Bruce D. Kennedy--My Projects
Besides practicing law, I have put a lot of time into improving the legal process. Here are some of things I have done and am doing:
My first involvement with legislation was a successful one. In the late 80's, I had become annoyed with Appendix A, which had become pages and pages of small print attached to every divorce decree or court order that referred to child support. It originated when sweeping family law legislation was passed in the eighties, and with each bill passed, the legislature required that the entire statute be recited in the court orders. As more and more of these bills passed, court administrators eventually consolidated the information into a single appendix. When the appendix grew to eight or ten pages (example to right), it occurred to me that few people were reading it. One reason was that the appendix recited all the legal minutiae of the statutes. I had joined the Family Law Legislative Committee of the Bar Association. I spoke out at a meeting about the growing absurdity of this appendix and got a lot of nodded heads. I guess I thought that my mentioning it would cause somebody to do something about it. When nobody did, I realized I would have to initiate the process. I wrote an article for a family law publication and got a positive response from other attorneys. I then hunkered down to draft a bill and realized that it would require amendments to six different statutes, and creation of a new one. I made §518.68 the central statute, and I filled it with capsulizations of the different statutes that it informed people about. I returned to the Legislative Committee with my work and got their endorsement. The full Bar Association also endorsed the bill, and it passed the legislature easily. While not a substantive change in the law, the reduction of boilerplate by eight pages is significant. There are thousands of child support orders every year. These orders are copied, mailed, and filed by court clerks, law offices, and citizens. Consider the savings in postage, copying costs, storage needs, and productivity across the state. The likelihood that people will read something is inversely proportional to how long it is, so having just two pages instead of eight or ten means that more people read and understand it. This experience proved to me that I could make a difference, indeed, that any citizen with a good idea could.
Over the years, I processed many divorces where one of the spouses was missing. The statutes provided this could be done with service by publication, after receiving permission from the court. Permission was granted if the client swore that the spouse’s location was unknown. The problem I saw was that it was very costly to publish this summons in a legal newspaper, especially since the chances of the notice reaching the missing spouse were minimal. After all, how many people in St. Paul read the St. Paul Legal Ledger, let alone people out of the state or country? When I researched the background for these procedures, I realized that publication was constitutionally suspect. Specifically, the Constitution requires Due Process of Law, and that means you are entitled to receive notice of any legal proceeding that involves you. And the U.S. Supreme Court has said that means simply that notice should be reasonably calculated to notify the party of the proceeding. Service by publication is not reasonably calculated to notify a party–it is an arbitrary act 95% of the time. A more reasonable approach is to try to contact the party at his or her last known address and employer, and to notify people who know the person: relatives, friends, acquaintances who may have stayed in touch. I drafted the law accordingly, and with some tweaking it passed. My own experience with the law has been great. My clients no longer have to pay over $100 to publish a summons. They supply addresses where the missing spouse had some connection, and we mail the papers to those addresses. I have had contact with missing spouses through their relatives or through forwarding at an old address. I even had one where we mailed the papers to a San Francisco bar where she used to hang out. She was happy to sign the papers and send them back to me, thus speeding up the process. Under the old law, these people probably would not even know they were divorced. It really is a win-win-win: better process (and more constitutional), lower cost, faster conclusion. 518.11 (c)
A law that troubled me was §519.05 which allowed creditors to collect from a spouse for “necessaries.” In other words, if husband incurred debt in his name, the wife could be sued if the creditor claimed the debt was for “necessaries.” This law actually scared people into divorce, since divorce was the only sure way they could insure they wouldn’t be liable for the spouse’s debts. In 1993, I drafted changes to §519.05, which were partially adopted in 1997. The law has been improved, but not as much as I hoped. Spouses can still be liable for "necessary" debts of the other spouse when they are living together, even if one spouse never signed.
I developed a proposal, which was never adopted, to pilot a “separation” court. This came out of my participation on the MSBA Family Law Systems Committee in 1994 and 1995. What we found was that early intervention has a better chance of ameliorating parental disputes than court decisions after litigation. The Separation Court idea is still a good one. Hennepin, Washington, Anoka, and Ramsey Counties now do something similar with Initial Case Management Conferences and Early Neutral Evaluations.
In 1993, the day care contribution was enacted, which I opposed. My preference at the time was a fixed $75 per month per child with deviations where appropriate, instead of the confusing income shares approach that was taken. My concern was that the cost of day care is constantly changing and the custodial parent’s income also is volatile when there are young children. By sharing costs, we increased litigation over who should provide the day care, whether relatives were really being paid, whether obligors should reimburse the government for subsidies, etc. I did participate in the drafting of the bill and called attention to the need for having the income comparison done either before or after the transfer of child support.
For many years I have advocated that motions to reduce support be retroactive for 90 days. Currently, support can only be reduced from the day a motion is served. A person who is laid off may wish to seek other employment for a few months before asking the court to modify the order. The current law penalizes the person for not dashing to the court house to file a motion the day of a layoff. The court has better information to modify and adjust support if the obligor has had an opportunity to obtain new employment. The Minnesota Department of Human Services insists that the current law is federally required.
In 1996, I worked with Senator Randy Kelly and Representative Andy Dawkins and others to revise §518.175 on parenting time. My suggestions included requiring all courts to have forms available for parties to bring their own motions without a lawyer and putting all remedies into one subdivision. These two provisions undoubtedly helped many parents enforce their parenting time rights.
Also in 1996, I was a member of the Minnesota Supreme Court Advisory Task Force on Visitation and Child Support Enforcement. We met all that year and issued a report in January, 1997, that was the basis for many positive legislative changes.
Also in 1996, I was invited to participate in developing the Minnesota Courts Strategic Plan for the Year 2005 sponsored by the Minnesota Conference of Chief Judges. There were about 250 participants in the focus group sessions from many different disciplines. I was selected because of my knowledge and experience in family law. A report was issued later that year.
In 1997, I proposed a change to §518.179, a statute that requires some convicted criminals to prove that it is in the best interests of their children for them to have visitation. My amendment, which was enacted, requires that a guardian ad litem be appointed when that statute is invoked.
In 2000, I drafted the repeal of §518.583, a required notice that capital gain tax could arise from the sale of a house. Changes in federal law made the notice unnecessary. I also played a role in the passage of a bill repealing the requirement (§518.147) that a statistical form be submitted with each divorce filing–these forms were being collected, but nobody was ever looking at them.
Also, in 2000, I drafted a revision to the statute allowing removal of a judge (§542.16), which extended the time of removal. This passed. A proposal which did not progress was my idea that referees stand for election and are subject to the same retirement age as judges. Referees serve in Hennepin and Ramsey. They are appointed and are paid less than judges, but for all practical purposes have the same powers. It seemed strange to me that they have greater and longer job security than the judges themselves. Because of my workload, and lack of enthusiasm from the bar, I did not pursue this idea.
For many years I have advocated that a parent seeking to move out of state with children have a reason to do so, not just a whim. In 1993, I drafted a proposal to change our current law, but the support was not there in the bar or at the legislature. The consensus developed over time. Recently, the Minnesota Academy of Matrimonial Lawyers drafted a bill which I supported and testified for. In 2006, the bill finally became law. (Scroll to 10.20.)
Another bill I drafted allows public employees to use what are commonly known as QDROs to transfer deferred comp and 403b retirement funds to their ex-spouse. A quirk in the law prevented them from doing so. The law passed in 2006. (Scroll to 14.34.)
After many years of effort, I finally convinced the real estate bar to eliminate the requirement that the legal description to real estate be identified perfectly in a divorce petition for the court to have jurisdiction over the property in the event of a default. This will encourage the use of Summary Real Estate Judgments and render quit claim deeds unnecessary. Scroll to 31.17.
This year, the Rules Committee adopted changes to General Rules 302.01 and 306 at my suggestion.
I have more ideas:
Standardize discovery in family law cases.
Modify the prehearing statement. Require a list of assets and liabilities with valuations and notice of nonmarital claims. Identify the issues of the case. Dispense with the current form.
I propose a statutory life insurance trust, so that ordinary parents can refer to the statute rather than expend funds to create a trust that has a .01% chance of being used.
I believe that domestic abuse orders should be tiered either two or three ways, to distinguish the serious abusers from the one-time scrappers from the alleged-threateners.
We should have a law that requires mortgage servicers to either call back the mortgage within two months after they are notified of a divorce, or release the no-longer-owning spouse from any credit responsibility. I doubt very much any mortgages will be called, and then the no-longer-owning spouse is free of any negative credit concerns involving that mortgage.
I support recodifying Minnesota divorce law so the statutes are in order, are concise, and make sense.
The law requiring that Social Security Numbers of divorcing people and their children be placed in divorce files should be repealed.
Divorce agreements with children where both parties have an attorney should not require notarized signatures.
Amend nonmarital property definition in two ways: (1) provide that interest or dividends from passive investment of nonmarital property are also nonmarital (eliminates quirk in case law and reduces litigation), and (2) presume that gifts to a spouse from a family are nonmarital (instead of requiring proof that family members intended it only for their relative–reduce litigation).
Reduce filing fees. The increase of filing fees from $24 when I began my practice to $400 now is an outrage, and it is an unfair tax on working people.