Jennifer C. Moreau has joined the firm’s Commercial Litigation and Employment Law practice area. The firm is excited to welcome Jennifer and hopes that adding this new associate attorney to the existing team will be beneficial to current clients and assist with the growth of new clientele. BGS’ Commercial Litigation attorneys are experienced trial lawyers able to represent clients in state, federal and the appellate courts on issues such as:

• business disputes
• construction issues and mold
• information technology security issues
• unfair competition
• contract actions
• non-competes
• employment defense and counseling
• unlawful detainers
• collection and insurance law
• other complex litigation cases

Jennifer received her J.D. from the University of Minnesota Law School, 2007, magna cum laude. She was admitted to the Minnesota State Bar in 2007 and was admitted to the U.S. District Court for the District of Minnesota bar in 2013.

She is a member of the Minnesota State Bar Association and of the Anoka County Bar Association.

Before joining BGS, Jennifer was a Judicial Law Clerk for the Hon. Robert B. Varco and Hon. Mary A. Yunker, Minnesota District Court, 2007-2013.

She lives in Coon Rapids with her husband and two children.

BGS Grows with Addition of New Lawyer is from BGS BARNA, GUZY & STEFFEN, LTD.

This is because mediation allows you to be an active participant in the process of deciding what is best for your child. However, that does not mean that there aren’t a few things you should know about the process.

1. Be Prepared

You already know that you should come to court prepared, but did you know that you should come prepared for your mediation, too? While the mediator doesn’t have the power to impose a decision upon you it does help to have all of the information at your fingertips.

Here are a few of the things you should consider bringing.

• A list of the issues that are most important to you, so that you can make sure those issues are addressed.
• Suggestions and plans for meeting each of these issues, such as suggested parenting time schedules.
• Records such as the child’s report cards and school attendance and progress, and other indicators of the care that you’ve been giving the child.
• A list of reasons why you should be the primary custodian, or why joint custody is best.

2. Be Willing to Listen

Mediation works best when you approach the process with an open mind. If you are willing to listen to possible solutions you’ll find yourself in a better position.

Remember, the goal of any child custody dispute is to create the situation that will truly be healthy for your child. If you let it be about you then you’ll have a much harder time viewing the situation objectively.

Be willing to brainstorm and to compromise. Leave your issues with your spouse at the door. You’ve both done things that have brought you to this day, so there’s no sense in rehashing those things.

3. Think Win-Win

Don’t go into mediation thinking about how you’re going to win at the other parent’s expense. Instead, think about creating a situation that allows your child to win while creating a scenario you can both live with. If you can’t get to a win-win solution you’re likely to end up in court.

4. Mediation is a Confidential Process

What is said and offered in mediation remains confidential unless the parties reach agreement and a signed agreement results. The court will be told that mediation was conducted, but unless agreement was reached, all discussions, offers and negotiations remain confidential and inadmissible in court.

BGS offers family mediation to help you with your child custody concerns in Minnesota. Please call for more information.

4 Things You Should Know About Child Custody Mediation in Minnesota is from BGS BARNA, GUZY & STEFFEN, LTD.

However, you can get a divorce even if you don’t know where your spouse is. Minnesota allows for service of divorce papers through alternate means when all reasonable avenues have been tried to find and serve your spouse through normal means.

Service by publication requires a court order, but the order will be granted if you provide facts sufficient to prove that you cannot find your spouse.

Once the papers have been served through alternate means the divorce will continue. Your spouse has a certain amount of time to file an Answer to your petition for divorce.

If your spouse fails to file an Answer then the courts will usually move forward with a “default” Judgment of Divorce. The issues of the divorce will be settled, most likely as you request, and you will no longer be married.

If your spouse is missing you should not assume that your divorce will be uncontested, however. Strange things can happen at the last minute. This is not the time to reach for a DIY divorce.

You could add or omit provisions in your Petition for Divorce that could cause you problems later and that will be difficult and expensive to fix after the fact, especially if your spouse returns years later and contests them. It’s best to get a divorce lawyer, even if you think you’re never going to see your spouse again.

Your lawyer will help you write your Summons and Petition in clear legal language that leaves nothing out, offering you the best chances of getting everything you need to continue your life after the judge awards the default judgment. If your spouse does reappear and file a surprise Answer before the clock runs out then you’ll be ready.

BGS has served the Minneapolis area for over 75 years. We’ve handled all kinds of divorces in Minnesota, from the routine to the strange. We can help you make sure that your divorce proceeds as smoothly as possible by offering you compassionate, expert support throughout the entire process. Call our family law attorneys today.

Can I File for Divorce in Minnesota if I Don’t Know Where My Spouse Is? is from BGS BARNA, GUZY & STEFFEN, LTD.

In order to be entitled to long term disability benefits, a person has to be “disabled” continuously for the initial “elimination” or waiting period and beyond. This disability need not be, and in fact is often not, due to a work-related injury. Disability can be established by a combination of unrelated injuries, conditions or illnesses that combine to prevent a person from working for the required period of time.

Different policies can define “disability” differently. Many policies adopt the definition of disability found in the Social Security Disability Act. However, the policies need not use that definition and many do not. Generally, these definitions require that the person be unable to perform the material and substantial duties of their own occupation for usually a period of two to three years. The definition often changes after that period of time and the person, in order to continue to receive benefits, must show that their injuries prevent them from performing any occupation that exists in the national economy for which they are suited by education, training or experience.

Benefits end if the employee no longer meets the definition of disability if their condition improves or they cannot meet the more restrictive definition. Also benefits can end once the contractual maximum is reached.

These policies typically pay out 50-65% of the person’s salary and these benefits are often taxable. The employee must comply with the insurance company’s requests for information and provide supporting doctor opinions within the requested time frame. These requests can be extensive and ongoing. The employee must also obtain recommended or accepted medical care in order to receive benefits. The employee also must undergo examinations by the insurance company’s hired doctor.

Most policies provide that the amount paid is further reduced by Social Security disability or retirement benefits, retirement benefits from other plans or organizations (but not for cost-of-living increases), unemployment benefits and sometimes personal injury settlements. The employee is required to apply for these benefits and an insurer can estimate the likely Social Security disability or retirement benefit and reduce the long-term disability benefits even if the insured does not apply or is denied.

Many policies often contain an exclusion for pre-existing conditions. However, after the policy has been in place for one or two years, the insurer generally is prohibited from relying on a pre-existing condition. They are often restrictions or exclusions for disabilities due to mental illness or chemical dependency.

Appealing an Adverse Decision

Generally, there are two types of appeals. Much depends on whether the plan is governed exclusively by federal ERISA (Employee’s Retirement and Income Security Act) or governed by state law. ERISA laws would exclusively apply to plans that are considered self-funded. The employee must first exhaust any internal appeal. That is typically handled by another insurance entity and may consist of submitting written argument and supporting documentation. This should include a well-supported and comprehensive report from the treating physician(s) with well-founded opinions supporting the employee’s disability.

If federal ERISA law applies, it’s important to make as complete and exhaustive of a record as possible since any judicial review will be limited to the evidence that was presented during the internal appeal. For the client I represented, we also had a vocational analysis that we had used in his personal injury claim, which also supported his claim for ongoing disability benefits. Thus, with the reports from his treating surgeon, the vocational report we were able to successfully obtain his long-overdue disability benefits.

These plans often have a very short time period within which the employee must provide notice of a claim and provide proof of loss. The plans can specify a statute of limitations. If Minnesota law applies, there is a three-year statute of limitations which can be shorter if ERISA law governs. There are significant differences between plans covered by ERISA as opposed to those covered by state law in terms of the standard of review and the amount of evidence that may be considered by the reviewing court. ERISA plans are generally more difficult to successfully pursue given this restrictive standard of review and scope of the record.

I am expanding my practice to further assist clients in this area of law. If you or a friend/family member have any questions about long-term disability plans, I’d be happy to answer them. We provide a free initial consultation.

Long-Term Disability Benefits Law – Looking at Options is from BGS BARNA, GUZY & STEFFEN, LTD.

Child support obligations do not extend past the age of 20 even if the child has not graduated from high school. There’s only one exception to this: if you have a special needs child that is unlikely to be physically or mentally capable of meeting his or her own needs. Each of these cases is determined on a case-by-case basis, taking into consideration receipt of social security or other financial benefits available to the child.

What about college? You and your spouse might agree to send a child to college together, but you’re not obligated to do so unless you and your spouse signed something to that effect during your divorce settlement.

Child support ends automatically. You don’t have to go back to court. You can simply stop paying the support unless you had an income withholding order. If you did, you’ll need to make sure that your case manager knows the child’s 18th birthday or high school graduation is approaching.

This only works, however, if your child support is paid in full. If you’re in arrears the state will continue to collect the past due amount. You can’t simply “wait out” your child support obligation, hoping that it’s going to go away.

If you’ve changed jobs or are having financial difficulties for other reasons you can petition the court for a child support modification order. This is a fairly routine procedure, though there are no guarantees that the court will make any changes. If you get into trouble it’s usually better to try this route than it is to simply allow your debt to accrue.

An experienced, qualified family attorney can help you navigate each of these issues to put you in the best possible position after your divorce. The attorneys at BGS have been serving the Minneapolis metro area for over 75 years. If you’re facing a divorce and you’re not sure what to do, give us a call for your initial consultation today.

When Does Child Support End in Minnesota? is from BGS BARNA, GUZY & STEFFEN, LTD.

If you continued to work at a business created prior to the marriage, the business will have aspects of non-marital and marital value, which may be tricky to determine.

Minnesota law demands that marital property be divided equitably (though not necessarily equally). This does not mean you will necessarily lose your business, however. It simply means that the business is an asset which must be taken into account.

Business valuation is a complicated process. It’s complicated even when you simply want to sell the business. It can get even more complicated during a divorce.

You have to understand this because your business value may be larger or smaller than you think it is. Business valuation takes many factors into account, including the company inventory, the company assets, the income received by the business, and even intangible factors like “customer goodwill.”

Two business valuation agents may not even entirely agree on what a business should sell for, even if they look at the same set of books and the same set of factors, all things being equal. This can make things difficult in divorce court when it becomes time to make decisions about how all of the marital assets should be divided.

When it comes to allocating a business the courts have options. It could force the sale of the business to distribute the cash amount. Another option is to award the entire asset to one spouse or the other. When this happens, the spouse who receives the business generally must make cash payments to the other spouse over time, if it is impossible to pay the entire amount at the time of the divorce, or equalize with other assets.

If you are concerned about the fate of your business remember that asset division is a total package. You may be able to sacrifice some other part of your marital property in order to keep the business.

It is uncommon for a business to be sold if it would deprive the business-owning spouse of future income. With the right professionals on your side, including a family lawyer and a business lawyer, you should be able to create a situation that you can live with.

If you own a business and you’re facing a divorce then contact the experienced divorce attorneys at Barna, Guzy, and Steffen. We’ve been helping our clients in the Minneapolis metro area get the best possible outcome for their complicated cases for over 75 years and we can help you, too.

What Happens to My Business During a Divorce in Minnesota? is from BGS BARNA, GUZY & STEFFEN, LTD.

Sarah Thies with one of the Stable Pathways horses named Becky.

Sarah is the legal administrative assistant in our municipal, labor and employment group. Sarah has been with BGS for over 20 years. She is a monthly platelet donor at Memorial Blood Center and a regular volunteer at the Brooklyn Park Eidem Homestead historical farm.

Sarah also volunteers and is on the Board of Directors for Stable Pathways. Stable Pathways is located at Bunker Park Stables in Coon Rapids. It provides equine-assisted activities for people living with physical and cognitive challenges under the careful direction of either a Professional Association of Therapeutic Horsemanship (PATH) International Certified Instructor or a Minnesota licensed Occupational Therapist.

Sarah says that therapeutic horseback riding helps riders “organize” body and brain. Sarah explained that the horse’s gait is most similar to a human gait so riding provides a connection to a natural rhythmic movement from the horse that stimulated the rider’s body and brain.

Sarah says that riders at Stable Pathways have experienced positive changes in a variety of ways such as steadier balance, improved core strength, increased trunk control through side to side and front to back movement, and strengthening legs through stretching and balance. She indicated that riding provides physical and mental organizing benefits; social skill practice and interaction as well as learning independence and practicing decision-making skills and developing empathy.

She says that riding in different positions really improves balance and stability but also gives the rider confidence and improved self esteem. An avid horse fan, she says that helping the riders and watching the fun that they are having is the best part of the program.

Group classes are held on Mondays for 12 weeks in the spring and again in the fall. Stable Pathways is a 501(c)(3) organization. To learn more about Stable Pathways, visit their website.

Employee Spotlight: Sarah Thies, Legal Administrative Assistant is from BGS BARNA, GUZY & STEFFEN, LTD.

However, as we’ve discussed before divorce always means making some financial sacrifices. You’re better off fairly and accurately reporting your assets. If a judge finds out that you’re trying to withhold information it will not reflect well for your case.

Minnesota law is going to entitle your spouse to a “just and equitable share” of your retirement accounts, even if the account is only in your name and even if you were the only one who was working at the time. If you did contribute to the plan prior to your marriage, then you may have a non-marital interest which should be stated so that the pre-marital portion is awarded solely to you.

Remember that “equitable” distribution does not mean “equal” distribution. You won’t always have to make a 50-50 split and you aren’t necessarily going to have to give up half of your current account balance. Having a good divorce attorney is helpful in this regard.

A good attorney can help you bring certain aspects of your situation to the attention of the court. At times, these can affect what might be “equitable” for you and your spouse.

If you are the spouse who expects to receive a portion of the retirement account you may be wondering how the money is distributed and when. Much depends on what sort of retirement account it is.

IRAs are fairly straightforward. You can roll over your portion of the account simply by presenting the divorce decree at the bank, or whatever document the plan requires.

A 401K requires an additional document called a Qualified Domestic Relations Order, or QDRO. This paperwork helps the financial advisor distribute the funds properly, without jeopardizing the protected tax status of the account. Pensions may also require a QDRO.

Given the nature of pensions, a QDRO will often express your award as a fraction rather than as a specific dollar amount. There may be no way of knowing how much money you can expect to receive until the retirement plan starts making regular disbursements.

Whether you’re trying to hold on to as much retirement money as possible or you’re trying to make sure you get your fair and equitable share from your spouse’s retirement accounts, call us. Barna, Guzy & Steffen has decades of family law experience. We understand the sensitive issues surrounding retirement accounts and we can help you navigate them in order to help you get a better financial outcome then you could get on your own. Call us now.

What Happens to Retirement Accounts during a Divorce in Minnesota? is from BGS BARNA, GUZY & STEFFEN, LTD.

Once you’ve filed the dismissal the divorce is over with and you can get on with the work of repairing your marriage. You can do this up until the divorce decree is signed because you are still married in the eyes of the law until that happens.

You can’t do this after the divorce decree is signed, however. There’s no way to cancel the divorce as you’re no longer married under the law once this happens. At that point you’d need to get re-married.

Another option, assuming the court file is open, is to put your divorce on “hold” or “inactive status”.  This is accomplished by filing a stipulation that both parties wish to put the matter on hold.  The court will generally wait 12 months, and if no action has been taken, the court file will be closed.  Any new action will require re-filing.  During the 12 months, either or both parties may request re-activation of the file.

If you were served, but the court file has not been opened, then nothing needs to be done with the court.  It would be prudent, however, to get something in writing from your spouse that states he/she is not proceeding with the divorce, and if they decide to re-initiate the proceeding, you will be given notice.

BGS has a qualified roster of highly experienced family law attorneys who stand ready to help you with your divorce. If you are facing a divorce, call us today for a consultation.

Does Minnesota Allow Couples To Cancel Their Divorce? is from BGS BARNA, GUZY & STEFFEN, LTD.

Minnesota has long had a law that creates liability for dog owners whose “best friends” are decidedly unfriendly and bite or injure others. This is commonly referred to as the “dog bite” statute (Minn. Stat. § 347.22). This law was enacted in 1951.

Under the statute, “If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where that person may lawfully be, the owner of the dog is liable . . .” Thus, an injured person must establish that they did not provoke the dog, they were acting peaceably in a place where they might lawfully be and that their injuries were the “direct and immediate” result of the dog’s actions.

This law only applies to dogs and not cats. There is a bill currently in the legislature to include cats but it is uncertain whether it will become law. The law also applies to anyone who is “harboring” the dog (which means actively caring for the dog as opposed to offering a stray dog a meal from time to time).

The law makes the owner, in essence, strictly liable if the person did not provoke the dog and was acting peaceably in a place that they could lawfully be. The owner cannot avoid responsibility by blaming the injured person. They can’t claim what is commonly referred to as “comparative fault” or “assumption of risk.” The injured person doesn’t have to prove that the owner failed to take reasonable steps and the owner cannot try to avoid responsibility by claiming the dog had never bitten anyone in the past.

Minnesota Appellate Courts have looked into whether young children can provoke a dog and have recently determined that petting a dog is not provocation. The Supreme Court also did away with an oddity that was unique to Minnesota which required the injured person to show that the dog was focused on them when they were injured. The Supreme Court decided this in July of 2012*. A man was injured when his 20-pound miniature schnauzer, inaptly named “Tuffy” was attacked by a larger dog named “Bruno.” The person was injured while trying to defend Tuffy from Bruno. The Supreme Court indicated that Bruno’s owner/harborer was responsible even though Bruno was trying to attack Tuffy and not apparently trying to injure Tuffy’s owner.

The Supreme Court indicated it’s still up to a jury to determine if a person’s injury is the direct and immediate result of the dog’s actions or whether the injuries were too “attenuated” to justify strict liability. The Supreme Court had previously declined to hold the dog owner liable when the driver was distracted by the dog’s jumping around in the car, which caused him to leave the road and kill a small child that was walking nearby.

However, the statute also applies to more than just attacks or vicious actions by a dog. The statute uses the language “attacks or injures . . .” This applies if the dog’s actions directly and immediately cause injury to another. So if a dog playfully jumps up, knocks someone over and injures them or unintentionally runs over a small child while playing, the statute may apply and the owner would be responsible.

Dog owners have been liable for injuries caused even if there is no contact between the dog and the injured person. Prior Minnesota Appellate Courts established responsibility when a person was injured jumping off his bike to avoid a dog who ran toward him in a threatening manner as well as a person who dove out of the way of a large dog who ran down the sidewalk the person was using. The dog apparently was just running by without focusing on the person injured.

In these cases, the Courts held the owner responsible for the dog’s actions. This is something all dog owners should be mindful of when letting their dogs outdoors. If you have been injured as the result of a dog’s unruly actions or attacked by a biting dog, please contact the Personal Injury attorneys at Barna, Guzy & Steffen, Ltd. We have helped hundreds of people in the Minneapolis metro area and in Minnesota who have suffered dog attack injuries. Call us today!

*Anderson v. Christopherson, A11-191 MN 7-18-12.

What is Minnesota’s “Dog Injury” Law? is from BGS BARNA, GUZY & STEFFEN, LTD.