional activities, to record any conversation without the knowledge of all parties to the conversation, provided as follows:

1. This opinion does not prohibit a lawyer from recording a threat to engage in criminal conduct;

2. This opinion does not prohibit a lawyer engaged in the prosecution or defense of a criminal matter from recording a conversation without the knowledge of all parties to the conversation;

3. This opinion does not prohibit a government lawyer charged with civil law enforcement authority from making or directing others to make a recording of a conversation without the knowledge of all parties to the conversation;

4. This opinion does not prohibit a lawyer from giving legal advice about the legality of recording a conversation.

In contrast, note that Minnesota statutory law allows tape-recording of conversations with consent of one party to the conversation.

Arizona, prior to March 2000, followed Ariz. Op. 95-03, holding that it is unethical conduct for counsel to surreptitiously record opposing counsel and Ariz. Op. 75-13, holding that it is improper for a lawyer to surreptitiously record any conversation between the lawyer and another person, except in limited circumstances, or between third persons. The exceptions in Ariz. Op. 75-13 are the same as those set out in LPRB Opinion 18. Arizona has adopted the Rules of Professional Conduct, as has Minnesota. In addition, Arizona law allowed for the recording of conversations with consent of one party. Thus, Arizona and Minnesota used the same underlying ethics rules and opinions and had the same statutory law concerning tape-recording of conversations prior to March 2000.

Ariz. Op. 2000-04 considered the following scenario. The client is a divorced parent. In good faith, your client (parent #1) believes that during telephone conversations between the child and parent #2, parent #2 is undermining the child’s relationship with parent #1, your client. After the conversations, the child demonstrates severe emotional upset, often lasting for hours. Note that the factual scenario is not dependent upon who is the custodial parent. Note, also, that the consent of the child, or at least the consent of the client-parent, is presumed, so that the tape-recording is not in violation of state or federal law.

The Arizona opinion holds that directing such tape-recording violates Rules 8.4(a) and (c), which prohibit an attorney violating the rules through the acts of another and which prohibit conduct involving fraud, deceit or misrepresentation. The opinion also notes that the whole point of not disclosing the recording of the conversation is to capture the other party on tape making a statement that would likely not otherwise be made if the taping were revealed. As to the uninformed party, the taping is deceitful.

As a result, although such recording may not be illegal, the opinion holds it is unethical. An attorney’s advice to a client to tape-record conversations between the other parent and a child in which only one of the parties to the conversation is aware of being recorded violates Arizona’s ethics rules.

The Minnesota Lawyers Professional Responsibility Board has not issued an opinion on this factual scenario. To date, the Director’s Office has not sought public or private discipline on similar facts. However, in telephone advisory opinions the advice given by the office comports with the recent Arizona opinion: it may be legal, but it’s not ethical.

So, the bottom line is that recording conversations is not technically illegal but the Judge will likely not want to listen to the tape and may be suspicious as to where the recording came from. Emails, voicemails and text messages are another story. Those types of communications are seen and reprinted quite often in family law matters. If you have a question about whether you should record conversations in divorce or custody proceedings, please contact the attorneys at Germscheid, Heimerl & Lammers today.

How is the Divorce Process Started in Minnesota?

A divorce action is started when one party, the “Petitioner”, drafts or has an attorney draft a Summons and Petition. The Summons and Petition set out what the main issues will be in the case, and list pertinent information, such as addresses, whether there are minor children, and any real estate owned by the parties and affected by the action. The Summons and Petition are then personally served on the other party, known as the “Respondent.” This means that they are handed directly to that person by another adult individual.

If the parties have discussed divorce and the non-initiating party is willing, they may avoid personal service by signing what is known as an acceptance or acknowledgement of service. If this is done, the papers can be given to the Respondent or even delivered by mail. The Respondent signs a form stating that they acknowledge that they were served and that they understand they only have 30 days to answer the Petition.

An acknowledgment of service is a good alternative for individuals who do not want a process server coming to their home or work. It is also used often when the parties have discussed the coming divorce action and they have discussed settlement terms already. This takes the extra step of personal service out and saves the additional expense for the Petitioner.

The next step in the divorce process depends partly on how likely it is that the parties will reach an agreement and partly on what county the parties live in. Some counties have procedures built in to the process that divert the parties to some form of mediation to try to settle the matter. In other counties, it could be months before any court date is set. However, if the parties are willing to negotiate, the settlement process can start immediately.

Exchanging Information in a Divorce: The Discovery Process

Written By: Amanda Maenner | Published On: 17th December 2009 | Category: Collaborative Divorce, Contested Divorce, Uncontested Divorce | RSS Feed

When parties are going through the divorce process, the question often arises of how you can be sure that the other side is being honest and not hiding information or assets from you. The rules of procedure allow for something called discovery in order for each side to know what the other side has. Most of the time in a divorce, the parties complete discovery informally by exchanging documents. However, there are formal methods available for attorneys and parties to use.

There are multiple methods of discovery. The most commonly used in the divorce process are interrogatories and requests for production of documents. Interrogatories allow each side to ask questions that require more in depth answers. For example, if a party is making a claim for spousal maintenance, you can ask questions about their work history, educational background, and plans for the future.

Requests for production of documents allow the two sides to exchange any documents that will be important in the divorce settlement. Often this includes bank statements, tax returns, other proof of income, and medical records, to name a few.

Parties are also able to do requests for admissions, where you give a statement and the party is required to affirm or deny it.

Less common in divorces is the use of depositions, where the parties undergo questioning from the opposing side, under oath and on the record. Both parties are present for depositions and a court reporter creates a transcript from the testimony.

All forms of discovery are technically under oath, and the other party and attorney have an obligation to make a full, honest disclosure. There are remedies in the system if it is later discovered that they were keeping information from you. Discovery is an important tool to use in order to make sure both sides are making informed decisions in the divorce.

Divorce: Who Gets the House?

Written By: Amanda Maenner | Published On: 14th December 2009 | Category: Contested Divorce, No Fault Divorce, Property Division | RSS Feed

Often at the time of divorce, both parties want to stay in the marital home. What happens then? How can you force one party to leave?

If the home was purchased during the marriage, it is marital property. Likewise, if it was purchased prior to the marriage but the parties resided in it, there is a good chance that there is some equity attributable to the marriage in it. Both parties have a valid claim to the home and are entitled to live there until the court says otherwise.

If you do not agree with your spouse at the time of separation regarding who will stay and who will leave, you will need to get the court involved. Only a court order can determine who is awarded the home. This can be done at the end of the divorce process, or if needed earlier, through what is called “temporary relief”. Temporary relief gives the parties relief pending any final resolution of the issues. One party would bring a motion before the court seeking occupancy of the home, and the court would determine which party should stay. This party most likely will be the party awarded the home at the time of the final divorce.

The court will look at both parties and determine who it finds should stay in the home. Sometimes this is straightforward; for example, if one party has been the primary caretaker for the parties’ children and does not have anywhere else to move, the court will most likely award them occupancy of the home. However, if one party is not able to afford the home and has no reason to remain in it, the court may not award them the property. As with any other issue, this is considered on a case-by-case basis.

What Happens When My Spouse Doesn't Want a Divorce in Minnesota and I Do?

Written By: Amanda Maenner | Published On: 3rd December 2009 | Category: Alimony, Child Custody, Child Support, No Fault Divorce, Uncontested Divorce | RSS Feed

When one party wants to get divorced, there is no way to stop the process from happening. The party choosing to begin the divorce process (the “Petitioner”) starts by having two documents personally handed to the other party (the “Respondent”): the Summons and the Petition. The Petition sets out the basic facts of the marriage and the parties. The Summons has restraining provisions in it, meaning things have to stay basically the same through the divorce process, and gives a 30-day time limit to respond to the paperwork.

If the Respondent misses the 30-day time limit to answer, the Petitioner is able to go back to the court, stating that the Respondent is in “default” and have the divorce processed anyway. You may or may not have to make a court appearance, based on your specific circumstances. Not all issues are always able to be resolved with a default, however. if you have property out of state, or children out of state, you should consult with an attorney. But the bottom line is not both parties need to participate in the process in order for the court to grant a divorce.

If you have been served with divorce papers, even if you do not want a divorce, it is in your best interest to respond within the 30-day time frame. If you miss the deadline and the court enters the divorce without you having a say, it is very difficult to reopen the case later on. If you have questions about what your rights are in the divorce process, contact a family law attorney today. At Germscheid, Heimerl & Lammers, we offer free initial consultations. Call us today to discuss your case.

How Parents Can Communicate When Going Through a Divorce

Written By: Amanda Maenner | Published On: 30th November 2009 | Category: Child Custody, Contested Divorce | RSS Feed

During a divorce and sometimes after the divorce is done, the parties often have a hard time communicating with each other. There are so many emotions that prevent the parties from being able to work together, which is necessary when you have children.

When parties have trouble communicating, they sometimes use the attorneys to do the communicating for them. This can greatly increase legal costs. Also, it gives the parties a false sense of security because once the case is done the parties are going to have to find a way to talk again in order to co-parent their children. One solution that is used now is Our Family Wizard.

Our Family Wizard is a tool that is sometimes used by the court in more contentious cases to streamline communications between the parties and keep them focused on the children. Each parent is given a login, and they are able to post communications to each other about events, parenting time, and other issues related to the children. If necessary, inappropriate posts may be used in the divorce proceedings and may even affect parenting time. The parties each pay a small cost to use this service, and they are able to continue using it after the court’s involvement is over.

When the parties have such a difficult time communicating, it is a good idea to do all communications in writing. Our Family Wizard is just one tool that parties may use to communicate. Programs like Our Family Wizard or even just writing emails allows the parties to think about what they are saying and remove any unnecessary emotion from their communications. They are able to edit the communication and rebuild trust more than they might if they are communicating in person or over the phone.

Communicating in writing also keeps the children out of the middle. This is one of the most important things that parents need to do, but often is forgotten about. When parents are not able to have a civil conversation with each other, there is a good chance that at least some of the time the children are going to overhear the arguments. This puts unnecessary stress on the children already in the middle of the divorce.

Standby Custodial Designations: A Tool to Use with Estate Planning

Written By: Amanda Maenner | Published On: 25th November 2009 | Category: Child Custody, Estate | RSS Feed

Parties to a divorce with children, or even single parents with children, usually want to make provisions for what will happen to their child if they were to die. An individual is always able to designate who they would like to be the child’s guardian in their will or other similar documents. However, Minnesota statutes provide another tool to accomplish this.

Minnesota Statute § 257B provides for an agreement known as a Standby Custody Designation. This Designation allows a parent to name a specific individual to be a temporary custodian in case something were to happen to the parent where they were unable to act in their role as a parent. The parent is able to put specific triggering events, such as death, where the Designation would take effect.

If both parents are involved in the child’s life, one parent may not use the designation to deprive the other parent of their rights. It is not appropriate to use a Designation where the other parent’s rights have not been terminated, their whereabouts are known, and where they are iwlling and able to take over the daily custodial role in the child’s life. However, if both parents agree to the individual designated and agree that that individual would take over the child’s care upon the triggering event, then both parents are able to sign the designation.

The Designation is filed with the court, and upon approval, it is effective at the time of the triggering event. No further hearing will be necessary.

Holidays for Divorcing Families in Minnesota: Who Gets the Kids?

Written By: Amanda Maenner | Published On: 23rd November 2009 | Category: Child Custody, Collaborative Divorce, Contested Divorce, Divorce Mediation, No Fault Divorce | RSS Feed

One issue every divorcing family with children needs to deal with is the change in the holiday schedule. Holidays are generally a time, sometimes the only time, that the children spend time with their extended family and everyone gets together. There is often travel involved, if families have moved apart from each other over time. Holidays in divorcing families can obviously be a trying time.

First, the parties need to figure out when holiday plans overlap who gets to celebrate with the children. It is easy to work out for some special events, such as a birthday, where possibly the child could spend half the day with each parent or there could be celebrations on different days. But what happens when both parents want the child for a specific time, such as Christmas morning?

In final divorce documents, the parties agree to or the court determines a holiday schedule. A common schedule would be where the parents alternate holidays every other year. That way, both mom and dad are able to maintain a tradition with the children and the children are able to spend time with extended family on both sides. This, of course, is something that is able to be worked out by the parents. If a family has different traditions, a holiday schedule is able to incorporate that. For example, if mom wants to bring the children up north to see her family the first week of winter break, but dad likes to take a vacation with the children the second week of winter break, the parties are able to put those specific terms into an agreement for the court to sign off on. The parties are always able to agree on things outside of court, but it is only binding and really enforceable without going back to court if the court incorporates the terms into a court order.

New Lending Guidelines and How it Impacts Divorcing Individuals in Minnesota

Written By: Amanda Maenner | Published On: 18th November 2009 | Category: Contested Divorce, No Fault Divorce, Property Division, Uncontested Divorce | RSS Feed

Fannie Mae and Freddie Mac own the majority of the mortgages in the United States. Recently, their guidelines have changed in ways that impact family law.

Mortgage banker Mitch Irwin specializes in residential mortgages for divorced or divorcing individuals. He recently presented changes in Fannie Mae and Freddie Mac’s policies that affect individuals that have recently or are currently going through a divorce to a group of family law attorneys . For example, in order to use income received from child support to qualify for a mortgage or refinance an existing mortgage, you must be able to show 12 months of receipt of consistent, on-time payments, and you also must show that those payments will continue for a minimum of three years. This policy has an effect on single parents; for example, you would not be able to use the income to qualify if your child is currently 16 years old.

There are other changes to the guidelines including but not limited to issues surrounding spousal maintenance payments, a party returning to the workforce, and when homes have been listed for sale recently but have not actually sold. This isn’t to say that if you don’t fall within the guidelines you will not be able to get a mortgage at all, however. There are smaller lenders that do not follow the same guidelines that the bigger companies do, and they may be more willing to work with you to find a solution.

It is important to meet with an attorney and a mortgage banker to figure out how these changes affect your goals in a divorce, and to modify what you have been doing to make sure you will qualify for a mortgage when you need one.

Protective Orders: Consequences of Stipulations

Written By: Amanda Maenner | Published On: 13th November 2009 | Category: Domestic Abuse | RSS Feed

Orders for Protection (OFPs) and Harassment Restraining Orders (HROs) are the legal tools available to individuals to protect themselves from the actions of others. OFPs are used to protect individuals who are in fear of bodily harm from another person. OFPs are covered under Minnesota Statute § 518B, the Domestic Abuse Act. It covers individuals who have a familial relationship, which is defined as one of the following: spouses and former spouses; parents and children; persons related by blood; persons who are presently residing together or who have resided together in the past; persons who have a child in common regardless of whether they have been married or have lived together at any time; a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and persons involved in a significant romantic or sexual relationship. HROs may be obtained against anyone, regardless of their relationship.

OFPs are often obtained without the assistance of an attorney because there are volunteers who assist in putting together the paperwork needed. Often, when an individual goes to the hearing for an OFP, the parties settle the issue by agreeing to have an OFP against them (or mutually between the parties) in order to avoid having a hearing and testimony being taken. Since the parties are not often represented by counsel, they do not consult with an attorney regarding the effects agreeing to an OFP may have on them. The practice of agreeing to a mutual OFP is generally not the best option for the victim of abuse, however. The OFP may restrict potential employment opportunities; may have negative consequences when trying to obtain housing; and will remain on the individual’s record for other background checks.

A fact sheet describing the HRO and OFP process in more detail may be found here. This fact sheet goes into more detail about the procedure for obtaining both orders and what some negative consequences may be from a victim stipulating to a mutual order.

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