Written By: GHL Law Firm | Published On: 12th April 2010 | Category: Child Custody, Child Support | RSS
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In the state of Minnesota, child support is determined based on both parents’ income and the amount of parenting time each parent is awarded. Custody labels such as “joint physical custody” or “sole physical custody” do not carry the weight that they once did. If the court is looking to determine the custodial arrangement for child support, they only look at the percentage of parenting time each party exercises or was awarded in a prior court order.
If a parent is on any form of public assistance (i.e.-food stamps or Minnesota Care insurance), the court cannot impute income to a parent. This means the court may only calculate child support based off of what the parents actually made for a gross monthly income. Otherwise, if public assistance is not involved in a case, the parties may argue that one party should have a certain income due to prior work experience or that the other party is willfully underemployed or unemployed. Most often, if one parent does not work and there is no clear income level to impute to them, the court will consider 150% of minimum wage for that party’s monthly income.
Once the parties’ income is established, the numbers are put into a child support calculator, available online. Both parents’ income is added together, giving a monthly income available for the child. each parent’s percentage of that total income is the percentage of responsibility assigned to them for child care expenses, medical insurance, and other unreimbursed costs related to the children.
While child support is calculated in a straight-forward way, it can be very confusing to parents looking to establish an amount of support or wondering if their child support obligation should be modified. If you have questions about how child support is calculated, call the family law attorneys at Heimerl & Lammers today.
Written By: GHL Law Firm | Published On: 6th April 2010 | Category: Child Custody, Contested Divorce | RSS
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When parents have decided to get a divorce but nothing has been done in court yet, they may not agree on what parenting time schedule should be used or who should stay in the home until all is said and done. Other parties are able to agree temporarily on those issues, but do not agree on how it should be decided for a final resolution.
When parents cannot agree on a temporary parenting time schedule, the court is usually involved. Either party is able to request a hearing to set temporary parenting time. It is temporary because it is subject to change once the divorce is final, but it gives the parents a guideline to follow for what parenting time schedule to follow. This helps give stability to the children, as the parents are not going to continually fight over which day each of them will have the children at their residence.
Temporary hearings are available to address almost every issue in your divorce. While it is all subject to change, temporary arrangements do help settlement negotiations to progress. Judges are not bound by what they temporarily award for custody, but it often is a good indication of what the judge would award if the issues are brought before the court for a trial.
While they are helpful tools to have, temporary hearings are not used in every case. Many times the parties are able to agree enough to handle a temporary schedule and they are not forced to bring the issue into court early in the proceedings. They are used more often in cases where the parties are unable to communicate and agree on what is in their children’s best interests.
Written By: GHL Law Firm | Published On: 29th March 2010 | Category: Child Custody, Child Support, Contested Divorce | RSS
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If either party to a marriage or other family law matter is an active service member, there are protections in place that may prohibit the action from going forward without them. This protection is under the Servicemembers’ Civil Relief Act of 2003 (formerly known as Soldiers’ and Sailors’ Civil Relief Act of 1940) . The purpose of this is to allow individuals to serve our country without the worry of legal actions occurring where they are unable to participate. Included in this are all civil actions, including divorce, paternity and child custody. Not included are hearings to determine child support.
If a servicemember comes home from active duty and finds that a judgment was entered in court without their consent or knowledge, the service member may be able to have the judgment voided. If the service member finds out that some legal action has started, they are able to request a stay, forcing the court action to be postponed.
This act can protect servicemembers from having to make important decisions when they are not fully able to devote attention to the matter. Both parties’ military status is required to be disclosed at the start of any legal proceedings, so the court will be on notice from the start if there are special issues in your case. For more information on this act, visit the Department of Defense’s website.
Written By: GHL Law Firm | Published On: 22nd March 2010 | Category: Child Custody | RSS
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Minnesota does not recognize same-sex marriage. Of course there are still families of same-sex couples, and custody matters need to be decided. How do the courts in Minnesota determine these issues?
A couple is able to establish custody and visitation rights at any time, even if they are still in a relationship together. That can be helpful to set parameters and make sure both parties have rights in case something goes wrong in the relationship. However, if the parties are residing together, issues of parenting time and who is the custodial parent may not be determined.
Another solution is for the party who may not be the biological parent of the child to adopt. What happens if the parties do not plan ahead when they are involved in the relationship and do not have any parental rights to enforce in court?
An individual may be able to bring a request for custody and/or parenting time under Minnesota Statutes establishing third party custody. There are requirements for how long you were involved in the child’s life and what role you had in raising the child. If you meet the standards, you may still be able to get parenting time or custodial rights even though you are not recognized as the child’s parent under the law.
There are very technical requirements to be able to bring a third party custody matter. If you are interested in pursuing a third party custody case or have questions as to whether you may fit the statutory requirements, contact a family law attorney at Heimerl & Lammers today.
Written By: GHL Law Firm | Published On: 15th March 2010 | Category: Contested Divorce | RSS
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Trials in Minnesota divorce cases are very rare. In practice, probably 99% of cases settle either prior to any court involvement or during court. This is done by the parties agreeing to the issues, generally with the help of a neutral third party (a mediator) or just the parties’ attorneys negotiating a settlement that both parties are comfortable with. If a case goes to trial, generally no one is completely satisfied with the results.
However, there are some cases that just need to be tried. It may be that one party is completely unreasonable and will not come to the table to negotiate a settlement, or it may be that one party just needs their day in court for closure and to feel as though they have really been heard.
Whatever the reason for the trial, in divorce cases they are always “bench trials”, meaning that the judge decides all issues and there is not a jury present. Both sides are able to present witnesses and submit materials into evidence for the court to consider. Then, each side tells its story through testimony. Usually the court will ask the attorneys for written submissions at the end. The court has up to 90 days to issue an order resolving the matters discussed in trial; it is uncommon that you would walk out of your divorce trial and know exactly what the court is going to rule on all issues on that day.
If you have a case that is going to trial, it is a very good idea to retain an attorney to represent you. When you represent yourself, you are held to the same standard you would be if you were an attorney yourself. You are expected to know the rules of procedure, how to examine witnesses, how to present evidence to the court, and what objections are proper. The court does not give much leeway to individuals representing themselves in a trial, and you can get yourself into trouble when you don’t know what you are doing. The cost of retaining an attorney upfront is probably much less than the cost of trying to fix problems that may occur if you try to handle a trial unrepresented.
Written By: GHL Law Firm | Published On: 8th March 2010 | Category: Child Custody, Contested Divorce | RSS
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In the news recently, there has been coverage of a case in Chicago where the parents disputed what religion to raise the child and the father faced contempt of court for exposing the child to his religion. While standards may be different in Illinois, it does raise the question, who decides what religion minor children will be exposed to?
In the state of Minnesota, religion is considered an issue dealt with through legal custody. If the parents can agree on the bigger issues in a child’s life, such as religion or where the child will attend school, the court will often grant joint legal custody and allow the parents to make those decisions together. However, if there has been domestic abuse or there is a clear indication that the parents are unable to communicate and work out disagreements over legal custody matters, the court may grant sole legal custody to one parent over the other.
If one parent has sole legal custody and the other parent violates it by exposing the child to another religion, the parent with legal custody may file a motion asking the court to hold the offending party in contempt of court. This basis for this is that the offending party violated a court order and is not following the terms that the court set out. The offending party is given the opportunity to admit or deny that they violated the order, and if the court finds they did violate it then purge conditions must be set to rectify the situation. The party would not go directly to jail; jail is not meant to be a punishment, but rather a tool to gain compliance of that party.
If you do not have legal custody but would like the court to consider allowing you to address your religious beliefs or other matters, you are able to file a motion with the court. The court may look at the issue and if the judge finds it is in your child’s best interests, they may order something other than what the parent with sole legal custody would like.
If you have questions about legal custody and your rights, call the attorneys at Heimerl & Lammers for a free initial consultation today.
Written By: GHL Law Firm | Published On: 1st March 2010 | Category: Alimony, Contested Divorce, Divorce Mediation, Property Division, Uncontested Divorce | RSS
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Spousal maintenance, formerly known as “alimony”, is not as common as is often believed. The typical spousal maintenance case involves a long-term marriage where one spouse did not work outside of the home, but rather stayed home and cared for the children or the household. They either have no higher education or it is outdated, causing the need to obtain more schooling to be able to work in the field.
Spousal maintenance can either be permanent or temporary in nature. There is nothing in the statutes to favor temporary spousal maintenance over a permanent award.
The court looks at multiple factors to determine if spousal maintenance is appropriate, but the biggest factors to consider are the need of the spouse requesting maintenance, the ability of the other spouse to pay, and the standard of living established during the marriage.
Therea re tax implications for characterizing a settlement as a maintenance payment rather than a property settlement. If the divorcing parties have enough assets to arrange for a property settlement to support the receiving spouse, it may be the better option. However, there are benefits to each option and they should be weighed in discussions with your Minnesota divorce attorney.
Written By: GHL Law Firm | Published On: 22nd February 2010 | Category: Child Custody, Child Support | RSS
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In the state of Minnesota, the way child support is calculated underwent a major change in 2007. Child support is now calculated by a strict formula, taking into account each parent’s gross monthly income and the amount of parenting time that is exercised by the non-custodial parent. The parenting time is divided into three ranges, and an adjustment is applied to the base child support award based on the parenting time the parent has been awarded by a court: 0-10%, 10-45%, and 45-50%.
The court has made the child support calculator available online on the Minnesota Department of Human Services website. If you have questions about the amount of child support you may be awarded, it is a good idea to start there and experiment with income figures.
If a parent is under- or un-employed, the court may impute income to them. Income may be imputed to an amount that they are capable of earning, have earned in the past, or a default amount of 150% of minimum wage (approximately $1,702.00 per month). If after child support has been awarded there are changes in a parent’s income, the court may modify the child support award. This is done through a motion filed by the party requesting the change. The court will look at the request, see if it qualifies as a change in circumstances defined in Minnesota Statute § 518A.39, and determine if a modification would be appropriate.
If you have questions about child support in general, or more specific questions about your case, call the family law attorneys at Heimerl & Lammers today.
Written By: GHL Law Firm | Published On: 15th February 2010 | Category: Child Custody, Contested Divorce, Domestic Abuse | RSS
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Sometimes when parties are nearing the point of divorce or a custody battle, there is an incident of domestic abuse that occurs between the parties. If the domestic abuse extends to the children, where they either witnessed or were part of the abusive event, the court may restrict parenting time or any contact between the abuser and the children. The effect of this is clear on any custody dispute: if there is a protective order in place barring a party’s contact with their children, they will not be able to have contact through the family matter. The provisions of the Order for Protection will extend to the family law case, and short of the parties agreeing to modify those terms, it will last the full time of the protective order (generally two years).
This can have long-term effects on custody as well. The abuser may not be prohibited from having any relationship in the future, but it is difficult to overcome an abusive past to reestablish a relationship with your children. The abuser and children will probably go through some reunification therapy and gradually work to develop a relationship and trust again.
If an Order For Protection only protects one parent from the other but the children are not involved, there will generally be parenting time involved. An Order For Protection does make it more likely that the court would order sole legal custody, meaning that the custodial parent would have the sole right to make the big decisions in the children’s lives. However, there would be parenting time arranged through a third party or through a safety center.
The parenting time awarded to parents in abusive relationships varies depending on the unique circumstances of each case. If you have questions about parenting time in your family law case, contact the family law attorneys at Germscheid, Heimerl & Lammers today for a free consultation.
Written By: GHL Law Firm | Published On: 11th February 2010 | Category: Contested Divorce, Divorce Mediation, Uncontested Divorce | RSS
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The divorce process is very emotional and sometimes the parties have mixed feelings going through it. The parties may not be in agreement to go forward with the divorce. So what happens if during the divorce process, after filing, the parties decide to give the relationship another try?
When a case has already been filed with the court and started, it may make sense to have the court place the case on “inactive status.” Inactive status allows the parties to keep the court file open for up to one year while they try to save their relationship and avoid finishing the divorce process. If the parties have not come back to court within the year, then the court file is automatically closed. However, if things do not work out and the parties decide to go forward with the divorce, they are able in that year to just contact the court and start again where they left off. This allows the parties to save the additional cost of having to re-file a case and start over from the beginning of the case.
Parties are also able to drop their divorce case altogether if they are confident that they will be able to reconcile. It makes no difference to place the case on inactive status though, so it generally is a good way to handle your case if you have any doubt that reconciliation will work.