Practice Areas

Personal Injury FAQs

Frequently Asked Questions about Motor Vehicle Accidents

Frequently Asked Questions about Bankruptcy

Frequently Asked Questions about Family Law

What is the difference between an agency adoption and an independent adoption?

In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.

Each type of adoption process has advantages and disadvantages. Using an agency can be beneficial because agencies are familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.

Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know each other. Adoptive parents may be able to circumvent an agency's selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.

Under what circumstances will the court award alimony or spousal support?

The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.

Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient.

How is the amount of child support calculated?

Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary from state to state, but are all based on the parents' incomes, expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. The purpose of guidelines is to aid the judge in determining child support amounts. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.

Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including

The child's standard of living before the parents' separation or divorce
The paying parent's ability to pay
The custodial parent's needs and income
The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)

Once a court issues a child support order, can the amount of support that is paid be changed?

The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.

When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent's income through a remarriage, a job change or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.

How is child support collected if the person responsible for paying it moves to another state?

Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.

Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child's home-state court may be stuck with the reduced amount.

Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer's new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state's court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer's credit report.

What are parents' obligations to their children?

Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing and shelter. This duty usually terminates when the child is emancipated, when the child graduates from high school, when the child enters the military or when the child marries, but the support obligation can extend beyond that point if the child is unable to support him or herself. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are laws specifying the amount of financial support the non-custodial parent must provide.

How does a court decide which parent will get custody of a child?

When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child's best interests, the court may consider may factors, including

The child's age
The child's gender
The child's physical and mental health
The parents' physical and mental health
The parents' lifestyles
Any history of abuse
The emotional bonds between the parent and the child
The parent's ability to give the child guidance
The parent's ability to provide the basic necessities, such as food, shelter, clothing and medical care
The child's routines, including home, school, community and religious
The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
If the child is above a certain age, the child's preference
Who has been the child's primary caretaker?

What is the legal divorce process like?

Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.

One spouse contacts a lawyer, who prepares a complaint setting forth the reasons why for the divorce.
The complaint is filed with the court and served on the other spouse, together with a summons that requires the spouse's response.
The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must express the relief that the answering spouse requests.
The parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.
If a settlement is reached, the agreement is submitted to the court.
If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
At trial, the attorneys present the evidence and arguments for both sides; the judge decides the issues and grants the divorce.
Either or both parties can appeal the judge's decision to a higher court.

What kinds of assets are divided in a divorce?

The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.

The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party's lawyer may help with this issue through discovery, During discovery the parties' attorneys' trade documents that disclose each party's income, assets and liabilities. In addition, each spouse is usually deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed, such as employers, bankers or business partners.

What terms should be included in a separation agreement?

A separation agreement may be advisable when the parties have very different financial situations, such as when one spouse is the wage earner and the other is a homemaker. A formal separation agreement can help ensure that all family members' needs will be met.

The terms of such separation agreements vary, but the following items are usually addressed:

The spouses' right to live separately
Custody of the children
A visitation schedule
Child support
Alimony or spousal support
The children's expenses (medical, dental, educational and recreational)
Property and debt division
Insurance (medical, dental and life)
Income taxes

Learn More: Family Law

The laws relating to families have changed in past decades as judges and legislators have reconsidered and revised the legal issues involved in divorce, child custody, child support, domestic violence and other family law matters. Family law has become entangled in national debates over family structure, gender bias and morality. Few legal areas are as emotionally charged as family law and even with previous changes, family law remains a controversial and ever-changing area of law, which will continue to evolve as families and society evolve.

The division of marital property has also changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse's contributions to the growth of marital property. Along the same lines, homemaker spouses are not considered as dependent as they once were, and as a result, alimony is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-supporting.

Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting also presents custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children's rights and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.

Another major change in family law in recent years is the recognition that many family disputes can be resolved through alternative dispute methods, such as mediation, as opposed to the traditional litigation process. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation in family law cases, which can save time and money and help maintain relationships.

How do I know if I have a personal injury case?

First, you must have suffered an injury to your person or property. Second, you should consider whether your injury was someone else's fault. It is not always necessary to have a physical injury to bring a personal injury lawsuit. Some personal injury claims could be based on a variety of nonphysical losses and harms. In the case of an assault, for example, you do not need to show that a person's action caused you actual physical harm, but only that you expected some harm to come to you. You also may have a case if someone has attacked your reputation, invaded your privacy, or inflicted emotional distress upon you.

How soon after I am injured do I have to file a lawsuit?

Every state has certain time limits, called "statutes of limitations," which govern the amount of time you have to file a personal injury lawsuit. In some states, you may have as little as one year to file a lawsuit arising out of an automobile accident. If you miss the deadline for filing your case, you may lose your legal right to damages for your injury. Consequently, it is important to talk with a lawyer as soon as you suffer or discover an injury.

What should I bring with me for my meeting with a lawyer?

You should provide a lawyer with any documents that might be relevant to your case. Police reports, for example, contain eyewitness information and details about the conditions surrounding auto accidents, fires, and assaults. Copies of medical reports and bills from doctors and hospitals will help demonstrate the extent and nature of your injuries. Information about the insurer of the person who caused your injury is extremely helpful, as are any photographs you have of the accident scene, your property damage, and your injury. The more information you are able to give your lawyer, the easier it will be for him or her to determine if your claim will be successful. If you haven't collected any documents at the time of your first meeting, however, don't worry; your lawyer will be able to obtain them in his investigation of your claim.

What if a person dies before bringing a personal injury lawsuit?

It depends on whether the person died as a result of injuries from the accident or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person's heirs may recover money through a lawsuit known as a wrongful death action. Also, even if a person with a personal injury claim dies from unrelated causes, the personal injury claim survives in most cases and may be brought by the executor or personal representative of the deceased person's estate.

What is "negligence?"

The critical issue in many personal injury cases is just how a "reasonable person" was expected to act in the particular situation that caused the injury. A person is negligent when he or she fails to act like an "ordinary reasonable person" would have acted. The determination of whether a given person has met the "ordinary reasonable person" standard is often a matter that is resolved by a jury after presentation of evidence and argument at trial.

What if I can't prove someone's negligence caused my injury? Is there any other basis for personal injury liability besides negligence?

Yes. Some persons or companies may be held "strictly liable" for certain activities that harm others, even if they have not acted negligently or with wrongful intent. Under this theory, a person injured by a defective or unexpectedly dangerous product, for instance, may recover compensation from the maker or seller of the product without showing that the manufacturer or seller was actually negligent. Also, persons or companies engaged in using explosives, storing dangerous substances, or keeping dangerous animals can be strictly liable for harm caused to others as a result of such activities.

Will the person who caused my injury be punished?

Not in the traditional sense of the word. Defendants in civil actions for personal injury do not receive jail terms or criminal fines as punishment. Those are criminal sentences, and personal injury cases are civil actions. However, in some cases, juries and courts can award what are called "punitive damages," which are designed to punish defendants who have behaved recklessly or intentionally against the public's interest. The goal in ordering the payment of punitive damages is to discourage such defendants and others from engaging in the same kind of harmful behavior in the future.

I have been in a motor vehicle accident. Should I go to a doctor?

If you have been injured in a motor vehicle accident, you should see a doctor right away. Firstly, you should see a doctor for your own well-being. You may not be able to discern the extent of your injuries yourself; a small ache could be something significant, or it could be nothing at all. Only a doctor can tell you for sure. Secondly, you should see a doctor because if you decide to bring a legal claim against the at-fault driver or another party, you will need documentation of your injuries and what you did to fix them.

Do I have to go to court if I want to recover monetary damages?

Maybe. Your case may settle even before your attorney files a lawsuit; on the other hand, it may go all the way to a trial and a jury verdict. The majority of lawsuits are settled before they get to trial, but what happens in your case depends on the facts, the law and the parties involved.

If the accident was my fault, can I still recover compensation?

Some states have no-fault insurance laws. This means that you may be able to make some recovery of economic damages from your own insurance company. In other states, if your fault is found to be over a certain level, it is more difficult to recover compensation. An attorney in your state can advise you on the rules in your area.

How much is my personal injury case worth?

Your attorney can speak with you about this, but even attorneys can't necessarily pinpoint what your case is worth until it is close to a resolution. Many factors, including the circumstances of the accident, the state of the drivers involved and the insurance companies influence the outcome. So do your medical bills, your loss of income and the nature of your injuries. An experienced lawyer can work with you to decide whether to pursue legal action and how to proceed.

How soon do I need to bring my legal claim against the other driver?

It is best to speak with an attorney right away. The time limits for taking legal action vary by state, and they may also be affected by insurance policy specifics. The nature of your injuries may even change the amount of time you have to bring a claim.

What if the insurance company offers me a check right away?

Before you accept anything — or sign anything — from an insurance company, be sure that you are aware of your legal rights and options. Accepting a check may mean that you are giving up your right to sue later on if you need extra medical care or you have to miss a lot of work. Consult an attorney before you negotiate with the insurance company.

What if the other driver, who caused the accident, has no insurance?

Even though your state may require all drivers to carry a certain level of auto insurance, that doesn't mean that everyone follows the law. This is why some states require insurance companies to offer drivers uninsured and underinsured motorist coverage. If your insurance policy has this feature, then it may compensate you for some of your losses.

Are there parties other than the at-fault driver against whom I can take legal action?

If you have been injured in a motor vehicle accident, there may be parties other than the at-fault driver who share responsibility for what happened. If the accident occurred because the other driver was drunk, and a business served alcohol to the visibly intoxicated driver before the accident, your state's dram shop law may allow you to hold the business liable; this varies from state to state. If a defect in one of the autos caused or worsened the accident, the vehicle manufacturer may be responsible for the injuries that resulted. Or a third party may have left debris in the road or caused one of the drivers involved in the accident to undertake a risky driving maneuver to avoid collision. Finally, if the owner of the car driven by the at-fault driver negligently allowed the driver to use the car, the owner may be liable, too.

Why are so many consumers filing bankruptcy?

Most Americans with excess debt have acquired their debts over long periods of time. While they intend to repay the debts, they may find themselves unable to do so because of unanticipated changes in circumstances such as medical emergencies, job losses or failed businesses, disability, divorce or loss of spouse. Any of these circumstances, combined with late fees, over limit fees and the extraordinarily high interest rates that creditors now charge can result in insurmountable debt.

What alternative courses of action are there to filing bankruptcy when facing overwhelming debt?

Short of bankruptcy, a debtor may attempt to mediate with creditors or negotiate workout agreements to extend due dates, lower interest rates, partially forgive debt or alter other terms. A debtor may execute an assignment of property for the benefit of creditors (ABC), wherein the debtor puts assets in the trust of a neutral third party to pay creditors. A business debtor can sell the business, negotiating the satisfaction of debt as part of the deal. Other creative options to bankruptcy exist. Many debtors, however, find that their creditors are unwilling to agree to reasonable terms or are completely unwilling to negotiate.

What types of bankruptcy are there?

Consumers usually file Chapter 7 "liquidation" or Chapter 13 "reorganization" bankruptcies. Under Chapter 7 bankruptcy, the debtor transfers nonexempt property (if any) to a trustee who liquidates it to pay creditors. In practice, most persons considering Chapter 7 only own property exempt from liquidation under the law and most of their debt is cancelled (discharged) without actually losing any of their property. Under Chapter 13 bankruptcy, the debtor repays certain debts over time (from three to five years). In 2005, a bankruptcy law change instituted a complex means test. Debtors with disposable income (as determined by the means test) must file under Chapter 13 and repay a portion of their debts, based upon their ability to do so. Debtors without disposable income are eligible for relief under Chapter 7.

Can bankruptcy free me from my student loans?

In some instances you can include student loans and taxes in a Chapter 13 repayment plan and pay them off over time. In many cases, this will save debtors money. Also, in rare instances, these debts may be dischargeable.

Are spousal maintenance or alimony, and child support obligations dischargeable in bankruptcy?

2005 changes to the federal bankruptcy laws provided that "domestic support obligations" like alimony and child support are not dischargeable, nor does the filing of a bankruptcy petition stay most court proceedings dealing with family law issues. Under Chapter 7, but probably not under chapter 13, other obligations to a spouse or child incurred in a divorce, separation or by court or government order are also not dischargeable, such as property settlement obligations.

Can I stop paying my alimony and child support during my bankruptcy?

2005 changes in the bankruptcy laws require a debtor to remain current on all domestic support obligations such as alimony or spousal maintenance, and child support, throughout the duration of the bankruptcy. If a debtor falls behind on his or her domestic support obligations during bankruptcy, the bankruptcy could be dismissed or converted from a Chapter 13 to a Chapter 7 proceeding.

How long may credit bureaus include bankruptcy information on a credit report?

Consumer credit reports may reveal Chapter 7 bankruptcy cases for 10 years from filing. Chapter 13 information can be included for seven years from discharge or 10 years from filing if there is no discharge. Account information for debts discharged under either chapter may be included in credit reports for seven years after the accounts go inactive.

Should I consult a lawyer for legal advice about bankruptcy?

Yes, if you are contemplating bankruptcy, or have questions about bankruptcy, you should contact a bankruptcy attorney immediately. As you will likely only file for bankruptcy once in your life, you should hire an experienced bankruptcy lawyer for this very important job.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

View Milavetz Law Offices in a larger map

Locations & Directions

Brooklyn Center
Coon Rapids
Delano
Eagan
Edina
Forest Lake

Maple Grove
Minneapolis
Minnetonka
Roseville
St. Cloud
Woodbury

	For nearly 50 years, the law firm of Milavetz, Gallop & Milavetz has been confidently serving clients from their offices in Minnesota, including individuals in the areas of Minneapolis, St. Paul, Edina, Coon Rapids, Brooklyn Center, Roseville, St. Cloud, the entire Twin Cities metro area, western Wisconsin including Hudson, Menomonie, and Eau Claire, and all of the surrounding areas.