Kathryn Lammers

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Is a Personal Injury Settlement in Minnesota Marital Property or Non-Marital Property?

Friday, November 6th, 2009

In a divorce proceeding, a personal injury settlement can represent a large amount of money that will have to be divided between the parties. Usually, this type of settlement occurs in Personal Injury or Workers Compensation cases. In Minnesota, a personal injury survivor can recover for a variety of losses including: past and future wage loss, past and future medical expenses and pain and suffering.

During a divorce, the court or the parties divide the marital property and the non-marital property. Is a personal injury settlement in Minnesota marital property or non-marital property?

In Minnesota, wages are considered marital property. Therefore, any wage loss compensation arising out of a personal injury claims would be considered marital property. If medical expenses were an issue, they are a martial debt; therefore, any reimbursement for past medical expenses is a martial asset and should be divided between the parties.

On the other hand, it stands to reason that future wage loss payment and any future medical expenses are non- martial because a spouse is not liable for debts incurred after the divorce, nor is the spouse entitled to any additional monies received after the divorce.

Minnesota law says that your physical body is entirely yours and is, in essence, non-marital. Therefore, any monetary awards arising from pain and suffering incurred from an injury to someone’s body are non-marital since the body is not a marital asset. This includes losses arising out of pain, suffering, disfigurement, disability, and loss of enjoyment of life.

It is important to remember though that most personal injury cases settle and the settlement may not break the compensation down into categories, the way a jury would. This may make it difficult to determine which “category” the money received falls into. If you think you have a claim to your spouse’s personal injury settlement and you are in the midst of a divorce you should contact an attorney.

Tags: Divorce, Marital Property, Nonmarital Property, Personal Injury, Property Division, Settlement
Posted in Contested Divorce, Divorce Mediation, Legal Separation, No Fault Divorce, Property Division, Uncontested Divorce | No Comments »

The Basics of Guardianship and Conservatorship Law in Minnesota

Friday, October 30th, 2009

There are two arrangements that can be made if a person is unable to act on their own behalf: a Guardianship and a Conservatorship. When a person is unable to act on their own behalf, it means the person is incapacitated.

Minnesota Statutes say that incapacity is proven when the Petitioner (the person who is asking the court to appoint a conservator/guardian) can provide evidence to the court that:

the proposed ward/protected person is unable to make responsible personal decisions, and;
is unable to meet his or her needs.

What is a Guardianship?

A Legal Guardianship is a legal arrangement under which one person, a guardian who is appointed by a court, has the legal right and duty to care for another, the ward, because of the ward’s inability to legally act on his or her own behalf because they are a minor or because of mental or physical incapacity. Black’s Law Dictionary 707 (6th ed. 1990). Minnesota Statutes state that a guardian has the powers and duties over the ward’s person.

What is a Conservatorship?

A conservatorship is similar to a guardianship except that the conservator who has been appointed by the court has powers and duties over the incapacitated person’s estate.

Who needs Guardianship or Conservatorship?

A ward is a person who is under the custody or protection of another. Wards who have had guardians appointed are minors or incapacitated adults who are impaired to the extent lacking sufficient understanding or capacity to make or communicate responsible personal decisions and who have demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety. Minn. Stat. § 524.5-310.

In the case of guardianship of the person, and conservatorship an incapacitated person is:

”an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.” Minn. Stat. § 524.5-102, subd. 6).

Protected persons are those individuals who have had conservators appointed for them because they lack similar capacity and have demonstrated behavioral deficits regarding their estate or financial affairs. MS 524.5-401

Who is appointed guardian or conservator?

Whoever the court determines is in the best interests of the ward or protected person can be their Guardian of Conservator. The Court will consider the following factors:

current guardian;
kinship or familial relationship;
the reasonable preference of the ward or protected person.

Minnesota Statute says that the court is required to act in the best interest of the incapacitated person when considering who to appoint as guardian or conservator. Minn. Stat. § 524.5-309. Guardians and conservators must also submit to a criminal history and a background check.

In order to apply for a for the appointment to be guardian or conservator a Petition must be filed in the probate court of the county of residence of the proposed ward or protected person. A court hearing is required. The proposed ward or protected person should be present at the hearing. If the court finds that a guardian or conservator is needed, then a court will issue an order granting the Petitioner guardianship or conservatorship or both. At the hearing, the court may order the conservator of the estate to post a bond before the letters of conservatorship are issued. This will provide assurance that the ward or protected persons property and funds are secured. Letters of guardianship or conservatorship are evidence of the guardian’s or conservator’s authority to act on behalf of the ward or protected person.

The Court will want to order the least restrictive alternative to appointing a guardian or conservator. That means that if a suitable alternative to appointing a guardian or conservator is available the Court may order use of that alternative instead. For example, if the goals of the appointment can be accomplished by setting up a trust or a joint bank account, the court will go that route in lieu of a full-blown guardianship or conservatorship.

Tags: Conservatorship, Estate, Guardianship
Posted in Uncategorized | No Comments »

The Rights of Unmarried Fathers in Minnesota Family Court

Monday, October 12th, 2009

What are an unmarried Father’s Rights?

If a man and a woman are unmarried at the time of a child’s birth, the mother has sole legal and physical custody until the Court issues an Order stating otherwise. An unmarried father has to establish himself as the legal father of a child before he has any rights to ask for parenting time. Even if the parties are exercising parenting time and getting along, it is always best for the father to get his rights established through the Court system. Without a Court Order granting the father parenting time, the custodial parent (presumed to be the mother in these cases) could abruptly stop parenting time or not allow the father to see the child. In most cases, this is not in the child’s best interest, but she has the legal right to stop visitation unless paternity has been established.

How can an unmarried father establish paternity?

Paternity can be established in one of two ways:

By both parents signing a Recognition of Parentage (ROP). The ROP must be filed, and accepted by, the Minnesota Department of Health, Office of the State Registrar. An ROP does not automatically give the father the right to see the child. An ROP gives the father the right to go to court to ask for custody or parenting time. This is a “starting point” for a father to ask for legal rights.
By court order in a Paternity Action (Paternity Order). You may be granted some custodial or parenting time rights in the paternity action.

Parenting Time and Child Support

Even if an unmarried father is paying child support, he does not necessarily have legal rights to have parenting time with the child. Additionally, a father should not be told that he cannot see his child until he is current on his child support obligation. There are two different kinds of child support processes in Minnesota: one that uses a Magistrate and one that happens in District Court in front of a Judge.

An open child support case in front of a child support Magistrate is not the appropriate place to discuss parenting time or visitation. A child support Magistrate cannot hear issues on parenting time or visitation. The only time a child support Magistrate can decide an issue with parenting time and custody at a child support hearing is when the child support hearing is part of a hearing to establish paternity. Then the child support magistrate can issue an order about those issues the mother and father agree on, like custody, parenting time, or the name of the child.

However, if the motion or action is brought in District Court, the Judge has the power to hear all of the issues, including child support and visitation.

Can an unmarried father get 50/50 or joint physical custody?

The court looks at many different things the first time it decides custody. But the decision depends on the facts of each specific case. It is difficult to change a judge’s decision about custody after the decision has been made.

The court looks at the following 13 “best interest” factors to decide what is in the best interests of the child. This is for the very first time the court decides custody. These factors are:

What each parent wants for custody;
What the child wants. This only counts if the child is old enough. Generally a child must be at least 10 years old before a court will ask about what they want. But the court will look at each child’s situation and decide if the child is old enough or able to say what they want.
Who is the child’s primary caretaker;
The closeness of the relationship between each parent and the child;
The situation and relationship between the child and parents, siblings and other people who may play a big part in the child’s life (like grandparents or parent’s new partner);
The child’s adjustment to home, school and community;
The amount of time the child has lived in a stable and good environment and the need to maintain what the child is used to;
The permanence of the proposed custodial home. For example, does the mother or father have a new boy or girl friend? If they live together, how long has it been? Is it likely to last?
The mental and physical health of everyone involved;
The ability and willingness of the parties to give the child love, affection and guidance and to keep educating and raising the child in his/her culture or religion;
The child’s cultural background;
If there is, or has been, domestic abuse by one parent against the other. How has that affected the child?
The willingness of each parent to support and allow the child to spend time with the other parent (unless there is, or has been, domestic abuse).

The Court will take all of these factors into consideration when ordering custody. If parents do not agree on a custody arrangement, a parenting time evaluation may be ordered and then the evaluator will look at these factors and make a recommendation.

What if the Father is on the birth certificate?

Even if the father is on the birth certificate, he still may not be the legal presumed father. A birth certificate is not the legal proof of paternity in a court case. A father seeking to establish parenting time will need the certified ROP or a certified copy of the paternity order from the Court.

Tags: Custody, Father's Rights, Legal Custody, Parenting Time, Physical Custody, Unmarried Parents
Posted in Child Custody, Child Support, Paternity | No Comments »

Home Mortgages and Divorce in the State of Minnesota

Wednesday, September 30th, 2009

With the state of economy today many people are dividing up debt rather than assets in divorce. One of the biggest decisions divorcing parties must make is what to do with their home. It is more difficult these days for one party to qualify for a mortgage or to refinance a home than it was a few years ago.

Alan Burke is a Loan Officer for American Mortgage and Equity Consultants, Inc. He says, “If there is a home involved in a divorce, the home is awarded to one party or the other. The divorce decree can stipulate who the responsible party is for the home and the mortgage, but the credit impact does not end there for the other party, if the mortgage was taken out in both names. The other party will still have the mortgage reporting on their credit report, and will incur the ill effects of negative credit rating if the court-ordered party does not pay the mortgage as required.

“A mortgage is a contract. It is a commitment to repay the money that was loaned to you. Mortgage companies do not recognize divorce decrees, they recognize the parties who applied for the mortgage and expect all applying parties to adhere to the terms and conditions of the mortgage they signed for at the closing of the loan. Therefore, it is important to decide before the divorce what decision to make regarding the mortgage and how it can affect your personal credit.”

Questions to ask yourself about your home and divorce

Does it make more sense to sell the house before the divorce? Can one person qualify on their own to refinance the mortgage in just their name? Can one person afford the whole mortgage and their other financial responsibilities on their own after the divorce? If it’s not you, do you trust the other person to maintain timely payments on the mortgage, and other debts that are in both of your names? (just like the mortgage companies, credit card companies do not recognize divorce decrees, either)

Weighing your mortgage and credit options are very important when a relationship ends. Maintaining good credit will help ease the transition after the divorce. Being realistic of what your capabilities are to repay debt and what the other parties capabilities will be are very important to consider while determining post divorce responsibilities.

Tags: Divorce, Home, Mortgage, Property settlement, Refinance
Posted in Collaborative Divorce, Contested Divorce, Divorce Mediation, Legal Separation, No Fault Divorce, Property Division, Uncontested Divorce | No Comments »

Minnesota Third Party Custody

Monday, September 28th, 2009

Third Parties, grandparents and other relatives often become the primary care-providers and role models for children in situations where the biological parents are missing or unfit due to negligence, drug use, alcoholism, abuse or financial inability to care for the child.

Minnesota Statutes § 257C.03 governs the procedure for petitioning for child custody as an interested third party or de facto custodian. Whether a Petitioner (a person requesting or petitioning the court for custody) is classified as a third party custodian or a de facto custodian depends generally on the amount of time the child has been with the Petitioner and the nature of their contacts. However, for both classes of Petitioners, the procedure is generally the same.

Who is a De Facto Custodian?

“De facto custodian” means an individual who has been the primary caretaker for a child who has, within the 24 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of:

(1) six months or more, which need not be consecutive, if the child is under three years of age; or

(2) one year or more, which need not be consecutive, if the child is three years of age or older.

Who is an interested third party?

An interested third party can be a grandparent, aunt, uncle or other family member or person who can show that the parent has abandoned, neglected, or otherwise exhibited disregard for the child’s well-being to the extent that the child will be harmed by living with the parent and that placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both.

Minnesota Third-Party Custody Law requires a two-step process in which the Petitioner who satisfies certain statutory requirements would be entitled to an evidentiary hearing to prove their case. The area of third-party custody is a highly technical area of law, requiring that the pleadings be skillfully written and carefully follow the statute.

If the Petitioners fail to establish in their Petition that they are the de facto custodians of the child or that the placement of the child with the Petitioners is not in the child’s best interest, the Petition may be dismissed.

If you are caring for a child for whom you are not the biological parent, it’s important to file a motion for custody while the child is still living with you. Even though the child may be living with you, you do not have any legal right to make decisions for the child or perhaps even to seek medical care on behalf of the child until the Court specifically Orders it. If the biological parents take the child before you file the motion, custody is broken and it limits the consistent amount of care you provide to the child.

Tags: Child Custody, Child Support, Grandparent rights, Third Party Custody
Posted in Child Custody | No Comments »