FREQUENTLY ASKED QUESTIONS

GENERAL

• Does your firm do “flat fees”?
• Can I get a free consultation?

FAMILY LAW

• Can I calculate my own child support?
• Do I still have to pay child support if I’m not being allowed to see my child?
• Will I or my spouse have to pay maintenance (alimony)?
• What County is my divorce going to be in?
• How does the Court determine what parent should get custody of the child(ren)?
• Can I move out of state with the child(ren)?
• Can I modify/change a prior court order regarding child support, custody, and/or parenting time?

CRIMINAL LAW

• What are the maximum fines for my charges?
• How long might I lose my Driver’s License for my DWI?
• What is the general process for hearings that I can expect with my criminal charges?
• Can the Court order me to do treatment?

 

Does your firm do “flat fees”?
Depending on your legal matter, Mark Betters and Associates may be willing to represent you on either an hourly or a “flat fee” basis.  Both hourly fees and flat fees require an upfront retainer.  Flat fees are more common with criminal matters, and hourly fees are more common in family law matters.  However, there are exceptions to both.

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Can I get a free consultation?
Yes.  Many times free consultations are given on the phone.  Free consultations are limited to 30 minutes.  Often the consultation includes a conversation on the phone and a follow-up meeting in person. Anytime family law matters are involved, you should be prepared to give your name and the name of the opposing party in order to avoid conflicts. Your information is confidential.

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Can I calculate my own child support?
It is possible, but it may be difficult.  Generally, it is a good idea to at least attempt to calculate your own child support.  The best tool for doing so can be found on-line at http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx.  Although you’ll find that the calculator asks for extensive information, you may want to start by simply addressing the questions about income, medical insurance, and the number of joint children.  Even if you find that you cannot accurately calculate child support on your own, you will be benefited by seeing how the calculator generally works.

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Do I still have to pay child support if I’m not being allowed to see my child?
Yes.  Under Minnesota law, the fact that one parent wrongfully prohibits the other parent from seeing the child(ren) is not an excuse or explanation for not paying child support.  Accordingly, if you are being denied parenting time, do not rely on such denial as an excuse to not pay child support. Rather, you must take legal action immediately to enforce your parental rights.

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Will I or my spouse have to pay maintenance (alimony) after our divorce?
Maybe.  While maintenance is probably the most “grey” area of divorce law, you can generally expect the following:  1) maintenance is more likely to be an issue in a divorce if you have been married for seven or more years; 2) the higher the income of the parties, the more likely maintenance will be an issue in a divorce; and 3) if one party is disabled in a way that effects that party’s ability to earn income, maintenance is more likely to be an issue in a divorce.

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What County is my divorce going to be in?
Under Minnesota law, your divorce could conceivably be in any County in the State of Minnesota.  However, you should plan on having your divorce in either the County that you live in, or the County that your spouse lives in (although usually both spouses will live in the same County).  As a general matter, if you attempt to bring a divorce in a County where neither spouse lives, the Court may likely grant a “change of venue” motion, forcing the divorce to proceed in a County where a party lives. 

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How does the Court determine what parent should get custody of the child(ren)?
The Court determines custody by using various “factors” found in Minnesota Statutes that are referred to as the “Best Interest Factors.”  Minnesota law requires that all the factors be considered and weighed by the court, without giving too much importance to just one factor.  However, there have been decisions by Minnesota Courts that give extra emphasis to the factor that considers which, if any, parent has been the “primary caretaker” of the child(ren).  The “Best Interest Factors” are listed in Minnesota Statute 518.17, which can be viewed on-line at https://www.revisor.leg.state.mn.us/statutes/?id=518.17.

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Can I move out of state with the child(ren)?
Generally, you cannot move the child(ren) out of state unless either; 1) the other parent gives permission; OR 2) the Court gives permission after you bring a motion to request the move out of state.

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Can I modify/change a prior court order regarding child support, custody, and/or parenting time?
You can try, but the Court has the discretion on whether to change the order or keep it the same.  Each of these issues (child support, custody, and parenting time) is treated differently for the purposes of requesting a modification.  Child support is the most predictable, meaning that, as long as you can demonstrate that certain circumstances have changed, you will likely be allowed to modify child support.  Parenting time schedules can be modified, and the Court will generally consider the “best interest factors” in order to determine whether a modification of the parenting schedule is appropriate.  Custody is the most difficult to modify.  In fact, modifying custody requires that you actually bring a motion to request permission to bring a “custody modification” proceeding.

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What are the maximum fines for my charges?
Criminal charges come in three severity levels; Misdemeanors, Gross Misdemeanors, and Felonies.  The maximum sentence on each severity level is as follows:

Misdemeanor: 90 days jail and/or $1,000

Gross Misdemeanor: 365 days jail and/or $3,000

Felony: More severe than a Gross Misdemeanor, but specific maximum sentences vary depending on the specific charge.

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How long might I lose my Driver’s License for my DWI?
The answer to this question depends on what circumstances surround your DWI charges.  For example, the following circumstances may impact the length of a Driver’s License revocation; 1) your age; 2) number of prior DWI’s; 3) whether a child was in the vehicle; 4) your “blood alcohol concentration” at the time of driving; and 5) whether or not your DWI was based upon a test refusal.

There are two helpful things to know.  First, most “first time” DWI’s involve a 90-day Driver’s License revocation.  Second, for more detailed help with determining your possible revocation periods, go to http://www.dps.state.mn.us/dvs/DriverLicense/DL%20Info/DL%20frame.htm.  This website includes a brochure that has a relatively easy-to-follow graph that may help you determine the revocation period that applies to your specific circumstances. Specifically, click on "Impaired Driving" on the left of the web page, then click on the "Impaired Driving Penalties Brochure."

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What is the general process for hearings that I can expect with my criminal charges?
The level of your charges has an impact on what particular criminal “process” will be followed, but what follows is an overview of how the process generally works, regardless of the level of your particular charges.  Please keep in mind this is an overview and details change case to case.

1. Arrest and/or Complaint & First Hearing
Criminal charges are generally initiated in one of two ways: either 1) you are arrested on the spot; or 2) you receive a citation or “Complaint” in the mail, telling you when you must make your first appearance in Court.

If your charges involve a one-time issue that immediately involve police (such as DWI-DUI, Assault, or Shoplifting) you would often be arrested at the time of the incident.  If you are arrested under circumstances like this, the rules of criminal procedure require that you be released after being processed, or brought before a Judge within a few days to allow a Judge to determine what type of “bail” you should have, if any, in order to be released.

On the other hand, if your charges involve a long-term investigation (such as many Controlled Substance and some Criminal Sexual Conduct charges), you will often simply receive a Complaint in the mail, telling you when to make your first appearance.  Do not assume that just because you were not arrested that you will not be required to post bail after making your first appearance.  In fact, the Court will generally address the issue of bail at your first appearance, whether or not you were ever “arrested.”  This first appearance is generally called a “Rule 5 Hearing.”

2. Second Hearing
After you make your first appearance, you may likely be required to return to Court for a brief hearing called a “Rule 8 Hearing,” particularly if you are charged with a Felony or Gross Misdemeanor.  This hearing has minimal purpose, and is often waived when the Court will allow.  However, if you are in custody, the “Rule 8 Hearing” often serves as an assurance that your case will be “moved along” if you so desire. 

3. Omnibus Hearing / Pre-Trial Hearing
After the “Rule 8 Hearing,” (if any), you are entitled to have a hearing where you can argue that certain evidence must be “thrown out” because it was gathered in manner that violated your rights.  This can cover many things, including bad search warrants, involuntary statements, inappropriate vehicle stops, and faulty line-up identifications.  These hearings are called “Omnibus Hearings” for Gross Misdemeanor and Felony cases, and “Pre-Trial Hearings” for Misdemeanor cases.

The Omnibus Hearing/Pre-Trial Hearing is often the most important step in establishing your defense or getting charges dismissed due to getting evidence “thrown out.”  Through these hearings you ultimately are able to determine exactly what evidence will be presented against you at a future trial, or if a trial is actually necessary.

4. Trial
The trial is the most substantial hearing involved in criminal law.  In Minnesota, the defendant has the sole choice to have a jury (12 people for a Felony charge, and 6 people in Gross Misdemeanors and Misdemeanors), or to have the Judge alone decide your case.  The shortest trials can sometimes be completed in a couple of hours, while longer trials may last several weeks.

For jury trials, the process generally consists of; 1) selecting jurors from a larger “pool” of potential jurors; 2) “opening statements” to the jury where the jury is told what evidence to expect to hear; 3) the State calling it’s witnesses to testify; 4) you calling your witnesses to testify ; 5) “closing statements” to the jury where the jury hears arguments from attorneys about what the evidence indicates; and 6) the jury giving it’s verdict.

5. Sentencing, if any
If you are found Guilty at trial, or enter into any type of plea bargain without a trial, you can expect to be sentenced.  Sentences come in many forms, but they can be summarized as follows:

----------Stay of Adjudication – This sentence results in avoiding a conviction – yes, you read that right – you are sentenced, but not convicted.  Often this type of sentence can help you keep a job that would otherwise be lost, or allow you to keep a License that would otherwise be cancelled, suspended, or revoked.  Although you avoid being convicted, you will likely still be required to pay fines and possibly even serve jail time.

----------Stay of Imposition – This sentence results in a conviction.  However, Felony or Gross Misdemeanor convictions are later lowered to a Misdemeanor if you successfully complete tasks (or conditions) set by the Court.  A stay of imposition is generally useless for a Misdemeanor conviction, but can be extremely beneficial for Felony and Gross Misdemeanor charges.  The important thing to remember is that generally speaking, you will be considered to have been convicted of a Felony or Gross Misdemeanor (whichever applies to you) until the conditions are met.  Common conditions are paying fines, completing alcohol/drug treatment, and jail time.

----------Stay of Execution – This sentence results in a conviction.  However, all or part of a sentence is “stayed” for a period of time (usually about a year), and as long as you avoid further criminal charges for the time period set by the Court, the “stayed” sentence is never served.  For example, the Court may sentence you to 90 days in jail, but “stay” the sentence on the condition that you are on good behavior for 12 months and pay a $400 fine.  If you avoid further criminal charges during the 12 months set by the Court and completely pay your $400 fine, you do not have to actually serve the 90 days jail.

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Can the Court order me to do treatment?
Yes.  However, whether or not the Court will order treatment depends on the circumstances of your charges.  When ordered, typical treatment programs address issues such as Anger Management, Alcohol Abuse, Drug Abuse, and Sexual Offenses.

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