Often in divorces, the parties are not on an equal playing field to start. When there are children involved, one party is usually the primary caretaker and is footing the bill for caring for the children without the help of the parent that may have moved out of the home. Or there may be a situation where one party was the breadwinner and supported the other spouse, and now isn’t providing the support that the spouse needs to survive. Another situation is where one party does not have the resources to pay for an attorney, which is necessary to continue in the divorce proceedings.
When situations like this arise, generally there is a hearing for temporary relief early on in the case. Temporary relief allows the parties to go to court and ask for support prior to the final resolution of the case. This allows the party in the lower financial position to be on a level playing field and not feel desperate to settle and reach a final resolution which may be detrimental to their overall position.
Another purpose of temporary relief hearings is if the parties are not able to come to an agreement on how parenting time and custody should be, but are not ready to finalize all of the details of the divorce. The judge is able to listen to both parties’ positions and make a decision that will give the children the most stability they can have while the parents are going through the remainder of the divorce process.
While temporary relief hearings are a useful tool to have in many situations, not all judges like to hear them. It may be more beneficial if the parties are able to cooperate at all to attend mediation and see if they can resolve the disputes outside of court. This gives the parties some power in shaping their future, and it is generally less contentious; with temporary relief hearings, both parties submit materials to the court that are often hurtful to the other party. The affidavits that each party write generally contain information that does not need to be said if the mediation process is used.
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Using Temporary Relief Motions in Divorce in Minnesota
Monday, June 21st, 2010The discovery process: determining what makes up a marital estate in Minnesota Divorce
Monday, June 14th, 2010Often in a divorce, the parties do not trust each other to fully disclose all of their assets or may believe that a spouse is intentionally hiding money or property from the other. A full and fair disclosure is necessary to be able to divide up the marital estate in a fair and equitable fashion, as is required by Minnesota Statute.
In order to ensure that both sides are giving a full and fair disclosure in the divorce process, the court uses a process called discovery. The discovery process allows both parties to serve requests on the other in written form or through a deposition, where each party is required to respond with a sworn statement under oath. The importance of the statement being sworn to under oath is that the person is affirming that the information is true. If the other spouse finds out at a later date that information was incorrect or not disclosed, the court is able to penalize the party that made those statements. This may be done in a property division. Also, it affects the individual’s credibility in the eyes of the court.
If the parties enter an agreement based on the discovery and one party finds out at a later date that there was important information left out by the other party that would have substantially affected the property settlement, the court is able to reopen the agreement. The court is reluctant to reopen any agreement in general as it values the finality of agreements, but not disclosing information in discovery when formally requested is a major problem. Fortunately, it does not come up too often.
Finally, formal discovery requests are continuing in nature. That means that if a party has responded to discovery requests and something else comes up prior to the final resolution of the case, that party has a duty to supplement the initial responses. If a party does not do so and the other side or the court finds out, the agreement may be reopened on that basis as well.
How can I change my child support obligation in Minnesota?
Monday, June 7th, 2010More often than not, once child support is set in a case it will be modified at some point in the future. This can be for a number of reasons. The most straightforward, however, are that either parent has had a substantial change in income; that there is a substantially increased or decreased need of either parent; that a parent is receiving public assistance; a change of either parents’ cost of living; extraordinary medical and/or dental expenses of the children; a change in the availability of appropriate health care coverage or a substantial change in the cost of existing health care coverage for the children; addition of work-related or education-related child care expenses or a substantial increase or decrease in existing work-related or education-related child care expenses of either parent; receipt of social security benefits by either parent or the children; a change in the residence of the children; or the emancipation of a child.
Once you satisfy one of the above criteria, it is presumed that child support should be modified if the change in the child support award pursuant to the guidelines child support award is a difference of at least $75.00 AND 20%. However, the court may modify it based on other circumstances, as long as the court finds the existing child support award to be unreasonable and unfair.
Child support can be a very confusing subject for people who do not have to deal with it on a daily basis. If you have questions about your specific situation and if your case may benefit from seeking a modification in support, contact a family law attorney at H&L today for a free initial consultation.
What happens in Minnesota divorce when one spouse dies?
Tuesday, June 1st, 2010It is not very common that a person dies during the pendency of their divorce. What happens in that situation? How is property distributed?
Certain rights come with marriage by law. If an individual does not have a will, their property first passes to their spouse; the amount of property to the spouse may vary depending on circumstances, but the first portion of it will always pass in that way. Further, a spouse is able to claim a specific portion of an estate even if there is a will that does not specify they would receive that amount. In addition, if you are married your spouse is your beneficiary on retirement and life insurance unless they waive that right.
If a person dies during the pendency of the divorce proceedings, the property passes to the spouse as the parties are still married. It does not matter that there are proceedings that clearly show the parties do not get along. Until a judge signs a final divorce decree and it is entered by the court, the parties are legally married and entitled to all legal rights and privileges that come with it.
Can child support arrears affect my ability to get a passport?
Monday, May 24th, 2010When child support is collected through the county child support office, there are more enforcement remedies available than when child support is collected by the parent to whom it is owed. One of those remedies involves the obligor’s, or person who has to pay support, ability to get or renew a passport.
Pursuant to federal law, if an individual is $2,500.00 or more in arrears in child support and does not have a payment plan with the county child support office to pay it off, the Minnesota Department of Human Services may report the individual to the U.S. Department of State. Once that individual’s name has been shared with the U.S. Department of State, the Secretary of State will not issue a passport for that individual.
The passport denial continues until the individual has completely paid down their child support arrears; the obligor is not able to just pay it down below the $2,500.00 amount and get their passport.
Once the child support arrears are paid in full, the Minnesota Department of Human Services will notify the U.S. Department of State that there is no longer a hold for unpaid child support. The U.S. Department of State will make sure that there are no other outstanding obligations in other states and may at that time lift the restriction on obtaining a passport.
This process is exemplified here by the U.S. Department of State. However, it is best to discuss your options with an attorney if you are in this situation.
Common additional provisions added in custody agreements
Tuesday, May 18th, 2010When parties reach an agreement on custody and parenting time, there are often other provisions added into the agreement that would not otherwise be if the court decided the issue. Below are a few common provisions:
• Right of first refusal: The right of first refusal means that if the parent “on duty” is unable to care for the children for a period of time (often specified in the agreement), that the other parent has the first opportunity to say they will care for the children. This allows the off-duty parent to spend more meaningful time with the children rather than the children being cared for by a babysitter or other family members. This can get contentious if the boundaries are not set by the parents though. For example, if a time period is not specified and the child is regularly in daycare, the parents may not later agree on whether time in daycare is subject to this right or not.
• Vacation time: If the parents want to take extended vacation time with the children uninterrupted by parenting time of the other parent, they are able to agree to this. Often parents will agree to anywhere between one and three weeks during the summer or school breaks. This time can be spent just staying in town if the parent has time off of work or going away on vacation.
• Telephone/Email/Skype contact: Parents are able to set parameters for contact from the other parent during their parenting time. It is always the same for both parents, depending on what home the children are in at the time. Some parents prefer to allow unfettered access to the children, whereas others prefer to have a smaller block of time (generally a couple hours in the evening) where the parent may call. If the noncustodial parent does not live nearby, Skype allows an opportunity for the noncustodial parent and the children to have face time together.
• Extracurricular expenses: In a general divorce decided by the court, extracurricular expenses may not be addressed. However, this often is a large expense of the custodial parent that should be shared. The parents are able to agree as to how these expenses should be divided, whether it is by their percentage of income, shared completely, or if one parent will pay all expenses in exchange for something else.
• Mediation: Most parents that reach an agreement on parenting time and custody are able to work together to an extent. To that end, when problems arise in the future, there is often a provision added to the agreement that the parents will try to work out the problem before going to court. If they used mediation in the past, they most often will include that.
How and when is parentage addressed in divorce in Minnesota?
Monday, May 10th, 2010There are two unique situations where parentage must be addressed in a divorce action: when the parents were not yet married at the time of the child’s birth and when the wife is pregnant at the time of the divorce proceedings.
Under Minnesota law, if a child was born previous to a marriage and parentage has not yet been addressed, then parentage will need to be addressed in a divorce action. The court can make determinations on parentage based on the agreement of the parties that the husband is the father. Also, if the parties signed a Recognition of Parentage form at the hospital, there is a presumption that he is the legal father and short of any competing presumptions, the court can use that to adjudicate him the father at the time of the divorce. Also, if there are remaining questions about paternity, genetic testing is available through the court.
A more difficult scenario is when the wife is pregnant at the time of the divorce. A husband is presumed under Minnesota law to be the legal father of any child born during the marriage or within 280 days following a divorce. If the wife is pregnant at the time of the divorce with another man’s child, the presumption can be outweighed by genetic testing or agreement of all parties. However, if both men and the wife agree, the issue can be addressed through a Recognition of Parentage being signed by the biological father along with a Joinder by the husband at the same time, after the child is born.
Addressing pregnancy during divorce is more difficult because the court cannot make determinations about paternity until after the child is born. Often in the court’s final divorce order, the pregnancy will be addressed by stating that a Guardian Ad Litem is appointed and that the parties will address the paternity issue in a hearing following the expected date of birth.
Calculating child support in third party custody cases
Monday, May 3rd, 2010It is becoming increasingly common for parties other than a child’s biological parents to take over caring for a child on a regular basis. The legal process to change custody is through a third party custody action. In order to file this, you must have a connection to the child (either as a de facto custodian or an interested third party). The court will determine if you have a valid claim, and if it is in the child’s best interests to be in your care rather than the biological parents.
What happens once custody is transferred? Who is financially responsible for the child?
Minnesota Statutes set out specifically how child support is calculated based on guidelines for support. Minn. Stat. § 518A.35, subd. 1(c) states as follows: “If a child is not in the custody of either parent and a support order is sought against one or both parents, the basic child support obligation shall be determined by referencing the guideline for the appropriate number of joint children, and the parent’s individual parental income for determining child support, not the combined parental incomes for determining child support of the parents.” This means that the biological parents will remain financially responsible for the minor child, either jointly or separately. The custodian has one less thing to worry about in taking over the responsibilities that come with parenting a child.
Changes to basic child support awards
Monday, April 26th, 2010If you have a child support order that is enforced through the state agency, there may be an automatic adjustment filed on your behalf for the cost of living. If this is done, notice is sent to the person ordered to pay child support stating that they have a certain amount of time to object to the COLA or it will automatically go into effect.
The obligor is able to object to the COLA on the basis that his or her income did not increase and that he or she is unable to pay an increase in child support. This can be verified through tax returns and paystubs. The court then has the opportunity to hear the issue from both parties and determine whether or not to grant the increase in child support.
Generally, when a party is given notice that a cost of living increase may go into effect, it is a good time to review the child support obligation. It is possible that the income levels of the parties have changed or other related costs, such as daycare or medical insurance. If the amount of child support that would be ordered under the current facts differs enough from the previously ordered child support amount, it is possible to receive a modification in support.
Either party is able to request a modification of child support. If the party receiving support determines that the support should increase based on the circumstances, it would be worthwhile to request a modification in child support as well. The court uses the same standard for modifying either upward or downward from the current child support award.
How does my criminal history affect custody determinations?
Monday, April 19th, 2010When the court makes a custody determination, the judge is to consider the thirteen “best interest” factors that are set out in Minnesota Statute 518.17. These factors are taken into account for each proposed custodian, and the court makes a final determination by weighing each of the factors. The court cannot choose to ignore certain factors.
The court is able to consider a proposed custodian’s criminal history to the extent it could affect their ability to raise a child. If a parent has a criminal history of violence, for example, even if it were before the child was born, it could weigh in the custody determination. However, if the parent has a criminal record that would not in any way affect the child, it would not influence the court’s custody determination.
One way this could play out is with prior drug or alcohol-related convictions. If a parent had an isolated incident in their past, such as an underage consumption violation, it probably will not be weighed heavily against them in determining custody. In comparison, a parent with a conviction related to abuse of an addictive controlled substance, multiple drug-related convictions, or convictions that show a pattern of relapse may have a harder time getting custody.
Each case is considered based on its own facts. The court cannot generalize about prior criminal behavior, and generally it will not unless that criminal behavior somehow directly impacted the child that is the subject of the custody battle. If you have questions about specific incidents in your past, contact the family law attorneys at Heimerl & Lammers today to see how it would impact your case.