Legal Question in Criminal Law in Minnesota

Re: Criminal Law-- Burglery, Break & Ent., ect.

Thank you for your question. This is a challenging problem, and I would need more facts to fully evaluate the matter, but this should help for a start.

First, her breakin at your home. I would certainly report the incident to the police, as you have done, but I do not expect they will be inclined to press the city attorney to file criminal charges, since it is a "domestic matter." I may be wrong, but I often find the police and prosecutor are less than excited about charging a case when there is an ongoing family court proceeding. They often seem to take the position that it will all get resolved in family court. Further, if there is an OFP against you, my guess is they will he less enthusiastic about taking action against her. That is not "right," but it is the way things often work in the "real world." You need to realize that it is not unltimately up to you whether she is charged with a crime. One of the great myths of our legal system is that victims "press charges." In fact, that is not the case. Prosecutors (a city or county attorney) makes that decision, sometimes contrary to the specific wishes of the victim.

Second, even if they do not charge her with a criminal offense, the facts you have described may nevertheless be relevant in both your custody case, and as a defense to a charge that you violated the OFP. Again, these facts may not be "legally relevant" to either matter (as a strict matter of law), but they can certainly influence both proceedings. How you develop and use those facts is a matter you should discuss with an attorney.

Third, if you have not done so already, you would be well advised to consult with an attorney about the custody matter. You cannot assume that you can merely walk into court and "present your case." If it has not done so already, the court will very likely order a custody study by a court appointed social worker. How you present yourself to the court and, almost more important, how you present yourself to a custody evaluator, can be critically important. You really should not be making tactical decisions about how to proceed in either forum without an attorney.

What you need to realize is that this is a much more complicated area of the law than most people imagine. It is much more than simply reading the statute and mustering a collection of facts about you and the mother, in some attempt to show "what kind of person he or she is."

You should contact my office if you have further questions about this matter. No matter who you choose to contact, I would recommend you do so sooner, rather than later.

Re: Criminal Law-- Burglary, Break & Ent., etc.

According to your description, she committed the crime of burglary. Whether the prosecutor will charge her with that crime, will depend upon their discretion and judgment about whether it is a provable case, given the evidence available to them.

You might consider filing for an Order for Protection ("OFP") under the MN Domestic Abuse Act, in family court, to get an OFP restraining her from coming anywhere near you or your home, work, etc. (with an exception for visitation of children). This could be based upon the burglary. If she testifies at the OFP hearing, the transcript (if you order it) could be used against her in the crminal case, or encourage the prosecutor to file criminal charges. You can seek an OFP without a lawyer, but it would be much better to have one. Good luck.

Re: Criminal Law-- Burglery, Break & Ent., ect.

If you own the home with her and her name is on the title, the charge of burglary is unlikely. She has the right of legal access to that residence and, as a result, it is not a crime to break into that residence.

She may certainly be guilty of theft if she took items that belong to you. However, whether the prosecutor will charge her with that crime depends on the prosecutor. In most cases, the prosecutor is likely to consider the dispute a civil matter.

With respect to the home, in order to determine each party's respective interest in the home, you would have to file what is called a partition action. It would determine each party's contribution to the asset and their respective interests.

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